Informed Consent / Competency

Question 1

A Person Cannot Legally Consent Unless:

Answer 1

He or she is properly informed about the nature, risks, and benefits of that course of action.

Question 2

Constitutional Basis for Informed Consent

Answer 2

The 14th Amendment

Question 3

Three Legal Elements of Informed Consent

Answer 3

1. Voluntariness (no manipulation, coercion, or deception)
2. Disclosure (need all relevant information necessary to make a “good” decision)
3. Capacity (mental ability to consider the information; appreciate that information; and to say yes or no)

Question 4

Origins of Informed Consent

Answer 4

1960s/1970s - Grew out of legal doctrine and case law. Created as a new cause of action for patient’s interest. Medicine imported the concept from the law.

Question 5

Miranda v. Arizona (1996)

Answer 5

Suspect detained and questioned for rape at knifepoint. Confessed during questioning. Was not aware of is constitutional rights at the time. Sentenced to 20-30 years; appealed. Argued that his confession was coerced. Appeals Court affirms. USSC hears argument with other cases and rules that his confession should be excluded from evidence. Violation of 5th Amendment Rights.

Question 6

Canterbury v. Spence (1972)

Answer 6

Patient paralyzed one one side after surgery for ruptured disk.

Prior Standard: Doctors only needed to disclose what they thought was necessary (Reasonable Professional Standard)

Post Standard: Prudent Patient / Materiality of Risk

Possible Issue: Doctors now give so much information that patients just skim and sign

Question 7

Zingermon v. Burch

Answer 7

Facts: Man found at side of road, delusional, bloody. Brought to mental health hospital, asked to sign voluntary admittance form, admitted for three days. Eventually transferred to state hospital after signing forms again – was diagnosed with paranoid schizophrenia. Was not engaging in treatment, eventually highly medicated. Stayed for five months. On release, brings his concerns to a human rights committee.

Claims: Sues under Civil Rights Act. Patients are asked to sign forms when highly medicated and not competent.

District Court: Agrees with defendant
Appellate Court: He was deprived of liberties for which defendants could be held financially liable
USSC: Affirms AC. Plaintiff should have been protected by safeguards but was not

Question 8

“The Patient Said He Would Rather Die”

Answer 8

Question: Does present disorientation invalidate earlier refusal?

Question 9

Substituted Judgement: Definition; Reason; Logistics

Answer 9

• Standard that privileges the prior statements - courts should try to prove for the individual’s values and goals
• Surrogates are not usually very good at guessing what the patient really wants
• Accepted Documents: directive to physicians, living will, agent under a durable medical power of attorney document

Question 10

Wenland v. Wenland

Answer 10

Facts: man in serious car accident. Not vegetive state but close. Wife and children think he would want to be removed from life support, his mother does not.

Court Established Evidence Standard: Clear and convincing. Narrow application of this standard - not for all decisions by conservators under section 2355, only regarding removal of life sustaining treatment. Effect on fundamental rights. “Our conclusion does not affect permanently unconscious patients, including those who are comatose or in a persistent vegetative state, persons who have left legally cognizable instructions for health care, persons who have designated agents or other surrogates for health care, or conservatee’s for whom conservators have made medical decisions other than those intended to bring about the death of a conscious conservatee.”

Substantive Standard: A decision in accordance with the conservatee’s wishes + best interest standard

“…Either that the conservatee wished to refuse life-sustaining treatment or that to withhold such treatment would have been in his best interest; lacking such evidence, the superior court correctly denied the conservator’s request for permission to withdraw artificial hydration and nutrition.”

Question 11

Conservator Duty

Answer 11

An obligation to follow through on what the person would have wanted - a decision that honors the best evidenced wishes of the individual.

Question 12

Informed Consent in Schizophrenia Patients

Answer 12

Issues: Illness can quickly spiral out of control. The quicker you react with treatment, the closer to baseline you will be able to return.

Anosognosia: Symptom (1% of U.S. population) that renders one unable to understand that they are living with a disease (not denial). 50% of those with schizophrenia.

Question: Should those with the symptom be found incompetent.

Question 13

Does the Patient’s Denial of Illness Warrant Incompetency?

Answer 13

In some courts it does, In some courts it does not.

Question 14

Positive Symptoms of Mental Illness

Answer 14

Add to personality or affect.

Question 15

Negative Symptoms of Mental Illness

Answer 15

Cause the individual to withdraw from social interaction (difficult to treat).

Question 16

Two Standards of Informed Consent in Medical Practice

Answer 16

1. Reasonable medical practitioner

2. Prudent patient

Question 17

What Happens When a Patient Contests a Medical Determination of His Capacity?

