When he was thirty-one years old, Kenneth Bergstedt filed his petition requesting confirmation of his "right to die."(2) Kenneth had been afflicted with quadriplegia as a result of a swimming accident twenty-one years earlier, and for his entire post-accident life he had been dependent on respirator support and the personal care of his father. Although Kenneth was not likely to die from his condition in the near future, his condition was irreversible and not likely to improve. Faced with the imminent death of his terminally ill father, Kenneth sought court assurance that he could have his respirator removed "by one who could also administer a sedative and thereby relieve the pain" that might otherwise precede his death. Kenneth also sought assurance that his actions would not be deemed suicide.(3) As a part of the petitioning process, Kenneth had been examined by a psychiatrist, who found that Kenneth was "competent and able to understand the nature and consequences of his decision."(4)
Ultimately, Nevada's Supreme Court affirmed the district court's decision granting Kenneth's petition.(5) The supreme court ruled that competent adults irreversibly sustained by artificial life support and enduring physical and mental pain and suffering had the right to terminate treatment. Under such circumstances, the patient's right to refuse or terminate life-sustaining treatment would override competing state interests in preserving life;(6) and the exercise of the right would not be suicide.(7)
A court decision recognizing a competent patient's right to terminate treatment from a life-sustaining respirator is not new or surprising.(8) Beginning with the Quinlan(9) decision in 1976, courts have accepted the principle that a patient retains the right to refuse treatment, even when halting that treatment would result in the patient's death. Equally unsurprising is a ruling that favors patient treatment choices over state interests in preserving life and preventing suicide.
What is surprising about Bergstedt and similar decisions is the court's abandonment of antisuicide policies by finding that the decisions and acts of patients in Kenneth's position would not constitute suicide. It is true that earlier court opinions have held that deaths resulting from the refusal of life-sustaining treatments were not suicides.(10) Those earlier opinions, however, approved treatment refusal or removal when the patient's condition was terminal,(11) when the patient was in a persistent vegetative state,(12) or when the patient suffered such physical discomfort that prevention of suffering justified removal of the treatment.(13) In Bergstedt, the court recognized that Kenneth's suffering was predominately emotional, not physical.(14) Focusing solely on cognitive aspects of competency, the court then ruled that Kenneth's conduct was not suicide.(15) The Nevada Supreme Court's "no suicide" finding relieved it from addressing the tension inherent between the patient's right to determine treatment and the state's antisuicide policy, particularly when the patient's medical condition did not come within recognized exceptions to the antisuicide policy.
The court's decision unnecessarily and unwisely ignored noncognitive elements of decisionmaking. In its analysis, merely understanding the nature and immediate consequences of the decision constituted competency. No inquiry into the patient's psychological condition and motivation was required. This article recommends that a competency determination should evaluate both cognitive and noncognitive motives of patients who refuse life-sustaining treatment. Specifically, this article argues that states have an antisuicide interest in preventing suicides caused by mental illnesses. Protection of that antisuicide interest also requires evaluation of the patient's psychological state and motives as a part of the competency determination for patients who refuse life-sustaining treatments.
As did earlier courts, the Nevada Supreme Court recognized that a person of adult years and in sound mind has the right, in the exercise of control over his or her own body, to determine whether or not to submit to lawful medical treatment.(16) The patient's right to decide treatment undergirds the legal and ethical requirements that treating personnel obtain an informed consent before beginning treatment.(17) This obligation to obtain consent, however, includes two major exceptions: emergencies and incompetency. Consent is unnecessary in emergencies.(18) Treatment choices by incompetent patients are not legally binding.(19)
Patient competence is evaluated in one of two very different factual contexts. In the first, the patient is no longer able to communicate effectively with treating personnel but has written an advance directive(20) or has instructed friends or family orally about treatment choices with enough specificity to satisfy treatment personnel or the courts.(21) The patient's prior instructions continue to control medical decisionmaking as if the patient were still competent. Competence determinations can focus only on the patient's understanding of the situation as disclosed by the instructions; the patient's current or past ability to process information cannot be evaluated in any meaningful way.
In the second context, the patient is still conscious or periodically conscious. (S)he may be lucid at all times or may pass from clear thinking and communication to delirium and garbled speech or to no speech. (S)he continues (or resumes) communicating with treating personnel but refuses or wavers in a decision to accept treatment. (S)he may harbor delusional ideas or suffer from a mental disorder, diagnosed or not. Information is available both on the patient's ability to comprehend information important to the decision and on the process by which the patient reaches the decision. Although both contexts will be addressed in this article, the main focus will be on patients in the second context.
The goal of competency analysis is to ascertain authentic patient decisions.(22) This assures medical personnel that the patient's stated choices reflect the patient's true choices. From the patient's perspective, however, the fact that a patient choice is subjected to anyone's evaluation carries the risk that the patient's individual values will be overridden whenever the treatment team or family believes the patient's choice is irrational,(23) unreasonable, or wrong.(24) Any competence test should be evaluated for its aid in protecting authentic individual choices from veto and preventing unauthentic choices from being implemented.
Current Competency Standards
Legislative Competency Definitions
General Competence. Statutes explicitly recognize a patient's right to decline potentially life-sustaining medical care by executing advance written directives. Although all advance directives are commonly referred to as "living wills," the enabling statutes divide into three different groups. Each group of statutes establishes global competency elements. The original living will statutes comprise one group. Those wills allow patients, already diagnosed as terminally ill, to provide written advice to their physicians about the patients' medical choices.(25) Living will statutes define competency categorically; individual competence is assumed. Only terminally ill patients may execute living wills. An otherwise rational adult is incompetent to execute a living will unless and until his/her medical condition deteriorates to the terminal stage. Preexecution waiting periods and limited enforceability also restrain a competent patient's choices. These barriers to the benefits of living wills prevent most patients from using living wills to control medical choices at the end of life.
The Uniform Rights of the Terminally Ill Act(26) and related statutes comprise the second group. Under the Uniform Act itself, competent adults control the administration of life-sustaining treatment by executing a declaration that contains instructions to the physician to withhold, withdraw, or continue life-sustaining treatment.(27) By definition, declarations are enforceable only for those suffering from an incurable or irreversible condition who are expected to die within a relatively short time.(28) The declaration differs from a living will in that it may be executed at any time but only becomes effective upon the incompetence of the terminally ill patient.(29)
The Uniform Act has been adopted in only twelve states.(30) Its general structure, however, serves as the basis for related natural death acts in thirty-two other jurisdictions.(31) In each jurisdiction competence is categorically determined. Although every natural death act requires that the patient experience a terminal condition before the declaration becomes effective, definitions of terminal condition vary. Typically, states define terminal condition as either a condition in which death will occur within a reasonable short time,(32) or a condition in which death will occur within a reasonably short time or the patient lies in a persistent vegetative state or coma.(33) As with living wills, competence is narrowed by excluding some people from the benefits of the act. For example, women of childbearing age may be presumptively excluded,(34) may be excluded during any pregnancy,(35) or may be excluded when a live birth is reasonably possible.(36) States also narrow categorical competency by excluding certain procedures from the definition of life-sustaining(37) treatment so that such treatments may not be refused by even terminally ill patients.(38)
Natural death acts based on the Uniform Act provide little guidance in determining individual patient competence.(39) The Uniform Act and most state statutes merely require that the patient/declarant be "of sound mind" at the time of executing the declaration.(40) Witnesses only attest that the declarant signed...