COMPETENCY AND THE LAW
From Forensic Psychiatry Review Course, sponsored by the American Academy of Psychiatry and the Law
Phillip J. Resnick, MD, Professor of Psychiatry, Case Western Reserve University School of Medicine, Cleveland,
OH
| Competence: law recognizes several types of competence, each with its own legal standard; broad definition
of competence “that degree of mental soundness necessary to carry out a legal act”; general test is whether
person understands nature of act in question and is aware of duties and obligations entailed; in law, all
adults presumed competent, and burden of proof falls on party who wishes to establish incompetence; to be
considered incompetent, person must have mental disease that causes defect in judgment; that defect in
judgment must cause specific incapacity relevant to legal issue at hand
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| Testamentary capacity: competence to write will; requires that 1) testator must understand that he or she is
writing will and that will is instrument to distribute his or her property; 2) testator must understand “extent
of his [or her] bounty,” ie, extent of assets and property; 3) testator must understand who has “natural
claims” on his or her estate (eg, children, grandchildren, servants who have served loyally for many years);
4) testator must understand how estate will be distributed; threshold for testamentary capacity considered
“low” (eg, testator may be very ill and/or very impaired, but as long as 4 requirements above met, he or she
has testamentary capacity); when will contested, burden on challenger to prove testator not competent to
write will, and burden in most states “clear and convincing evidence”; undue influence—can be shown
even in person who has testamentary capacity; occurs when someone manipulates or deceives testator with
intent of causing him or her to change will; effect is to impair testator’s ability to decide freely about distribution
of property; there must be element of coercion, compulsion, or restraint, such that document does
not represent free will of testator; undue influence can cause will to be voided, even though testator has testamentary
capacity
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| Competence to enter contract: any contract not valid if one party did not have true understanding, due to
mental illness, of what he or she was contracting to; ie, lack of understanding must be due to mental illness,
not to ignorance or lack of sophistication; greater competence required to enter into contract than to write
will because of adverse interest (eg, presence of ≥1 other parties who want to negotiate for better terms; individual
must be able to defend own interests in negotiations); marriage considered contract, but threshold
of competence low (“the law just winks at this business about competence to get married”)
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| Parental fitness: factors considered include severity of parental mental illness, substance abuse, or mental retardation;
parent must have capacity to “parent the special needs of the particular child”; determination of
competence specific to each case; if child has special needs, custody awarded to parent who has capacity to
meet those needs
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| Guardianship: guardian of estate—manages only money; can be person or business entity (such as trust department
of bank); may be appointed if ward’s money lost through squandering, hoarding, and/or being
victim of disreputable persons; competence to manage money specific to amount of money involved (ie,
it takes more competence to manage, say, $100,000 estate than to manage $500 monthly check); having
values that differ from those of would-be guardian does not constitute incompetence (eg, if man wants to
spend his money on alcohol and women, that does not mean he is incompetent); guardian of person—
takes over total responsibility for ward, including deciding where he or she lives; must be demonstrated
that ward lacks ability to provide basic needs of food, clothing, and shelter for self or family; many state
statutes vague about this issue; however, court declaration of incompetence results in restriction of
ward’s legal rights (eg, he or she may not enter into contract or lawsuit and may not control own money);
some states more restrictive than others, and most states prefer least restrictive guardianship arrangement
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 | Basic assumptions: need for guardianship must be proven; guardianship must be of least intrusive form;
having guardian robs person of his or her dignity and autonomy, and guardianship should be least restrictive
arrangement that meets ward’s needs; several federal agencies, such as Social Security and
Veterans’ Affairs, have programs that offer alternatives to full guardianship of person; in some cases,
durable power of attorney or trust may be all that is necessary; any competent adult can be guardian,
but some states require that guardian reside in same state as ward
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| Competence to consent to treatment: components necessary for informed consent are knowledge, competence,
and voluntariness; knowledge—what information must be disclosed? court ruled that “the test should be the
materiality of the information,” meaning what ordinary person would want to know before he or she allowed
treatment to be administered; patient’s right of self-decision shapes boundaries of health care provider’s duty
to reveal; in one case, for example, court ruled that patient must be informed of risks associated with not allowing
diagnostic procedure; information conveyed to patient must include nature of condition, effects of
treatment, risks and benefits of treatment, and alternative treatment; competence—does patient have ability to
communicate choice? unconscious patient, eg, would not; does patient have ability to understand relevant information?
