PART 3 / CH 36
Capacity Evaluations
Renee Snow
A. Definitions
1. Capacity: the ability to accept or refuse treatment recommendations; determined by a clinician based upon specific elements of a mental status evaluation
2. Competence: a legal concept formally determined in a court of law
(judges often rely on clinician’s recommendations)
Remember: The law presumes competence until proven otherwise
B. Indications
· refusing treatment
· consent for a procedure
· seeking to sign out against medical advice (AMA)
C. Procedure
· Ensure that the patient has been appropriately informed about the treatment options, including the risks and benefits of all the choices including the choice of no treatment. Language must be appropriate for a patient’s level of education and intelligence. Observing the explanation provided by the treating MD may be helpful in ensuring that this occurs.
Generally four legal criteria are applied to assess capacity:
| Ask: | Assess: |
|---|---|
| Can the patient make a choice in a reliable way that is reasonably stable over time? | Does the patient express a choice? If a patient cannot express a choice, presume incompetence. Delirium, dementia, depression, memory impairment, psychosis or severe ambivalence can prevent a patient from communicating a clear choice or result in decisions that fluctuate so frequently that they cannot be implemented effectively. |
| Does the patient understand the relevant information? | Can the patient adequately summarize the treatment options, understand their role as decision-maker and demonstrate an awareness of cause and effect? |
| Can the patient appreciate the current situation and its consequences? | Are they aware of their diagnosis, prognosis, and the possible outcomes? Can the patient conduct a reasonable, meaningful discussion of the risks and benefits of each treatment option? |
| Can the patient manipulate the information rationally? | Does the patient have a reasonable reason for their choice? Remember, what a treatment team may consider a “bad” decision is not necessarily unreasonable based on a patient’s personal, religious, cultural or other beliefs |
D. Standards
Level of competency required is based on comparing the risks/benefits of treatment and patient choice; standard for competency increases if decision does not match the presumed risk/benefit ratio.
E. Recommendations
1. If a patient is determined not to have the capacity to make medical decisions:
· Proceed with treatment for emergencies, low risk/high yield procedures
· Obtain consent from family
· Invoke health care proxy if available
· If no proxy, recommend the family pursue guardianship (Section 7/8, Roger’s). Note: even under guardianship, certain options including the use of antipsychotics, ECT, or surgery are considered extraordinary or intrusive and require substituted judgement from a court.
2. Evaluate need for further medical evaluation (e.g., workup of delirium) and make recommendations to the team
F. Documentation
“Based upon my evaluation of this patient, he/she is aware/unaware of the current medical situation, does/not have a factual understanding of the current situation as evidenced by (give example), is able/unable to rationally manipulate information to make a decision as evidenced by (give example) and does/not express a choice. Therefore, this patient has/lacks the capacity to make medical decisions”.
If capacity is present note: “We should respect the patient’s right to make this decision.”
if lacking: “A health care proxy should be invoked and all medical decisions be deferred to him, or if no proxy exists, the family should pursue guardianship”.
Source: Applebaum, PS and Grisso T (1988) NEJM 319(25):1635-38.