J O E G U L L E TT

COMPETENCY TO CONSENT TO RESEARCH

AND TREATMENT

DECISIONAL V. PROCEDURAL CAPACITY

• Decisional capacity – The capacity to makeimportant legal decisions

• Procedural capacity – When a person can understand the nature and consequences of proceedings

JACKSON V. INDIANA

• The courts have authority to commit incompetent defendants for mental health treatment involuntarily• It is not constitutional to hold someone strictly for

treatment to restore competency longer than the person would have been held if convicted of the crime. • Criminal defendants can be held longer if they are

considered dangerous to themselves or others as a result of mental illness.

18 U.S.C., § 4246• Allows continued commitment of an incompetent defendant

who is judicially determined to:

"presently suffer from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another”

• Only applies until a "suitable” (i.e., safe) state placement is found, or the defendant is no longer dangerous because of mental illness.

• Involuntary commitment for treatment to restore competency to proceed does not necessarily mean treatment with psychiatric medications.

RIGGINS V. NEVADA (1992)

• The U.S. Supreme Court provided vague guidance regarding medicating incompetent defendants.

• The justices indicated:"treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of [the defendant's] own safety or the safety of others“

• They did not spell out whether involuntary treatment simply to restore competency was appropriate

OTHER FACTORS RELATED TO COMPETENCY

• The ability to consult with his or her lawyer implies capacity to do so rather than desire to do so. • It is not unusual for criminal defendants not to want

to cooperate with counsel for reasons not rooted in mental illness. • The ability to identify the motivation for this lack of

cooperation is the task of the forensic evaluator. • If the forensic neuropsychologist believes the

defendant is not competent, it is his or her responsibility to provide prognostic considerations and outline remedial options from a clinical perspective.

OTHER FACTORS INFLUENCING COMPETENCY

• Even if a patient is found to have the necessary cognitive functioning skills to be declared competent, their emotional states may be a barrier to adequate functioning

Example: The patient can clearly state the pros and cons of a necessary life-saving medical treatment but simply “doesn’t care” whether he or she lives or dies

BUT YOU REALLY NEED IT -- TRUST ME I’M A PHILOSOPHICAL DOCTOR!

• Despite the fact that a patient might refuse treatment that you know would benefit them, if they are found with a formal assessment to have…

• Intact reasoning and decision-making skills• Absence of significant psychiatric or emotional barriers• Relatively sound neuropsychological functions

• … their desire to not pursue treatment must be respected.

TREATMENT CONSIDERATIONS

Grisso (1988) pointed out these issues to consider:

• Whether the defendant's deficits are remediable;• If so, the treatment that is required for

remediation;• How long the remediation is likely to require;• The local facilities or programs in which the

treatment is available; and• The conditions of restriction represented by each

of these facilities.

TREATMENT CONSIDERATIONS

• Courts may have the option to place defendants in community treatment or rehabilitation programs.

• Federal law dictates that U.S. district judges are to commit incompetent defendants to the custody of the U.S. attorney general for inpatient mental health treatment focused on competency restoration (Title 18, U.S.C., Section 424ld).

• A definite aspect of this commitment is an additional assessment of competency to proceed.

TREATMENT GOALS

• The goal of treatment is remediation of deficits sufficient to restore competency.

• This level of therapeutic outcome is likely lower than that espoused in general clinical rehabilitation.

• The ultimate goal is the ability to advance successfully through legal proceedings rather than successful independent living and community reentry.

RESEARCH CONSENT AND COMPETENCY

• A diagnosis of dementia or other neurological or psychiatric disorder is not synonymous with incompetence.

• A patient who meets the NINCDS-ADRDA criteria for probable AD may be competent to • consent to medical treatment or research • perform other activities such as driving or managing

financial affairs.

RESEARCH CONSENT AND COMPETENCY

• In making determinations of competency, the examiner must perform a functional analysis• The examiner must consider whether the individual

possesses the skills and abilities integral to performing a specific act in its context.

• Although, diagnosis is a relevant factor in evaluating competency, it:• conveys no specific functional information• cannot by itself be dispositive of the competency

question

RESEARCH CONSENT CAPACITY IN MCI

• A 2008 study examined cognitive correlates of decisional capacity in a sample of individuals with MCI (n=40) and 40 cognitively intact older adults. • The authors assessed capacity to give informed

consent for a hypothetical clinical trial, as well as examined neurocognitive functioning across a variety of cognitive domains. • Results from this study indicate that individuals

with MCI perform more poorly than controls on measures of decisional capacity, particularly understanding and reasoning.

Jefferson, 2008

RESEARCH CONSENT CAPACITY IN MCI

• The data also indicate that executive dysfunction is associated with impaired decisional capacity in MCI. • This finding contrasted with the Larrabee group's

prior observation that verbal memory is preeminent as the predictor in MCI. • Overall, this study showed that decisional

capacity declines in MCI occur in both research and clinical settings• suggests that consent capacity be carefully evaluated in

potential research participants with MCI