Answer 17

The issue goes to the judge.

Question 18

Two Standards of Surrogate Decision Making

Answer 18

1. Best Interest

2. Substituted Judgement

Question 19

Four Prominent Legal Competency Theories

Answer 19

o The Patient Can Make a Choice (ability to communicate alone is not enough)

o Understand but not Appreciate the Information

o Understand and Appreciate the Information

o Understand, Appreciate, make a Rational Decision (could be too open, too many interpretations, arbitrary?)

Question 20

Benefits to Allowing Competency

Answer 20

o Uncertainty of diagnosis

o Stigma of Mental Illness

o Implication for other denials of mental health diagnosis

o Lack of insight may not rise to the level of anosognosia

Question 21

Alternative Possible Standard for Incompetency Finding Other Than Blanket Denial of Illness

Answer 21

Gross denial of symptoms or plainly false beliefs and denial of objectively apparent symptoms of the illness

Question 22

Argument for Incompetency Finding in Those With Anosognosia

Answer 22

Without proper insight into their condition, individuals cannot be making a free choice. Allowing them not to medicate might mean they will be making a decision to never treat because insight will likely get worse.

Question 23

Argument for More Specific Statutory Language Re: Incompetency Findings in Those with Anosognosia

Answer 23

• Protects patients who have insight but don’t want treatment for their own reasons, means judges cannot impose their own beliefs about denial into their stator interpretation, ensures the statute reflects the best science available
• “Appreciation” is a critical term
• Specific Language: Ensures only patients suffering from anosognosia, as opposed to denial, are captured by the statute, and also reflects the goals of informed consent

Question 24

Youtsey v. United States (1899)

Answer 24

“it is fundamental that an insane person can neither plead to an arraignment, be subjected to a trial, or, after trial, receive judgment, or after judgment, undergo punishment; . . . It is not ‘due process of law’ to subject an insane person to trial upon an indictment involving liberty or life”

Question 25

Dusky v. United States (1959)

Answer 25

• Anxiety and panic disorder. Voluntary hospitalization where doctors found him to have suicidal ideation, thoughts of murder and “sexual indulgence,” fantasies of beating is ex-wife, feeling like he was somebody or something else .Attempts to rape a girl with two juveniles, but he is unable to. They release her and drive away. Charged with kidnapping.
• He demonstrated that he understood the severity of the charge, that he was familiar with the events. Says he didn’t remember parts of the day but agreed that he must have since there was evidence of people witnessing him.
• Counsel requested competency evaluations for standing trial and criminal responsibility

Question 26

Dusky v. United States (1959) Evaluations

Answer 26

• Report 1: Not competent to stand trial; might be in 60 days if treated; could not make a determination on criminal culpability. Dusky was suffering from delusions, hallucinations, and ideas of reference. Thus, the staff believed that Dusky’s condition had significantly worsened since his initial evaluation.
• Doctor: Unable to assist in his defense because he could not understand the meaning of the events that occurred. Could discuss particulars of crime but those statements would be filtered through mental illness.

Question 27

Dusky v. United States (1959) Court Opinions & Outcome

Answer 27

• Despite evaluations, district court found him competent because he was oriented to person, place, and time
• Jury did not accept insanity defense; sentenced to 45 years in prison
• USSC ordered new evaluation and new trial if he was found competent
• Showed more memory of events and able to consult with lawyer with a reasonable degree of rational understanding; found competent to stand trial. Sentenced to 20 years / eligible for parole after five years

Question 28

The Dusky Standard

1. Concerned With
2. Accused Must Have
3. Defines Two Broad Areas
4. Definition of Key Terms

Answer 28

1. When is due process satisfied in the matter of competency to stand trial?
2. (a) Sufficient present ability to consult with attorney with a reasonable degree of rational understanding; (b) A rational, as well as factual understanding of the proceedings taken against him.
3. Cognitive and Interpersonal
4. The phrase “rational, as well as factual” has been widely interpreted to mean that the accused must understand not only the specifics of the allegation but also the potential consequences of the trial (i.e., a sentence, possible imprisonment), the relative merits of basic legal strategies, etc.

Question 29

Expert Availability Under Dusky

Answer 29

Since indigent defendants may not have the means to procure their own mental health experts for competency evaluations, the court is obligated to make such experts available.

Question 30

Pate v. Robinson (1966) - A Trial Judge Must Order an Inquiry into Competency If -

Answer 30

A “bona fide doubt” exists as to the defendant’s competency.

Question 31

Drope v. Missouri (1975) - Who has the responsibility to request a competency evaluation?

