What is incompetency?

Introduction

The terms “incompetency” and “incompetence” refer to a state of diminished mental functioning that, for example, precludes an individual from giving informed consent to go undergo a particular medical procedure. Other contexts in which the issue of incompetency—or its obverse, competency—might arise include competence to consent voluntarily to psychiatric hospitalization, competence to give informed consent to participate in research, and competence in right-to-die issues, such as requesting physician-assisted suicide. In legal contexts, situations requiring determination of whether an individual has the requisite mental abilities for competent decision making include competence to execute a will, competence to enter a plea, competence to stand trial, competence to waive Miranda and other constitutional rights, competence to waive death sentence appeals, and competence to be executed.

Psychologists and other mental health professionals rarely use the terms “incompetency” and “incompetent” because they imply a global deficit that has little practical meaning or application. Alzheimer’s disease patients, for example, are at risk for autonomy-restricting interventions, including institutionalization and guardianship. As greater attention is paid to preserving individual rights, increased emphasis is placed on identifying, in functional terms, specific mental tasks and skills that people retain and lose. “Mental capacity” is the term used to describe the cluster of mental skills that people use in their everyday lives. It includes memory, logic and reasoning, the ability to calculate, and the mental flexibility to shift attention from one task to another. Describing a person’s ability or mental capacity to perform particular tasks, such as remembering to pay bills or calculating how much change is owed, enables professionals to assess vulnerability more effectively and develop suitable treatment and service plans.

Medical decision-making capacity is defined as the ability to give informed consent to undergo a particular medical test or intervention or the ability to refuse such intervention. Capacity may extend to the question of disclosure of sensitive confidential information or an individual’s permission to participate in research. When a legal determination of competency has not been made, decisional capacity is used to describe an individual’s ability to make a health care decision.

Conditions and Factors Affecting Mental Capacity

Among the conditions that affect mental capacity are mental retardation, mental illness, and the progressive dementia seen in older adults. There are also a variety of other medical conditions that can interfere with mental capacity—for example, the encephalopathy seen in patients with advanced liver disease. It should be noted that capacity can and will vary over time, either as a disease process progresses, as in a dementing illness, or as clinical conditions wax and wane, as in a patient with a bipolar disorder. In the case of delirium, for example, a patient may be capable of participating in treatment decisions in the morning but incapable of making a decision at a later point in that day. A variety of factors, some of which are treatable, may contribute to mental decline. These include poor nutrition, depression, and interactions among medications.

Mental, or decision-making, capacity is also treatment- or situation-specific. For example, a person may have the ability to agree to a diagnostic procedure, yet be unable to comprehend fully the consequences of accepting a particular medication or surgical intervention. When assessing capacity, one is determining whether an individual is capable of deciding about a specific treatment or class of treatments rather than making a global determination of incompetence. A person will sometimes be found to have the capacity to make some decisions and yet not others, especially when more complex information must be presented and understood.

The Role of the Mental Health Practitioner

Psychologists and other mental health practitioners are often asked to evaluate a person’s cognitive functioning to determine whether the individual is competent, for example, to execute a will or to assign power of attorney. For individuals obviously in mental decline, the role of the psychologist is to determine whether it is appropriate to appoint a guardian to manage the person’s financial affairs and to make medical decisions regarding long-term care. To determine treatment decision-making capacity, the psychologist assesses the individual’s understanding of the disorder and the recommended treatment, appreciation of the situation and treatment choices, ability to reason and evaluate options and consequences of choices, and ability to express a choice.

Given the lack of consensus on both the exact criteria and the method for assessing mental competency, it is important that psychologists undertake a broad examination to determine an individual’s ability to make decisions affecting his or her own welfare. A competency evaluation begins with a review of the person’s medical and psychological records and history, with information being supplied by family members as well as the individual being evaluated. Following the record review, the individual is seen for a clinical interview, which includes several measures of orientation, short-term memory, and reasoning ability.

Following the clinical interview, psychological testing is administered for an objective assessment of cognitive functioning. The psychologist then offers an expert opinion, based on the evaluation, regarding whether the person is capable of making decisions regarding his or her welfare and finances.

This process is also done retrospectively at times, for example, to determine if an individual was competent when the person’s last will was executed. The competency evaluation has been characterized as an iterative process in which the clinician is both assessing and attempting to maximize the individual’s capacity and autonomy.

Instruments for Making Assessments

Although there is no definitive assessment instrument or battery of instruments that should be used to determine competency, a variety of commonly used instruments are available to the psychologist. Personality tests such as the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and the Personality Assessment Inventory (PAI), can be used to assess both abnormal and normal personality traits. The Wechsler Adult Intelligence Scale-IV (WAIS-IV) can be used to assess overall intelligence. If organic brain damage is suspected, the Luria-Nebraska, a neuropsychological test, can be administered.

There are a variety of instruments that are specifically designed to look at competency issues, including Capacity to Consent to Treatment Instrument (CCTI), the MacArthur Competency Assessment Tools, the Competency Screening Test (CST), the Competency to Stand Trial Assessment Instrument(CAI), the Interdisciplinary Fitness Interview-Revised (IFI-R), the Georgia Court Competency Test (GCCT), the Evaluation of Competency to Stand Trial-Revised (ECST-R), the Aid to Capacity Evaluation, and the Competence Questionnaire (CQ), for which versions for pediatric medical patients and children in the juvenile justice system have been developed. The reliability and validity of all these instruments varies, and many of them were developed for very specific subjects. This must be kept in mind when they are employed in an evaluation.

Competency in the Legal Context

Often, forensic mental health professionals are called on to make a determination regarding a person’s competency in a legal context. Psychologists may be asked to determine a person’s competency to stand trial, to waive rights, to enter a plea, or to be executed. This deals specifically with whether the person was cogent of his or her actions and the results of those actions. This question may revolve around present-time actions or actions in the past. Assessing competency in the past can be particularly difficult. The psychologist’s report would include psychiatric, medical, and substance abuse history, as well as results from mental status and psychological testing. A key part of the evaluation is the determination of the defendant’s ability to understand the proceedings. Within the legal system, competency of adults is assumed, and the burden of proof rests on the individual questioning competency. Competency evaluations are often required for children in the juvenile justice system, and young children are assumed to not be competent.

The courts recognize a difference between competency and credibility in a court of law. An individual may be deemed to be incompetent, meaning that they have diminished capacity to understand; however, they may still be a credible witness, meaning that they can still relate (often to a judge or jury) events that have occurred. An individual may not be aware of what it means to waive rights, yet may still be able to tell the jury his or her whereabouts at the time a crime was committed.

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