In the continuing case of the Boston bombing suspect Tsarnaev, news organizations today report that a legal proceeding was held in his ICU room with a magistrate, federal prosecutors, and defense attorneys. The patient was read his rights by the magistrate in Beth Israel Deaconess Hospital and was given the charges against him.
While we are not attorneys, it is important and interesting to note that if the proceeding planned was an upcoming medical one and not a legal one, the patient would almost certainly not meet the requirements for competency, consent, and capacity to make a decision that would allow the procedure to proceed. A chief reason is that the patient is no doubt under or has recently been under the effects of narcotics and benzodiazepines.
Consent can be obtained only from a patient, legal guardian, or advocate who is “competent.” Competency is a legal matter. It is a determination made by a court of law that an individual has the requisite abilities to make certain decisions such as those pertaining to medical care, daily aspects of life, personal finances, etc.
It follows that a patient who has taken or been given mind-altering drugs (i.e., anxiolytics or narcotics) or who is in significant pain may not be able to give a valid consent.
One common mistake in obtaining consent and assessing competency is to confuse competency with capacity for decision making. Capacity for decision making in contrast to competency is a clinical determination.
There are four recognized and legally validated components to decision-making capacity; understanding, appreciating, formulating or reasoning, and communicating a choice:
1) The patient must understand the known risks and benefits of the treatment and its alternatives
2) The patient must be able to appreciate their clinical condition relative to the proposed treatment plan
3) The patient must be able to formulate a plan for himself or herself, that is, have the intact ability to consider these factors appropriately in arriving at a reasonable decision
4) The patient must be able to communicate his or her decision in a manner that demonstrates the ability to weigh appropriately the pertinent risk/benefit issues and their reasons for arriving at the decision. The patient must also demonstrate the ability to both ask and answer appropriate questions relating to his or her decision.
Based on the above reasoning, a patient who is on a breathing machine with multiple gunshot wounds and is being administered pain medicine and sedatives would never be considered either competent or to have a capacity for a decision to make medical decisions.
It is interesting to ponder if the suspect is being accompanied by a defense attorney in the ICU on a around the clock basis along with the interrogation team and whether they are advising him not to answer any further questions.