Answer 31

Expanded to all parties, including the prosecution.

Question 32

What Happens When an Individual is Found Incompetent to Stand Trial?

Answer 32

They can be sent for treatment until they are competent. This used to be indefinite, but now must be a reasonable (not defined, but states usually say 1-5 years) and the treatment must specifically address what exactly is the reason they are found incompetent

Question 33

Estelle v. Smith (1981)

Answer 33

The Court found that failure of the prosecutor to notify the defense that Smith would be evaluated by an expert who could be called to testify against him violated Smith’s rights against self-incrimination and the right to effective counsel, as provided by the Fifth and Sixth Amendments, respectively.

It thus emphasized several points: (1) the unreliability of psychiatric testimony; (2) the need to inform a client that statements can be used against him or her to predict future dangerousness; and (3) the right to consult an attorney before submitting to such an examination and to have an attorney present during the examination in capital cases.

Question 34

Melinda v. California (1992) - Standard of Proof Re: Competency to Stand Trial

Answer 34

Preponderance of the evidence.

Question 35

Other Competencies

Answer 35

Prior to Trial: confessions prompted by mental illness can be used – so no competency standard prior to trial?

Habeas Corpus (investigation of unlawful detainment) Proceedings: “Thus, Gonzales’s petition for habeas corpus could not be carried out due to his inability to assist with counsel.”

To Be Executed: According to our society’s view of retribution, defendants should be able to understand why they are being prosecuted and why they are being punished, if found guilty. From this foundation flows the requirement that a defendant should be competent to be executed (Eisenberg, 2004). Cruel and unusual punishment when a severely mentally disturbed individuals are subjected to capital punishment.

Juror: must be found competent.

Witness: To be a competent witness under current law, one must have the ability to perform the duties and responsibilities involved in accurately relaying information to the court.

To Make a Will: The competency to make a will in known as testamentary competence. The law of testamentary capacity is straightforward, at least in its statement. The testator (person for whom the will is made) must be able to do the following: Understand the nature and extent of his or her property, Realize the persons who are the natural objects of his or her bounty (e.g., relatives and friends), Understand the distribution of the property contained in the will, Understand the nature of a will and be able to form an intent to make a disposition of property that will be carried out after death.

Question 36

Godinez v. Moran (1993) - The Constitutional Basis for Separate Competencies - Facts and Proceedings

Answer 36

Facts: Kills two patrons and sets saloon on fire with an accomplice. Later kills wife and attempts but fails suicide. Confesses to all killings, expresses remorse. Pleaded not guilty on three counts of first-degree murder, one arson, one robbery.

Evaluations: Two psychiatrists in terms of standing trial; said he was depressed but competent.

Proceedings: Death penalty sought. Waived right to counsel, asked to represent himself. Pleaded guilty to three counts of murder. Taking medication that may have influenced competency, but judge did not probe. Appeared confused, unsure about judge questioning. Ultimately found competent. Panel returned three death sentences. Filed petition for post-conviction relief saying he was incompetent to waive and proceed pro se. Multiple appeals denied.

9th Circuit US Court of Appeals: Eventually found that state court should have considered questioning Moran’s competency to discharge counsel and plead guilty when he changed his plea. The trial court’s failure to request another competency evaluation was a violation of his right to due process.

USSC reversed.

Question 37

Godinez v. Moran (1993) - Standard for Competency to Waive Counsel

Answer 37

9th Circuit Court of Appeals - Standard to stand trial is lower than standard to waive counsel and plead guilty. Reasoned Choice standard.

USSC - Standard is same; Preponderance of the Evidence. “Although the decision to plead guilty is a profound one, such a decision is not more complicated than the sum total of decisions that all criminal defendants . . . may be called upon to make during the course of trial.”

Justice Blackman Dissent: The majority cannot isolate the term “competent” and apply it in a vacuum, divorced from its specific context. The majority’s monolithic approach to competency is true to neither life nor the law. Competency for one purpose does not necessarily translate to competency for another purpose. I cannot condone the decision to accept, without further inquiry, the self-destructive “choice” of a person who was so deeply medicated and who might well have been severely mentally ill.

Question 38

Indiana v. Edwards (2008) - Contemporary Importance of Competency Guidelines

Answer 38

Facts: Stealing shoes; guard detained him in a hug. Edwards shot at sky and then at guard’s back; hit a pedestrian in the leg.

