Capacity v. Competency and Why it Matters
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Evaluating medical decision-making capacity can be challenging when treating patients who exhibit cognitive deficits. Understanding the physician’s role in assessing capacity versus the judicial determination of incompetence can make a significant difference in how these situations should be approached.
In healthcare, medical decision-making capacity refers to “an individual’s ability to understand the significant benefits, risks, and alternatives to proposed health care and make and communicate a healthcare decision” (Uniform Health Care Decisions Act of 1993). Medical decision-making capacity is specific to the proposed medical intervention, and it can change over time. Incompetence is a legal term that refers to an enduring general inability to make valid decisions. This is established by a judge or magistrate, and it is reserved for individuals who are presumed to be permanently and markedly impaired. Ultimately, physicians make decisions about a patient’s medical decision-making capacity; courts determine incompetence. Because capacity and competency are not interchangeable, physicians should be sure to use correct terminology when documenting in patients’ medical records.
In 2004 a study completed by Kings College in London estimated the prevalence of mental incapacity in medical inpatients to be nearly 40%, yet only 24% of the patients were identified as lacking capacity by the medical care team (Raymont, et al.). This is not only concerning in that it is under–recognized, but it puts into question the validity of informed consent. Elements of decision-making capacity include the ability to communicate a choice, the ability to understand and appreciate relevant information regarding risks, benefits and alternatives, and the ability to interpret and manipulate information rationally and logically in a coherent manner. If the patient cannot meet these elements of capacity, then the patient should be evaluated to determine if restoration of capacity is possible.
Generally speaking, medical providers are concerned more with a patient’s medical decision-making capacity and they are not typically involved with determining an individual’s financial capacity, driving capacity, testamentary capacity, or ability to consent to a sexual relationship. It is also important to note that a patient can lack capacity in one area but still have capacity in another. For example, a patient may be able to identify a loved one that they trust to serve as their agent, but not have the capacity to consent to a complex medical procedure. A determination of medical decision-making capacity is often best made by the primary physician caring for the patient, who is knowledgeable about the patient’s status and the proposed intervention. This does not generally require a psychiatric diagnosis or consultation, unless there is concern that a psychiatric diagnosis is specifically resulting in incapacity. In challenging or unclear cases, input from psychiatry or social work can be helpful to the physician to assist them in determining decision-making capacity. For urgent decisions, or if capacity cannot or is unlikely to be restored, a surrogate decision-maker should be utilized.
In the case where a patient lacks medical decision-making capacity and no advanced health care directive exists, state statute determines the order of priority of surrogates who can make health care decisions for incapacitated adults. Even if patients lack medical decision-making capacity and consent is sought from someone else, you should still include and discuss medical decisions with them. It also important to consider mandatory reporting requirements regarding vulnerable adults. Involving other treatment team members, such as social workers, care coordinators, case managers, and therapy services is vital to a patient’s successful medical care.
Two common myths are that, if a patient refuses medical care or makes a decision against medical advice, they must lack capacity; or to the contrary, if a patient agrees with a care plan, they must have capacity. Patients have the right to make decisions that providers don’t agree with or that are believed to be poor decisions, so long as the patient demonstrates the elements of decision-making capacity. MIEC encourages providers to maintain a high level of suspicion when a patient’s capacity causes them to pause. Taking the time to evaluate a patient’s decision-making capacity not only protects you, but it protects the patient as well.