1. Decisional capacity and competence: Is there a difference?

"Decisional capacity" and "competence" are often used interchangeably, but in most jurisdictions there is a difference.

"Competency" is a legal term and refers to a legal state. It is a broad concept that encompasses legally recognized activities, such as executing a will, entering into a contract or ability to stand trial. One’s competency or lack thereof is a judicial decision – meaning a judge or jury determines it. Adults are presumed competent until determined otherwise by a court. Incompetence is usually based on a functional deficit, such as a mental illness/condition or developmental delay.
"Decisional capacity" is a clinical state. It is the ability of a patient to make an informed decision about their medical care. Capacity is not determined by a court, but rather a physician. The physician does not need to be a psychiatrist to assess one’s capacity. Decisional capacity is decision specific and can change over time.

To determine decisional capacity, one must show that the patient has the ability to:
1. understand the relevant information, including the nature of their illness or injury and the need for treatment;
2. appreciate their situation and the medical consequences, including treatment options and the risks and benefits of each (including the risks of doing nothing);
3. reason about treatment options, meaning being able to manipulate the information in such a way as to form a rational decision (which may not be one with which the physician agrees); and
4. communicate a choice. If a patient is deemed incapacitated, the patient cannot exercise the right to choose or refuse treatment.
Note that if delirium is suspected, the cause of the delirium must be investigated and addressed before decisional capacity can be assessed.

Each of these 4 points is discussed in more detail in the following section.

2. How should a physician assess a patient’s decisional capacity

Understanding relevant information: The patient’s task is to understand the fundamental meaning of the information communicated by the physician. Suggested physician questions for assessment include:
* “Can you tell me in your own words what I told you about your medical condition?”
* “Can you please tell me what I have recommended and the risks and benefits of this treatment and alternatives?”
* “Can you paraphrase the risks of no treatment?”
Appreciate the situation and medical consequences: The patient’s task here is to acknowledge his/her condition and likely consequences of treatment options. Suggested physician questions for assessment include:
* “What do you believe is wrong with your health?”
* “Do you believe you need treatment?”
* “Why do you think I am recommending this treatment?”
* “What do you think could happen if you do not receive treatment?”
Note that courts have held that patients who lack insight into their illness do not have decisional capacity.
Reason about treatment options: Here, the patient’s task is to engage in a rational process of manipulating the information provided to them. Suggested physician questions for assessment include:
* “How did you decide to accept [or reject] my recommended treatment?”
* “What makes your decision better than the other options?”
Note that this criterion focuses on the process of the decision-making, not the ultimate choice. Patients have a right to make a decision, even if the physician disagrees with it or finds it unreasonable.
Communicating a choice: The patient’s task is to clearly indicate their preferred treatment option. Suggested physician questions for assessment include:
* “Can you tell me what decision you have made?”
* “After hearing all of your options, what decision have you made?”
Note that frequent reversals of choice because of a neurological or psychiatric illness may suggest lack of decisional capacity.

3. Documentation of decisional capacity

A patient's decisional capacity should be documented whenever there is a question regarding the presence or absence thereof. This would be true if the patient is faced with making an important medical decision, e.g., consent for an invasive procedure or leaving AMA with a critical/significant condition needing medical intervention. The following is suggested language only and in no way directive:
“The patient and I had a discussion regarding her medical condition, need for treatment, treatment options, risks and benefits of each option, including the risks of doing nothing, my recommendation, and the patient’s decision, including how she arrived at her decision. At the time of our discussion, the patient was alert and oriented, and I had no concern that she was delirious or intoxicated. The patient was able to tell me in her own words that she understands her condition to be [insert], that I recommend she [insert], and that my reasoning is [insert]. She was able to articulate that her options included [insert]. Patient explained to me the risks and benefits of my recommendation, including [insert]. She was also able to state that if she did nothing her risks included serious illness, multi-organ failure, and even death [and was willing to accept such risks if patient actually decides to do nothing]. Patient was clear in that her decision was [insert] and the reasons for this decision were [insert].”

Disclaimer: The information provided herein is for educational and informational purposes only and should not be construed as legal advice or as an offer to provide legal services on any subject matter contained herein. While every effort is made to provide the most accurate available information, I cannot guarantee that the information provided is always current or reflects the most current case law or statutes. Moreover, different states and countries have different laws. I make no warranties, express or implied, as to the accuracy or fitness of the information for any purposes, or to results obtained by individuals that use the information provided. I am not responsible for any action taken in reliance on the information contained herein. Nicole M. Chicoine-Mooney JD MD