Legal Issues for ASD / Informed Consent; Competency


Is the person “treating you” actually an MD? If not, find out “who they are” – and what they are qualified to do by the laws of your state.

I’m extracting information from an article (which relates to sexual abuse, but covers much that is important for any person) that is especially important for those “labeled” as mentally ill, disabled, or developmentally “disordered” – information that is usually NOT EXPLAINED very well, if at all, to the general public; confusion reigns! This is medical info: it applies to psychiatrists, who are MDs.

Each person needs to be familiar with the laws current in your state. Remember: medications are “treatment” – it’s your right to be fully informed about prescription psychotropic drugs.

Full paper: Prim Care Companion J Clin Psychiatry. 2001; 3(3): 126–135. Jamie P. Morano, B.A.


Probably NOT.

Medical consent is understood in the context of the classic doctrine of “informed consent.” Such informed consent is a constant companion to the primary care physician and takes a central role in situations ranging from routine physician-patient encounters to complicated surgeries. The informed aspect includes understanding information as to the nature of the procedure, the risks and benefits of the procedure, and alternative courses of action. The consent aspect includes the voluntary and autonomous nature of the patient’s decision.27 

Informed consent has 5 main components of understanding: the nature, purpose, risks, and benefits of a procedure and the alternatives to a procedure. There are 4 recognized exceptions to the doctrine of informed consent: case of emergency (used in emergency room settings), patient waiver, therapeutic privilege (unconscious or incapacitated patient), and inadequate competency (minors unless emancipated by marriage but not pregnancy). States vary for ages of consent to birth control and abortion.4

In routine encounters there exists a certain loose standard, called a “transparency” standard of consent, in daily medical practice.28 With complicated procedures or complicated mentally retarded patients, such consent still is valid to obtain but presents a greater challenge to procure.

As Coulehan and Block27 emphasize repeatedly, informed consent is a process of informational internalization and not just a scribbled patient signature on a piece of paper. Even in the court of law, such a signed document may serve as evidence of informed medical consent, but still can be inadequate by itself to prove full consent.27


Know what you are signing and the consequences of signing a document. ASK QUESTIONS.

Medical consent is primarily an issue of communication of the risks, benefits, and alternatives of a proposed medical treatment. (Medications!) Such consent is contextual in that the setting of questions and answers is most pertinent to the quality of the patient’s understanding and agreement. As Coulehan and Block describe, “The important issue here is that consent must be obtained in the context of a conversation during which clear explanations are given and questions are answered, and the patient’s competence and understanding are assessed.”27(p271)

Medicine can claim the doctrine of informed consent as its own. By contrast, the concept of competency belongs to the legal realm. Competency is the individual’s ability to make rational, informed decisions concerning oneself or one’s property.21 There is no “medical competency” per se, only the legal competence to make medical decisions. A competent individual is able to give informed consent.18 Courts often rely on a physician’s medical evaluation to determine the mental capacity to make legally competent decisions regarding medical care or sexual encounters, but “medical competency” is never established as an existing entity. For example, a patient in a state of coma, unconsciousness, or severe dementia is generally deemed to be incompetent to make medical decisions. A mentally retarded individual, however, may demonstrate adequate processing skills to be able to make rational decisions regarding sexual activity and thus qualify as competent for such an activity. Thus, it must be emphasized that competence is a legal concept and is not a medical concept.27 As Michael G. Farnsworth, M.D., a practicing psychiatrist, notes, “A medical opinion of incompetency, regardless of the source, remains only an opinion until a judicial ruling on the evidence is given.”21(p182)

The 1982 Presidential Commission on Ethical Decisions in Medical and Health Care proposed 3 core elements of competency: a possession of a set of values and goals, the ability to communicate and understand information, and the ability to reason and deliberate.1 Thus, it is the individual’s process of decision making, rather than the choosing of a specific outcome, that determines competency.27

Competency is decided subjectively on a case-by-case basis; that is, there is no absolute IQ designation for an individual to be positively assessed for competency to consensual sexual activity. Also, competency is not absolute for all actions; for example, an individual may be assessed as competent for daily living tasks but deemed incompetent for consensual sex.

In helping to determine legal competency, a physician or psychologist generally asks a series of questions or utilizes one of several competency assessment tests to probe the individual’s various neurologic, psychological, intellectual, and physical capacities to make an informed decision. To date, no one test has emerged as providing superior criteria with which to determine the competency of a mentally retarded individual for sexual activity. (2001 date of this paper) Because a standard assessment test is neither devised nor universally accepted, the question of decisional competency is currently resolved by analyzing the various components of mental competency.

By nature of the ongoing relationship with the patient, the primary care physician is arguably better positioned than the psychiatrist or psychologist specialist to assess mental competency of the mentally retarded individual. Farnsworth, in a 1989 article,21 set up a valuable algorithm for use in the primary care setting. The primary care physician is able to assess competency by assessing the 3 main aspects as follows: awareness of the nature of the situation, an understanding of the issue at hand, and the ability to use information rationally to arrive at a decision.21 If, during the conversation, the physician deems the patient capable of all 3 categories, then the opinion of competency can be confidently proclaimed. If there are serious deficits in understanding these 3 main criteria, then the primary physician is fully qualified to prepare the proper documents for the court, including relevant descriptions of the patient and opinions from family members, occupational therapists, psychologists, and other observers.21

Ideas forming the concepts of informed consent and competency are also pertinent to the legal arena, as will be shown in the following legal analysis of the ramifications of sexual abuse among mentally retarded individuals.


Laws protecting the mentally retarded individual across the nation are consistently characterized by both medical and legal scholars alike as vague, inconsistent, and inadequate in their protection of vulnerable individuals from sexual abuse. Yet, there are 6 main legal “tests” currently implemented by courts across the nation to assess legal consent to sexual activity; these tests at least provide a common ground for analysis.

The following few paragraphs will discuss current laws on sexual abuse and will define the legal terminology employed by such statues and codes. Finally, medicine’s role in the courtroom will be elucidated with recommendations to the primary care physician on how to play an advocate’s role in the clinical setting.

more: use link at top


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