Decision-making Capacity and Legal Competence

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 Autonomy Respect for the patient’s right to self-rule. Medical Ethics: Basic Principles
  • A task-specific functional assessment of an individual by a physician
  • Decision-specific: a patient may have capacity for one decision and lack it for another
  • Dependent on adequate disclosure of information Disclosure of information Disclosure of information is the process through which physicians explain clinical information to their patient (or surrogate decision-maker) in a way that the patient or surrogate can understand. This process is crucial for patients to understand their clinical situation and make informed decisions about their care. 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 consent Informed consent is a medicolegal term describing the documented conversation between a patient and their physician wherein the physician discloses all relevant and necessary information to a patient who is competent to make an informed and voluntary decision regarding their care. Competency, disclosure, and voluntariness are the key elements upon which IC is based. 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

Assessment of Capacity

The clinician Clinician A physician, nurse practitioner, physician assistant, or another health professional who is directly involved in patient care and has a professional relationship with patients. Clinician–Patient Relationship 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 Clinician A physician, nurse practitioner, physician assistant, or another health professional who is directly involved in patient care and has a professional relationship with patients. Clinician–Patient Relationship 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 ( screening Screening Preoperative Care instruments that support, but cannot by themselves establish or exclude, decision-making capacity):
  • Mini-Mental State Examination Mini-Mental State Examination Major Neurocognitive Disorders
  • Montreal Cognitive Assessment Montreal Cognitive Assessment Major Neurocognitive Disorders

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 Clinician A physician, nurse practitioner, physician assistant, or another health professional who is directly involved in patient care and has a professional relationship with patients. Clinician–Patient Relationship 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 Hyperactivity Attention Deficit Hyperactivity Disorder, disruptive behavior, or agitation Agitation A feeling of restlessness associated with increased motor activity. This may occur as a manifestation of nervous system drug toxicity or other conditions. St. Louis Encephalitis Virus
  • Labile emotions or affect
  • Hallucinations Hallucinations Subjectively experienced sensations in the absence of an appropriate stimulus, but which are regarded by the individual as real. They may be of organic origin or associated with mental disorders. Schizophrenia
  • Intoxication 
• Diagnoses (e.g., Alzheimer’s disease) are not substitutions for capacity evaluations.

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. 
• Reversible contributors (e.g., delirium Delirium Delirium is a medical condition characterized by acute disturbances in attention and awareness. Symptoms may fluctuate during the course of a day and involve memory deficits and disorientation. Delirium, pain Pain An unpleasant sensation induced by noxious stimuli which are detected by nerve endings of nociceptive neurons. Pain: Types and Pathways, infection, metabolic derangement, sedating medications) should be identified and treated, and capacity should be reassessed afterward.
• If capacity remains uncertain after evaluation with these tools, the next steps include:
  • Assessment by a specialized clinician Clinician A physician, nurse practitioner, physician assistant, or another health professional who is directly involved in patient care and has a professional relationship with patients. Clinician–Patient Relationship (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 Autonomy Respect for the patient’s right to self-rule. Medical Ethics: Basic Principles (prevention of unintended or irreparable harm)
• Patients Patients Individuals participating in the health care system for the purpose of receiving therapeutic, diagnostic, or preventive procedures. Clinician–Patient Relationship will require surrogate decision makers:
  • A previously executed advance directive (e.g., living will Living will Written, witnessed declarations in which persons request that if they become disabled beyond reasonable expectation of recovery, they be allowed to die rather than be kept alive by extraordinary means. Advance Directives) governs to the extent it addresses the situation at hand Hand The hand constitutes the distal part of the upper limb and provides the fine, precise movements needed in activities of daily living. It consists of 5 metacarpal bones and 14 phalanges, as well as numerous muscles innervated by the median and ulnar nerves. Hand: Anatomy.
  • Healthcare power of attorney (healthcare proxy/agent) designated by the patient
  • Closest relative (determined by local laws, typically next of kin)
  • Court-appointed health guardians may also be considered in certain jurisdictions.
• Surrogates should decide using substituted judgment Judgment The process of discovering or asserting an objective or intrinsic relation between two objects or concepts; a faculty or power that enables a person to make judgments; the process of bringing to light and asserting the implicit meaning of a concept; a critical evaluation of a person or situation. Psychiatric Assessment (what the patient would have chosen); the best-interest standard applies only when the patient’s preferences are unknown.
• If a patient without capacity continues to refuse treatment, court proceedings may be required to give treatment despite objection (in non-urgent cases only).
• In emergencies, treatment necessary to prevent death or serious harm may be given under the emergency exception (presumed consent).

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 Quality Activities and programs intended to assure or improve the quality of care in either a defined medical setting or a program. The concept includes the assessment or evaluation of the quality of care; identification of problems or shortcomings in the delivery of care; designing activities to overcome these deficiencies; and follow-up monitoring to ensure effectiveness of corrective steps. Quality Measurement and Improvement that is presumed in every individual who has reached the age of majority.
• 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.)
• Judicial determinations are increasingly domain-specific (e.g., limited guardianship), with the least restrictive alternative preferred over global removal of decision-making rights.
• Competence is often used interchangeably with “capacity,” but capacity should only refer to the expression of autonomy Autonomy Respect for the patient’s right to self-rule. Medical Ethics: Basic Principles 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