does patient have ability to appreciate his or her situation and its consequences? does patient have
ability to manipulate information relevantly and rationally and to apply it to his or her own situation? United
States Supreme Court Justice Benjamin Cardozo once said, “every person of adult years and sound mind has
a right to determine what shall be done with his own body”; whether patient’s decision “right” or “wrong” determined
by risk-benefit ratio; with favorable risk-benefit ratio, test of competence low if patient consents and
high if patient refuses (ie, if patient consents, competence not questioned; but if patient refuses, competence
may be questioned); if risk-benefit ratio unfavorable, test of competence high if patient consents and low if
patient refuses; voluntariness—difficult to measure coercion, but there must be recognition of power differential
between health care provider and patient
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| Exceptions to informed consent: emergency—in which patient possibly unconscious, there is risk for imminent
loss of life or limb, no surrogate decision-maker available, and no advance directive on file; in psychiatric patients,
emergency often described as sudden marked change leading to danger or serious deterioration; “in an
emergency, do it and document it”; courts usually do not question that treatment was emergent; incompetent
patient—see above; if patient not competent, substitute decision-maker must consent; waiver of privilege—
patient has right not to be informed as long as he or she is competent to understand ramifications of refusing to
be informed; therapeutic privilege (therapeutic exception)—if explanation of risks and benefits would make patient
worse or be so emotionally upsetting that he or she could not make rational decision, health care provider
can elect not to inform patient and obtain consent, but inform substitute decision-maker and have him or her
give consent; must be documented contemporaneously; rarely used in United States
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| Hypothetical case: 75-yr-old unmarried man has no children and is fully coherent; has bleeding ulcer with
estimated risk for death 90% if untreated, but 95% curable with surgery; patient refuses to consent to surgery
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| First reason for refusal: patient has been diagnosed with terminal lung cancer and given ≈1 mo to live; does
not want life extended; refusal considered competent
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| Second reason for refusal: patient wants his death to be symbolic protest against political stance; intends to
have wide media coverage; refusal still considered competent; even though gesture not likely to change
political situation, patient understands ramifications of his decision and has right to use his own death to
make symbolic protest
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| Third reason for refusal: patient in acute delirium tremens and is confused; refusal considered non-competent
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| Fourth reason for refusal: patient has schizophrenia with delusions, but refuses surgery for same reason as
first hypothetical scenario (terminal lung cancer); refusal considered competent because delusions not
relevant to proposed surgery and because patient understands that not having surgery will probably lead
to his death
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| Competence to consent to participate in research: person who is involuntarily institutionalized (eg, in
prison or psychiatric hospital) considered not competent to consent to participate in research because “this
is such an inherently coercive environment that informed consent [cannot] be accepted, not on the information
aspect, but on the coercive [aspect] and the power differential” between detainee and researcher; specific
case in which court ruled involved sexual psychopath asked to participate in research to determine
whether surgery on amygdala would reduce penchant for violence; court said, “a person involuntarily detained
cannot give legally adequate consent to an innovative or experimental procedure on the brain where
the danger is high and the risks are incapable of assessment”; since this decision, prison wardens reluctant
to allow prisoners to participate in research
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| Competence to stand trial: defendant must understand nature of charges and proceedings, and must be able
to cooperate with his or her attorney in preparation of defense; in most jurisdictions, to be civilly committed,
“a person, by reason of mental disorder, must be a danger to himself or others”
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| Case example: patient admitted to psychiatry service after having hallucinations (voices were telling him that he
had committed rape); after examination—determined to have testamentary capacity (eg, he understands value of
his estate, natural heirs); may need guardian of estate—patient has problems with mathematics and memory;
mathematical deficit can be compensated for with calculator, but since patient writing bad checks, “he not only
has a theoretical problem, but he’s practically having a problem paying for things”; memory problems could
cause him to sell estate for less than its true value; may need guardian of person—if patient has fairly severe dementia;
