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StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2024 Jan-.
Christopher Libby ; Amanda Wojahn ; Joseph R. Nicolini ; Gary Gillette .
Last Update: May 29, 2023 .
This article reviews the concepts of capacity and competency with regard to clinical practice. More specifically, it discusses the foundational ethical principles of respect for persons, beneficence, and justice, the importance of a thorough understanding of these principles, and the difference between capacity and competence. Finally, this article analyzes how to assess and document capacity for medical decision-making.
Review the relevant definitions of competency, capacity, tort, informed consent, medical provider, respect for persons, beneficence, and justice.
Identify situations in which a capacity assessment is indicated. Outline how to assess and document capacity for medical decision-making.Summarize why assessment and documentation of capacity is imperative for patient safety and protection of providers from legal retribution.
The Hippocratic Oath instructs physicians and other medical providers to first, “do no harm”. Similarly, the three ethical principles laid forth in the Belmont Report ask providers to prioritize respect for persons, beneficence, and justice in their daily practice. While is it critical for providers of medical care to uphold these tenets, frequently situations arise where it is impossible to fulfill all. Medical providers are tasked with multiple roles simultaneously - healer, patient advocate, protector of hospital staff, guardian of public health, citizen, and a humanist and spiritual being. Providers must be prepared for the situation that places these roles and priorities at odds. This article will discuss relevant definitions, delve further into the ethical principles introduced above, and prepare medical providers for how to approach these complex patient encounters with the intent of maximizing benefit for all and protecting the provider(s) involved.
Relevant Definitions
In any academic conversation, it is critical to ensure that all participants understand the shared lexicon. This is even more important concerning the topic of competency and capacity - an ethically and legally charged subject, that if not understood or executed properly can contribute to patient harm and legal action against medical providers.
Capacity is defined as "a functional determination that an individual is or is not capable of making a medical decision within a given situation" [1]. This is relative to the baseline abilities of the patient, pertains only to the current situation, and takes into consideration the severity of the possible consequences.
Competency is defined as “the ability of an individual to participate in legal proceedings”. Legal competence is presumed - to disprove an individual's competence requires a hearing and presentation of evidence. Competence is determined by a judge [1][2][3]. This legal determination is never determined by medical providers. Because this determination is not made by providers we will not use this term further in this article.
A Tort is defined as "an act, or omission of an act, that results in injury or harm to an individual. This is a volitional act done with intent to cause harm or suffering" [4].
Informed Consent is defined as "the systematic approach to patient education and medical decision-making regarding a particular treatment or procedure" [5]. This is both an ethical and legal imperative in modern medicine and requires a discussion of the nature of the procedure, the risks and benefits, the reasonable alternatives, and an assessment of the patient's understanding of these items [5]. Refer to separate StatPearls articles on this topic.
A Medical Provider is, in the context of this article, limited to licensed physicians (MD, DO), physician assistants, and advanced degree nurse practitioners. This term is herein limited because these are the medical professionals who are legally permitted to assess and document mental capacity for medical decision-making.
Ethical Principles Involved
When graduating from medical school, all new physicians recite the Hippocratic Oath. The Oath, regarded as one of the earliest expressions of medical ethics in the Western World, instructs physicians 1) to use medical education for the benefit of all, 2) to abstain from intentional wrongdoing or harm to patients, and 3) to hold secret the information learned about patients. Over the years, these instructions have been reduced to the common aphorism of "first do no harm".
The Belmont Report of 1976 builds from this principle of “first do no harm” and gives physicians an ethical basis from which to build their clinical practice. Spurred by incidents of unethical medical practice (e.g. The Tuskegee Syphilis Study), the Belmont Report explains and extends three fundamental ethical principles that the practitioner must use as a guide to the ethical practice of medical practice [6]. These principles are:
1. Respect for Persons: The root ethical principle here counsels the practitioner to uphold and allow for patient autonomy. This includes allowing all appropriate patients the opportunity for informed consent before receiving medical treatment or undergoing procedures.
