Decision-making Capacity and Legal Competence

Decision-making capacity and legal competence are terms often used interchangeably in a hospital setting to describe an individual’s ability to make consequential decisions regarding themselves, as a manifestation of their autonomy. More specifically, however, capacity describes a patient’s ability to make autonomous decisions regarding their care, as determined by a physician, whereas competence is a legal term that describes a person’s ability to participate in legal processes, as determined by a judge.

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Decision-making Capacity

Definition

Decision-making capacity is a patient’s ability to understand a proposed intervention, its benefits, risks, and alternatives, including the option of no treatment, and make autonomous decisions regarding their care. 

  • Decision-making capacity:
    • The manifestation of a person’s ability to exercise their autonomy
    • A task-specific functional assessment of an individual by a physician
    • Dependent on adequate disclosure of information
    • Not static: can change within an individual based on the presence or absence of reversible factors (e.g., medication side effects)
  • Decision-making capacity is expressed as:
    • The ability to provide informed consent
    • Informed refusal of treatment
  • Underlying principle: “respect for persons,” or the acknowledgment of a patient’s “personhood”
  • The precise definition may vary between states and countries.

Components of medical decision-making capacity

There are 4 primary components of medical capacity:

  1. Understanding
  2. Communication/expression of choice
  3. Appreciation
  4. Reasoning
Table: Determinant elements of medical decision-making capacity
ComponentDeterminant elements
Understanding
  • Demonstrable understanding of the benefits, risks, and alternatives to an intervention
  • Includes the possibility of rejecting treatment altogether
Communication/expression of choice
  • Ability to communicate a choice clearly and consistently
  • Must be rooted in reality
Appreciation
  • Understanding that their decisions will have consequences
  • Ability to apply the information to one’s self and situation
  • Appreciation of the potential benefits and consequences of being exposed to risks
  • Capable of making a risk/benefit calculation: risks and benefits of action versus inaction
Reasoning
  • Logically and rationally manipulate and compare information
  • Normal thought processes
  • Able to articulate their reasoning
  • Ability to align available treatment options with their life experience, circumstances (e.g., socioeconomic status), and guiding principles and philosophies (e.g., religion)
Components of medical capacity

Components of medical decision-making capacity

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Assessment of Capacity

The clinician assesses the 4 elements intuitively through everyday interactions with the patient (e.g., during daily rounds).

Steps for systematic evaluation

The steps below usually take the form of a fluid conversation that doesn’t necessarily follow a strict order. Throughout the conversation, the clinician should be able to determine if the patient fulfills the 4 elements. 

  1. Provide a summary of the patient’s condition. Ask for feedback to gauge the understanding of the patient. Use questions such as, “What is your understanding of your condition?”
  2. Provide a summary of the available treatment options with their risks and benefits along with the outcomes if no treatment is performed. Ask the patient for feedback using questions such as:
    • What are the treatment options available? 
    • What are the benefits and risks of each option? 
    • What do you understand will happen if nothing is done?
  3. Provide a recommendation regarding treatment or how best to proceed. Ask for feedback using questions such as:
    • Do you believe this course is right for you? 
    • Is there any aspect of the course that scares or troubles you?

Assessment tools

  • Capacity evaluation tools:
    • Aid to Capacity Evaluation (ACE)
    • Hopkins Competency Assessment Test (HCAT)
    • Understanding Treatment Disclosure
    • MacArthur Competence Assessment Tool for Treatment
    • Assessment of Capacity for Everyday Decisions (ACED)
  • Cognitive evaluation tools:
    • Mini-Mental State Examination
    • Montreal Cognitive Assessment

Impaired capacity

  • Impaired capacity is the lack of decision-making capacity.
  • Any illness or treatment that compromises cognition may be associated with reduced capacity.
  • The clinician may suspect impaired capacity with the following:
    • Inability to express a decision
    • Immediate acceptance/refusal of care
    • Absence of questions about the course of action
    • Excessive/inconsistent reasons for refusing care
    • Newly developed dependency
    • Hyperactivity, disruptive behavior, or agitation
    • Labile emotions or effect
    • Hallucinations
    • Intoxication 
  • Diagnoses (e.g., Alzheimer’s disease) are not substitutions for capacity evaluations.
Table: Risk factors for impaired decision-making capacity
Fear or discomfortExpression of fear or discomfort in a clinical setting
Age
  • Minors (< 18 years of age): Some countries allow for “partial consent” from the age of 14 years.
  • Elderly (> 85 years of age)
Neurologic, psychiatric, or developmental conditions
  • Impaired cognition, use of language, and orientation to person, time, and space, especially in individuals with:
    • Dementia (e.g., Alzheimer’s disease)
    • Psychosis (e.g., schizophrenia)
  • Inability to have a logical conversation, sound argument, etc.
  • Developmental delay/mental retardation preventing a patient from understanding the intervention in the simplest of layperson’s terms
Significant cultural or language barriersInability to understand the clinical team due to lack of language competency

Determination of capacity

  • The final decision lies with the treating physician.
  • All assessments of capacity (e.g., conversations and results using evaluation tools) must be documented in the clinical record. 
  • If capacity remains uncertain after evaluation with these tools, the next steps include:
    • Assessment by a specialized clinician (e.g., psychiatrist)
    • In complex or controversial cases, the medical team can seek judicial review to determine competency.
    • When in doubt, the determination should typically err on the side of the patient having capacity.

Results determining that a patient has impaired capacity

  • Restriction of the patient’s autonomy (prevention of unintended or irreparable harm)
  • Patients will require surrogate decision makers:
    • Legal power of attorney awarded by the patient
    • Closest relative (determined by local laws, typically next of kin)
    • Court-appointed health guardians may also be considered in certain jurisdictions.
  • If a patient without capacity continues to refuse treatment, court proceedings may be required to give treatment despite objection (in non-urgent cases only).

Legal Competence

Definition

Competency, or competence, is a legal term defined as the ability of an individual to participate in legal proceedings, which includes their ability to make medical decisions. Determinations of competence are made by a judge and not by a physician.

  • The determination of competence is a legally binding determination that establishes whether or not a patient is allowed to make their own medical decisions.
  • Competence refers to many areas of a person’s life, including their competency to:
    • Make medical decisions
    • Stand trial
    • Be a parent
    • Make a will
    • Sign a contract
  • Legal competence is a quality that is presumed in every individual.
  • Demonstrating a lack of competence requires the presentation of evidence before a judge, who makes the final determination. (Forensic psychiatrists and/or other clinicians may be called upon for testimony.)
  • Competence is often used interchangeably with “capacity,” but capacity should only refer to the expression of autonomy that can be determined by a physician on a case-by-case basis. 

Components of competence

The components of competence as determined by a judge are listed below. Note the similarity to the 4 components of medical decision-making capacity. 

  • Ability to understand and process relevant information 
  • Ability to communicate a choice
  • Ability to reason and deliberate
  • Ability to hold appropriate values and goals
  • Appreciation of one’s circumstances and the possible consequences

References

  1. Karlawish, J. (2020). Assessment of decision-making capacity in adults. In Wilterdink, J.L., and Solomon, D. (Eds.), UpToDate. Retrieved June 9, 2021, from https://www.uptodate.com/contents/assessment-of-decision-making-capacity-in-adults
  2. Barstow, C., Shahan, B., Roberts, M. (2018). Evaluating medical decision-making capacity in practice. American Family Physician, 98(1), 40–46.
  3. Brendel, R.W., Wei, M.H., Schouten, R., Edersheim, J.G. (2010). An approach to selected legal issues: Confidentiality, mandatory reporting, abuse and neglect, informed consent, capacity decisions, boundary issues, and malpractice claims. The Medical Clinics of North America, 94(6), 1229–1240. https://doi.org/10.1016/j.mcna.2010.08.003 
  4. Have, H., Gordijn, B. (2013). Handbook of global bioethics. Dordrecht: SpringerReference. 
  5. Palmer, B.W., Harmell, A.L. (2016). Assessment of healthcare decision-making capacity. Archives of Clinical Neuropsychology: The Official Journal of the National Academy of Neuropsychologists, 31(6), 530–540. https://doi.org/10.1093/arclin/acw051
  6. Libby, C., Wojahn, A., Nicolini, J.R., Gillette, G. (2021). Competency and capacity. StatPearls. Treasure Island (FL): StatPearls Publishing. Retrieved from http://www.ncbi.nlm.nih.gov/books/NBK532862/
  7. Buchanan, A. (2004). Mental capacity, legal competence and consent to treatment. Journal of the Royal Society of Medicine, 97(9), 415–420. https://doi.org/10.1258/jrsm.97.9.415 

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