Definitions

• Competency: a legal term regarding an individual’s ability to make their own decisions. Assessment of competency requires a judge and formal hearing.
• Decision-making capacity: a medical assessment by health care providers regarding the ability of a patient to make informed decisions. 
  • Psychiatric evaluation is not always necessary but can be helpful in making and documenting this determination.
  • Decision-making capacity is both decision and time specific. Patients may have capacity for certain decisions but not others and this may fluctuate over time.

Application

Assessment of a patient’s decision-making capacity frequently takes place during the routine patient-physician interaction, often without either party being aware. However, whenever a patient’s decision-making capacity is being disputed, thorough assessment and potentially surrogate decision-making are required. Most often, questions of patient decision-making ability arise in the geriatric population with dementia or in individuals with co-morbid psychiatric disease.

• Assessing decision-making capacity: see section below.
• Surrogate decision-making: when a patient lacks decision-making capacity, look for guidance in an advance directive, Durable Power Of Attorney (DPOA), next of kin, or court ordered guardian. Informed consent applies to surrogates. 
  • Standards for decisions include:
    • Substituted judgment: what decision would the patient make if they were capable?
    • Best interests: what decision is in the best interest of the patient?
• Medical probate: 
  • If there is no surrogate decision-maker available and a patient lacks capacity, a court may order a medical probate for authorizing treatment. If a patient regains capacity to give informed consent, this court order becomes invalid.
  • Until a probate is in place, the patient can be held against their will until treatment can be provided.
  • While awaiting medical probate, the physician can act as the surrogate decision maker as long as treatment is not invasive. It is advisable to involve the risk management department early. 
• Medical conservatorship:
  • A conservator is a court-appointed surrogate who is responsible for giving consent for medical treatment in patients with sustained loss of capacity to give informed consent. Informed consent still applies, and the conservator is obliged to act in the patient’s best interest, taking into account patient preferences.
  • A temporary conservatorship, or “T-Con”, may be granted for 30 days upon the recommendation of a conservatorship investigator to expedite this process.
• For information regarding psychiatric loss of decision making capacity, see The Hospitalist: Involuntary Holds.

Approach to Determining Decision Making Capacity

Critchfield JM, Williams MV. Care of Ill Socially Complicated Patients in the Hospital Medical Management of Vulnerable and Underserved Populations. McGraw-Hill, New York, 2007:407-418.

Lo B. Resolving Ethical Dilemmas: A Guide for Clinician, 2nd Editions. Lippincott Williams & Wilkins, 2000:80-93.