Proceedings: 3 days after the act, Edwards was charged with attempted murder, battery with a deadly weapon, criminal recklessness, and theft. The court-appointed attorney requested a psychiatric evaluation to determine Edwards’s competency to stand trial. Treatment for schizophrenia; found competent; later evaluations went back and forth. Judge denied pro se request; said Edwards did not know enough about the law. Guilty of criminal recklessness, hung jury of murder. Second trial pro se request again (he wanted on defense, attorney wanted another). Judge again said competent to stand trial but not pro se. Lost second trial with attorney’s defense. Convicted attempted murder - possible 30 year sentence.

Appeal: Argued he was denied 6th amendment right to represent self. Courts went back and forth about it.

USSC: Ruled against its own precedent - bar may be higher for self-representation than to stand trial.

Question 39

Distinction Between Competency to (a) Stand Trial and (b) Insanity

Answer 39

(a) Deals with the time of trial
(b) Deals with the time around the commission of the crime

[Defendant’s level of competency can be questioned at any point during trial]

Question 40

Primary Purpose & Necessary Findings Re: Criminal Competency Finding

Answer 40

• Safeguard the accuracy of adjudication.
• He should be able to communicate any defense, not be pressured into confessing, understand why he is being tried, and understand the consequences of punishment.

Question 41

Incompetency is a Status Not a ______________

Answer 41

Defense

Question 42

New York Court: Six Factors of Competency to Stand Trial

Answer 42

Whether the Defendant:

(1) is oriented as to time and place;
(2) is able to perceive, recall, and relate;
(3) has an understanding of the process of the trial and the roles of judge, jury, prosecutor, and defense attorney;
(4) can establish a working relationship with his attorney;
(5) has sufficient intelligence and judgment to listen to the advice of counsel and, based on that advice, appreciate (without necessarily adopting) the fact that one course of conduct may be more beneficial to him than another; and
(6) is sufficiently stable to enable him to withstand the stresses of the trial without suffering a serious prolonged or permanent breakdown

Question 43

Sells v. United States - Synthetic / Artificial Competency

Answer 43

Question: Can a defendant be medicated against his will in order to achieve competency to stand trial?

USSC Holding: The federal government may involuntarily administer antipsychotic drugs to render a mentally ill defendant competent to stand trial only if the treatment is medically appropriate, substantially unlikely to have side effects that may undermine the trial’s fairness, and necessary to significantly further important governmental trial-related interests. Stressed the need to engage in the lease restrictive alternative in every case.

Question 44

Jackson v. Indiana (1972)

Answer 44

Incompetency finding often equal to life sentence to maximum security psychiatric institution. Such automatic automatic lifelong commitments are unconstitutional. Violation of equal protection and due process rights.

Jackson ruling has not been a huge success. Many states have not fully embraced it

Question 45

Defendant Incompetency to Plead Guilty

Answer 45

A defendant is not competent to plead guilty if a mental [disability] has substantially impaired his ability to make a reasoned choice among the alternatives presented to him and to understand the consequences of his plea

Question 46

Faretta Finding

Answer 46

All criminal defendants, if competent to stand trial, enjoy the constitutional right to self-representation, though that right is not absolute.

Question 47

State v. Lane (2011)

Answer 47

Court Holding: A criminal defendant’s ability to represent himself has no bearing upon his competence to choose self-representation.

• Dusky Standard to stand trial; if he then seeks to proceed pro se - the trial court has two choices: (1) it may grant the motion to proceed pro se, allowing the defendant to exercise his constitutional right to self-representation, if and only if the trial court is satisfied that he has knowingly and voluntarily waived his corresponding right to assistance of counsel, pursuant to Moran; or (2) it may deny the motion, thereby denying the defendant’s constitutional right to self-representation because the defendant falls into the “gray area” and is therefore subject to the “competency limitation” described in Edwards.
• The trial court must make findings of fact to support its determination that the defendant is “unable to carry out the basic tasks needed to present his own defense without the help of counsel.
• Dr. did not think defendant’s decision to proceed pro se to be either “reasonable or rational,” but concluded that “if the test of competency to dismiss his attorneys and represent himself is understanding and appreciating the consequences of the decision, comprehending the nature of the charges and proceedings and range of permissible punishments, in my opinion he’s competent.”
• Defendant was able to respond to the trial court’s inquiries in a manner that indicated that he (1) understood the charges and proceedings against him and the range of possible punishments, (2) had been clearly advised of his right to counsel, and (3) appreciated the consequences of his decision to waive that right.

Question 48

United States v. Batista

Answer 48

Question: Is feigning mental illness an appropriate basis for an obstruction of justice enhancement?

Defendant: Argues he was just “exploring a defense.”

Court Holding: Yes, it is.

Question 49

Purpose of Therapeutic Jurisprudence

Answer 49

Protecting the interests of individuals whose cognitive abilities we might question