Assessment of Capacity and Other Legal Issues

Capacity criteria

To have capacity, a patient must be able to demonstrate the following four skills:

• 1.

  Communicate a choice: The patient must be able to convey a preference with respect to his or her care. This concept requires that the patient is able to maintain choices long enough for them to be implemented; a patient who frequently reverses his or her decision may lack this skill. Memory impairments, thought disorders, and extreme ambivalence may underlie a patient’s inability to communicate a stable choice.

• 2.

  Understand relevant information: The patient must be able to receive and retain the information that is provided. He or she should be able to describe the details of the treatment, its risks and benefits, possible alternatives, and why it is necessary or recommended. The patient should also understand that he or she is the one responsible for making the decision. Commonly, a consultant may find that the patient does not understand the proposed intervention because he or she has not been adequately educated by the primary team on the choice at hand. However, if the team has indeed informed the patient of risks and benefits, cognitive impairments, such as in memory, attention, or intelligence, may prevent a patient from demonstrating this ability.

• 3.

  Appreciate the situation and its consequences: Appreciation of the situation implies that the patient can assess, according to his or her own values, the impact of his or her current condition. It differs from the previous skill in that the patient should understand how the current situation will influence not only acute outcomes, but also his or her future quality of life, with or without treatment. Collateral information, when available, should be used to assess whether the patient’s current decision is consistent with his or her previous cultural, social, and/or religious beliefs. Distortions in thinking that can be found in illnesses, such as depression or psychotic disorders, for example, may impair a patient’s appreciation of a given situation and its consequences.

• 4.

  Manipulate information rationally: The patient must be able to use logical thought processes to compare the risks and benefits of various treatment options and reach a decision. After assessing this skill, the clinician should be able to understand why the patient chose one option over another. Underlying psychiatric illnesses, such as psychosis or depression, and transient states, such as panic or anger, may limit a patient’s ability to think through a situation logically.

The strictness with which the criteria for decisional capacity are interpreted often depends on the risk that the patient assumes with his or her decision; the higher the risk, the more stringently the criteria are applied. This is also known as the sliding scale approach. For example, the risks of refusing vital signs are generally lower than the risks of refusing amputation of a gangrenous limb, so the capacity standard will be lower in the former case.

It is important to remember that a competent patient has the right to self-determination and to make a decision with which his or her physicians or family members disagree. In 1914, in Schloendorff v. New York Hospital, Justice Cardozo wrote, “every human being of adult years and sound mind has a right to determine what shall be done with his or her body.”

Informed consent

A concept related to decisional capacity is informed consent. Derived from the ethical principle of autonomy, it is the process by which a patient agrees to or refuses a medical intervention. To give informed consent, a patient must first have capacity to make the decision. The patient must also consent to the procedure knowingly and voluntarily. To agree to treatment knowingly, a patient must be provided with all of the relevant information regarding his or her condition, including the diagnosis, risks, and benefits of the recommended treatment options, alternative treatment options (or no treatment), and the prognosis. To agree voluntarily to treatment, a patient must not be coerced into treatment. Coercion can be subtle, for example, by neglecting to disclose or realistically state the risks and benefits of various treatment options.

There are four exceptions to the requirement of informed consent in a treatment setting:

• 1.

  Incapacity (alternate decision maker required): As discussed, if a patient lacks capacity, he or she cannot consent to an intervention; surrogate decision makers are discussed later in this chapter.

• 2.

  Medical emergency (no consent required): However, even in this context, if the treatment team has prior information that the patient would refuse a life-saving intervention, the treatment team may not act against the patient’s previously voiced wishes (e.g., in the care of a Jehovah’s Witness who previously expressed that he or she would refuse a blood transfusion).

• 3.

  Patient waiver (patient waives right to informed consent): In this case, the patient must have previously made his or her desire to avoid hearing about risks and benefits of treatment interventions known. Decisions are deferred to the judgment of the physician or another party.

• 4.

  Therapeutic privilege (when revealing information to the patient would clearly harm that patient): Under this exception, a physician would have to determine that the process of informed consent would be preventatively deleterious to the patient. Laws regarding this exception vary between jurisdictions.

Capacity consults: treatment refusal and acceptance

Treatment refusal is a common reason for a team to request a capacity consult, but it is NOT the job of the physician on call to obtain consent from the patient or to convince the patient to consent to treatment. Rather, the consultant must assess whether the patient has the capacity to make a decision and thus to provide informed consent or refusal.

Rarely, the situation may arise in which treatment acceptance results in a capacity consult. In this case, the treating physician has concerns that the patient has consented to a treatment but may not have the capacity to do so. For example, a team may request a consult to evaluate a patient for somatization disorder prior to an exploratory surgery meant to investigate symptoms that remain unexplained. The same criteria for assessing capacity apply. In the situation of questionable capacity to consent, the patient may be overestimating the benefit-to-risk ratio of the intervention, whereas a patient refusing treatment may be underestimating the benefit-to-risk ratio of the recommended intervention.