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What is Medical Capacity?

Photo: Group Think in Healthcare Decision Making. Source: Austrian National Library

Sam, my friend from law school, flew in from Tucson with his N-95 mask in hand. He was here to visit his Aunt Tilda, who has been hospitalized with COVID. Last week, Sam asked me to prepare a healthcare power of attorney (POA) and a financial POA for Aunt Tilda to sign on his arrival.

I told Sam it would be no problem, but since talking with him two days ago, Aunt Tilda’s condition has declined. She is now on a ventilator and improving, but no one is sure what will happen next. To manage Aunt Tilda’s comfort, the doctors are keeping her sedated.

Challenge number one: An individual cannot sign a legal document if they do not understand what they are signing – it is known as “informed decision making or consent.” Mental capacity forms the basis of informed consent.

So, with Sam’s arrival and remembering our story from last week, determining capacity is where this discussion needs to start!

So...What is medical capacity?

Like many things in life, there is no one-size-fits-all answer here. “Capacity” in healthcare is about understanding the medical decisions an individual is making, having sufficient awareness of the situation, and, ultimately, the choices to be made. This is an informed healthcare decision and an individual one if one has capacity.

There are differences and nuances between medical capacity and legal competence. The main differences are that medical capacity is determined by a physician and is a functional assessment, while legal competence is a global assessment made by a judge in court.

Aunt Tilda is currently sedated and on a ventilator, therefore she likely does not currently have the capacity to make a healthcare decision. The hope is that she has previously discussed and expressed her wishes to both her doctors and to her family, and ideally, signed a healthcare POA authorizing an agent (surrogate) to act on her behalf.

Who decides capacity?

In general, physicians or other licensed professionals trained to understand the nuances of capacity are the ones that make medical capacity decisions. That decision is then used by judges to decide “legal competence” when necessary. Until Aunt Tilda got sick and without other factors, the presumption is that she has the medical capacity and normally would be able to make her own life decisions.

For example, understanding the benefits and risks of a treatment or procedure before saying yes or no to receiving it. The four areas a clinician will focus on are:
  • Your ability to communicate a choice
  • Your understanding of the options
  • Appreciation of the consequences of what you decide; and, to some extent
  • Your rationalization/reasoning

As I was talking with Sam, I also went over the fact that there are differences and nuances between medical capacity and legal competence. The main ones are that technically, medical capacity is determined by a physician and is a functional assessment, while legal competence is a global assessment made by a judge in court while relying on physician input.

Aunt Tilda is currently sedated, on a ventilator, and very sick. As Sam and I discussed the situation, we were both aware that she likely does not at the moment have the capacity to make a healthcare decision or sign a healthcare power of attorney as to who should make her decisions if she cannot. The hope is that she has previously discussed and expressed her wishes to both her doctors and some other member of her family, and ideally, signed a healthcare POA authorizing an agent (surrogate) to act on her behalf.

Legally, how does Sam resolve this if there is no guidance?

In general, physicians or other licensed professionals who are trained to understand the nuances of capacity are the ones that make medical capacity decisions. When necessary and if no one has authority, the physician determination is used by judges to decide “legal competence” and can look at temporary, emergency, or permanent guardianships. Until Aunt Tilda was sick and without other factors, the presumption would have been that she had the medical capacity and was able to make her own life decisions.

In cases such as dementia, where there is often a more gradual change in mental state, the legal system does not just show on the first day of a dementia diagnosis and tell someone that they can no longer make their own decisions. Rather, it can be a gradual process with the most important objective from a legal perspective being for the person to maintain their autonomy as much and as long as possible. U.S. courts will typically follow a system of “supported decision making” (more on this topic in future Aunt Tilda stories).

If a judge must decide legal competence, what is considered?

Medical capacity and legal competence are related but not the same. The six “pillars of capacity” before a determination involving legal competence is made include:
  • The individual’s medical condition
  • Cognitive functioning
  • Daily living functional abilities
  • Consistency of the individual’s functioning with his/her values, preferences, and lifetime patterns
  • The risk of harm in the context of the individual’s social and environmental supports
  • Means to enhance capacity through accommodations and effective communication techniques

Today’s story is not about the long-term decision-making situation, though. Rather, it is one that many of us so often face in taking care of our loved ones, i.e. a person having the medical capacity to make a series of emergency decisions.

The Takeaways for Sam….

  • If no one has the authority to decide and it is an emergency, the healthcare team can and will act in the patient’s best interests.
  • If there is no Advance Directive and no one with authority, it is possible that healthcare decision-making will evolve into “group think” to spread the risk of making a wrong decision. Pre-COVID, deciding to put someone on a ventilator was a little more straightforward. As a life-saving strategy, ventilator support in a COVID scenario has changed the treatment discussion.
  • If Aunt Tilda did not complete an Advance Directive, Sam technically does not have authority and a close friend may have just as much say.
  • If Aunt Tilda’s condition continues to deteriorate, the decision-making will become more complicated.
  • If Aunt Tilda recovers her physical health, but not her healthcare decision-making capacity, Sam’s next step may be Probate Court to apply for guardianship if he wants to establish control.
  • And finally, one must ask oneself – is what is happening what Aunt Tilda would have wanted or chosen for herself? Sam is close to his aunt but is in a quandary and the healthcare team doesn’t know her well. There is no one to make decisions while trying to honor her fundamental rights to choose for herself and her values.

In the meantime, Sam left with an advance healthcare directive in hand for Aunt Tilda to sign if she is determined able to do so. He understands the process and is considering his next steps.

Resources:

  • Evaluating Medical Decision-Making Capacity in Practice, American Family Physicians, July 2018
  • ABA, Judicial Determination of Capacity of Older Adults in Guardianship Proceedings, 2006
  • Blanck and Martinis, Inclusion, “The Right to Make Choices” (2015)