2. Beneficence: This term is the modern equivalent for Hippocrates' concept of "do no harm". In practice, the ethical issue addressed examines the risk/benefit ratio of the proposed medical treatment, while simultaneously 1) maximizing patient benefit and 2) minimizing harm or discomfort. This involves both making decisions to benefit the patient, as well as taking affirmative steps to prevent or remove harm from the patient. What is beneficial for the patient is highly personal and multi-faceted, and involves consideration of the patient's medical prognosis as well as multiple subjective factors, such as goals of care, quality of life, financial considerations, family input, etc. 3. Justice: The overarching philosophy of this principle instructs the practitioner to ensure fair end equitable distribution of medical resources regardless of demographics, insurance status, socioeconomic status, mental disability, etc. Keep in mind that "physician paternalism" (here defined as "the policy of restricting the freedom and responsibility of patients against their will, and defended by a claim that the person interfered with will be better off or protected from harm") is not in service of these ethical principles. Coercion into the course of action that the provider thinks is best neither respects patient autonomy nor upholds the principle of beneficence. Truly bringing these principles into daily practice involves taking the time to communicate your findings and recommendations to the patient, actively listening to their questions and concerns, and making a shared decision. Ultimately, this decision may not agree with what the provider thinks is best. Supporting that decision, if appropriate, is part of practicing respect for patient autonomy.
Why Is This Important To Clinical Practice?
Despite our overall goal to uphold the ethical principles described in the Belmont Report, this is not always possible. Although physicians and other practitioners indeed provide medical care for patients, practitioners have many other roles; e.g. as a protector of hospital staff, as a guardian of public health, as a citizen, and as a humanist and spiritual being in his/her own right. Some situations arise in daily clinical practice that creates conflict between these roles and complicates the ethics of the day-to-day decision-making of medical practice. For example, imagine that you have diagnosed a patient with active tuberculosis, but he refuses treatment. In your role as a practitioner, you engage in a conversation with him about his declination of treatment and decide that the patient possesses the capacity to decline. You are therefore ethically bound to respect this patient's autonomy to make his own medical decisions but are also bound to protect and serve the health of the overall community concerning the risk of infectious contagion. How do you weigh these competing interests? What legal repercussions may you face if you prioritize one over the other?
Consider another case. You are caring for a young man brought in by police after he was found wandering on a road with no shoes. In the ED, he is agitated and combative with staff. You decide on clinical grounds that he will require a full workup including IV placement, labs, and imaging but he is adamantly screaming that he "wants to leave" and tries to strike any provider who comes near him. Can you place an IV against his will? Can you restrain or sedate him against his will? Again, what steps do you need to take to ensure you are legally protected?
Recall that a tort is an act, or omission of an act, that results in injury or harm to an individual. Specifically concerning the illustration above, the common law tort of "assault" involves "an act or omission causing an individual to experience reasonable fear or apprehension of an immediate battery." Here battery is legally defined as "harmful or offensive contact". Does the placement of the IV constitute a battery? Likewise, the tort of "false imprisonment" involves an act/omission that results in an individual "being confined or bound in a defined space with no possibility of escape." Does the act of restraining and sedating the patient constitute false imprisonment?
The question then reduces to a query of how medical providers may protect both their patients and themselves amidst this swarm of conflicting ethical principles, disagreeing roles, and risk for legal action. The answer in part lies in a complete and thorough assessment of a patient’s capacity for medical decision-making. This assessment is the foundation on which medical providers may gain legal protection when acting against a patient's immediate wishes in the service of the well-being of the patient, the staff, or the overall public.
In the context of the case above, until a capacity assessment is completed, placing an IV against this patient's will constitutes the tort of battery. Placing him on a hold constitutes the tort of false imprisonment. Chemically or physically restraining him equates to the tort of battery and false imprisonment [7]. Therefore, an assessment of decision-making capacity MUST be performed before acting without a patient's consent.
When To Access Capacity?
Evaluation of decision-making capacity should be involved in every patient interaction. The depth of this evaluation may vary on a case-by-case basis, depending on 1) the acuity of the illness, 2) the patient's age and functional status, 3) the patient's or family's goals for care, 4) the clinical environment or 5) any number of other factors. Remember that an assessment of capacity is valid only within the time, place, and situation in which the evaluation took place [8]. It is therefore a snapshot in time, and cannot be applied to any other time or situation. For example, a patient with a history of dementia does not automatically lack capacity. At the time of the capacity assessment, they may be lucid and able to participate meaningfully in the discussion, thus potentially indicating a capacity for decision-making in the present moment. However, two weeks in the future, the same patient may be disoriented to such a degree that the individual is subsequently found by examination to lack capacity. Similarly, an intoxicated patient may be temporarily impaired until the individual is sober, and may, upon achieving clinical sobriety, be able to make reasonable and sound medical decisions.
Some specific triggers to further investigate a patient’s decision-making capacity include [2][9][10][9]:
