May 27, 2020
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
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
- 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
- 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
- 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
- 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
- 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.
Appelbaum PS. N Engl J Med.
Appelbaum PS, Grisso T. N Engl J Med.
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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