if family unable or unwilling to care for him; least restrictive situation would be for him to live with family;
patient lacks insight and does not realize he is impaired, probably precluding his ability to live
independently; if patient lives with family, probably not civilly committable, but “if he insisted on living alone
where he would be endangering himself he may be”; although patient has good understanding of criminal justice
system, he also has cognitive impairment, which probably precludes his being able to stand trial (his memory
impairment would render him unable to remember evidence and discuss it with counsel)
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| Summary: competence always legal decision, not medical; although mental health provider may be asked
to examine patient for incapacity, “only the court can formally determine competence”; competence always
specific to particular issue; because standards differ for each area of competence, if asked if patient
is competent, mental health provider should ask “competent for what?”; there is always presumption of
competence
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Suggested Reading
Akinkunmi AA: Competently assessing competence to stand trial can be trying. J Am Acad Psychiatry Law
34:189, 2006; Bartlett P: The test of compulsion in mental health law: capacity, therapeutic benefit, and dangerousness
as possible criteria. Med Law Rev 11:326, 2003; Buchanan A: Competency to stand trial and the
seriousness of the charge. J Am Acad Psychiatry Law 34:458, 2006; Byatt N et al: Involuntary hospitalization
of medical patients who lack decisional capacity: an unresolved issue. Psychosomatics 47:443, 2006; Crowley
B: Assessing civil competence. J Psychiatr Pract 12:402; 2006; DuVal G, Salmon C: Research note: ethics of
drug-treatment research with court-supervised subjects. J Drug Issues 34:991, 2004; Frolik LA: The strange
interplay of testamentary capacity and the doctrine of undue influence. Are we protecting older testators or
overriding individual preferences? Int J Law Psychiatry 24:253, 2001; Hill SA et al: Assessing decision-making
capacity: a survey of psychiatrists’ knowledge. Med Sci Law 46:66, 2006; Hotopf M: The assessment of
mental capacity. Clin Med 5:580, 2005; Kim SY: When does decisional impairment become decisional incompetence?
Ethical and methodological issues in capacity research in schizophrenia. Schizophr Bull 32:92,
2006; Melamed Y et al: Guardianship for the severely mentally ill. Med Law 19:321, 2000; Mendelson D:
Assessment of competency: a primer. J Law Med 14:156, 2006; Richardson G: Autonomy, guardianship, and
mental disorder: one problem, two solutions. Mod Law Rev 65:702, 2002; Saks ER, Jeste DV: Capacity to
consent to or refuse treatment and/or research: theoretical considerations. Behav Sci Law 24:411, 2006; Saks
ER: Involuntary outpatient commitment. Psychol Public Policy Law 9:94, 2003; Savulescu J, Kerridge IH:
Competence and consent. Med J Aust 175:313, 2001; Schopp RF: Outpatient civil commitment: a dangerous
charade or a component of a comprehensive institution of civil commitment? Psychol Public Policy Law 9:33,
2003; Shulman KI et al: Psychiatric issues in retrospective challenges of testamentary capacity. Int J Geriatr
Psychiatry 20:63, 2005; Warren JI et al: Opinion formation in evaluating the adjudicative competence and
restorability of criminal defendants: a review of 8,000 evaluations. Behav Sci Law 24:113, 2006; Wong JG et
al: The capacity of people with a ‘mental disability’ to make a health care decision. Psychol Med 30:295,
2000.
Educational Objectives
| The goal of this program is to explain the laws regarding competence and implications for clinicians when assessing
mental capacity. After hearing and assimilating this program, the clinician will be better able to:
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| 1. Define competence in general and describe criteria that must be met for a determination of incompetence.
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| 2. Discuss several types of competence, including testamentary capacity, competence to enter a contract,
and parental fitness.
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| 3. Distinguish between guardian of estate and guardian of person.
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| 4. Determine whether patients are competent to consent to treatment, to refuse treatment, to participate in
research, or to stand trial.
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| 5. Explain the exceptions to informed consent.
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Faculty Disclosure
In adherence to ACCME Standards for Commercial Support, the Audio-Digest Foundation requires all faculty
members to disclose relevant financial relationships within the past 12 months that might create any personal
conflict of interest. Any identified conflicts were resolved to ensure that this educational activity
promotes quality in health care education and not a proprietary business or commercial interest. For this program,
the speaker reported nothing to disclose.
Acknowledgements
Dr. Resnick was recorded at The Forensic Psychiatry Review Course, held October 23-25, 2006, in Chicago, IL,
and sponsored by the American Academy of Psychiatry and the Law. The Audio-Digest Foundation thanks
Dr. Resnick and the Academy for their cooperation in the production of this program.
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