Bill Scheidler, MD, is assistant clinical professor of psychiatry at the University of North Carolina, Chapel Hill. He also is associate training director for the consultation-liaison fellowship at UNC and is a lead consultant at UNC Hospitals Hillsborough.

Dr. Scheidler spoke with host Lorenzo Norris, MD, about how to think through patients’ decision-making capacity in medical (rather than psychiatric) hospitals. Neither Dr. Scheidler nor Dr. Norris have disclosures.

Take-home points

• Decision-making capacity (DMC) is essential to informed consent, which is providing patients with the information necessary to make an informed decision about medical or surgical care.
  • Standards differ, depending on the U.S. state.
• DMC has four components, as defined by Paul Appelbaum, MD, and colleagues:
  • The ability to make and communicate a consistent choice
  • The ability to understand the information provided about medical conditions and decisions
  • The ability to appreciate the consequences of a choice
  • The ability to reason through the decision
• In the sliding-scale model of DMC, not all decisions carry the same weight. The assessment evaluates the risk-benefit ratio of a particular decision, and the bar for capacity depends on the ratio.
• When a patient lacks capacity and treatment over objection is pursued, the outcome is highly dependent on the hospital and state laws. Clinicians should confer with their risk management and legal team.

Summary

• A capacity assessment usually is implicit in the process of informed consent because clinicians usually are assessing whether the patient truly understands what they are consenting to.
• In the legal literature, “capacity” and “competency” are used interchangeably, but in the medical field they are different. It is easier to refer to adjudicated competency in which a judge legally determines a person’s ability to make decisions. Usually, a person lacking adjudicated competency has a guardian to guide their decisions.
• In contrast, DMC is time and decision specific. A DMC assessment includes evaluation of the four components of capacity, including making a consistent choice, understanding the medical condition and decision, appreciating the risks, and using intact reasoning.
• It is a low bar of DMC for a decision that has a high benefit and low risk (e.g., a blood draw or an x-ray). An intervention that is high risk and low benefit, such as an experimental treatment, would require the highest bar of capacity for consent. The lowest bar for DMC is when the patient decides who should make medical decisions for them.
• In capacity assessments, clinicians must remember that a patient’s desire for a certain outcome does not translate into DMC. In these impassioned cases, clinicians need to stick to the four components of capacity in their assessment. The presence of mental illness does not preclude DMC. It is helpful to consider whether the person’s psychosis or symptoms of their disorder are influencing the decision.
• If a patient lacks capacity, a surrogate decision maker should be identified. With a surrogate decision maker, it’s more likely the patient’s wishes will be honored. The surrogate decision maker hierarchy differs state by state.
• Implicit in most DMC assessments are several questions, including: What do we do next if the person lacks capacity? Treatment over objection and the outcome are highly dependent on the hospital and state laws, so clinicians need to confer with their risk management and legal team. Usually, there are specific legal statutes to guide how to proceed if a patient's incapacity puts them at danger of harm.
• When treatment over objection is the only option, teams must consider whether treatment can be delayed, and what the alternative treatments should be. The mechanisms for keeping people in the hospital are usually are coercive.

References

Appelbaum PS. N Engl J Med. 2007;357(18):1834-40.

Appelbaum PS, Grisso T. N Engl J Med. 1988;319(25):1635‐8.

Wynn S. Decisions by surrogates: An overview of surrogate consent laws in the United States. American Bar Association. 2014 Oct 1.

Centers for Disease Control and Prevention. Legal authorities for quarantine and isolation. 

National Conference on State Legislatures. State quarantine and isolation statutes.

Show notes by Jacqueline Posada, MD, who is associate producer of the Psychcast and consultation-liaison psychiatry fellow with the Inova Fairfax Hospital/George Washington University program in Falls Church, Va. Dr. Posada has no conflicts of interest.

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