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Decision-Making Capacity

Assessment of decision-making capacity is based on psychological, medical, legal and social issues, including the Constitutional liberty interests of the individual.

The basic assessment question involves a determination of what decisions the individual needs to make, the context for those decisions, and what aspects of the individual's functioning may impair his/her ability to make competent decisions.

The terms "Capacity" and "Competency" are often used interchangeably and either term used in a document may refer to either or both of the technical definitions.

Technically, according to the Uniform Health Care Decisions Act (1993, p. 6), "Capacity" means "an individual's ability to understand the significant benefits, risks, and alternatives" involved in any particular situation. Typically assessed by psychologists, capacity refers to whether individuals have the evaluative ability to make knowing and voluntary decisions regarding advance directives, treatment, disposition of property, and so forth.

"Competency", in contrast, is a legal determination that takes into consideration moral and other value judgments with regard to whether an individual requires assistance in making decisions or even requires that decisions regarding his/her person and property be based upon the substituted judgment of another individual, a guardian.

When an individual is believed to lack the capacity to make medical decisions, physicians or psychologists may certify that the individual is believed to lack the competency to decide for himself or herself with regard to those decisions. If there is a Power of Attorney for Health Care, these doctors, by their certification, can put that document into effect.  

Mental capacity can be limited by decline associated with illness that affects the functioning of the brain. Mental decline can be related to neurological disorders such as dementias or mental retardation or to psychiatric illness such as schizophrenia or psychosis, and it can be permanent and irreversible, or transient and reversible. Neurological disorders are more often associated with permanent mental decline, whereas psychiatric disorders are more often associated with transient mental decline. Therefore, legal interventions such as Power of Attorneys, or Guardianships may be activated permanently or temporarily.  

Until at least the 1970s, it was common for evaluations to conclude that an individual was either "competent" or "incompetent". In recent years it has become increasingly clear that the proper question is “competent for what,” and “incompetent for what,” and under what circumstances each conclusion might be applicable. An individual who lacks the evaluative capacity to make knowing and voluntary decisions about medical issues may be perfectly capable of contracting or making a will. Unless an individual is profoundly mentally retarded or in a vegetative state, he or she will have at least limited competencies to make a variety of decisions.

There is virtually no diagnosis that necessarily indicates that an individual lacks the evaluative capacity to make knowing and voluntary decisions. An individual may have a traumatic brain injury, dementia, mental illness, or disability related to alcohol or other drug abuse, and still be able to make at least some decisions that meet the statutory requirements. The relevant question is, what decisions does the individual have the evaluative capacity to make knowingly and voluntarily. Sometimes a person might be competent one day and lack competence the next day.  A person who is competent when he executes a last will might be incompetent two hours later, but the will he made when competent will be legally binding. 

The client, of course, needs to know what he or she is signing.  This means that when discussing the drafting and review of various legal documents, the client must understand the need for a particular document and what the document does. There are slightly different standards with important differences in competency for different types of legal documents. 

Testamentary capacity for executing wills requires knowing the objects of one’s bounty, the property held, and the disposition of the property one makes in one’s last will.  It is actually a lesser standard than that which is required to enter into a contract.  To appoint a health care agent or a future guardian, a lesser standard applies – you need to know whom you wish to act for you if you cannot act for yourself. 

To make a gift, you must understand the nature and effect of your donation.  To grant a deed and enter into a contract (including a divorce agreement), you must be able to handle your financial affairs and be able to transact business.  All of these are subject to a sliding scale of competency and need to be evaluated on a case-by-case basis at the time you are working with the client.

In Massachusetts, state law relegates the determination of mental and legal competency to physicians and psychologists.

The Massachusetts Uniform Probate Code (MUPC) requires a medical certificate in order to have a guardian or conservator appointed to make decisions for an incapacitated person (MUPC Section 5-303 and 5-404).  The medical certificate must be completed by a registered physician, a licensed psychologist, or a certified psychiatrist nurse clinical specialist. 

There are questions (in the form of fill-in-the-boxes) regarding overall impairment (alertness, memory, emotional and psychiatric functioning, ranging from “No” impairment to “Severe” impairment).  There is a question as to how these impairments cause the individual to “have an inability to receive and evaluate information or make or communicate decisions.” 

The nature of decision-making

The MacArthur Treatment Competence Study (http://www.macarthur.virginia.edu/ treatment.html; see also Grisso, T. & Appelbaum, P.S., 1998, Assessing Competence to Consent to Treatment. Oxford University Press, New York; Slobogin, C., 1996, Appreciation as a Measure of Competency: Some Thoughts About the MacArthur Group’s Approach. Psychology, Public Policy & Law 2) on decision-making capacity in the context of competence to consent to treatment, identified the following functional abilities that can apply to virtually all decision-making:

1. 1. “The ability to express a choice.” This is a very simple functional ability: given two options, most people can state a choice between them. It is also necessary for the individual to maintain that choice over time, not vacillate back and forth.

2. 2. “The ability to understand information relevant to treatment decision-making.” Understanding requires that the individual be able to take in the information given (e.g., by a physician) regarding the current situation, assimilate it, and paraphrase that information. If the paraphrase is accurate, the individual is likely to have understood the information. It is also essential that the individual hold no obviously false beliefs regarding the facts of the situation.

3. 3. “The ability to appreciate the significance of that information for one’s own situation, especially concerning one’s illness and the probable consequences of one’s treatment options.” Appreciation requires applying the information to one’s particular situation, including understanding the nature of one’s disorder and the nature of the likely consequences for each treatment option. The ability to personalize the information received makes it more likely that the individual will engage in relevant considerations when making a choice among options. Further, the individual’s beliefs about his or her condition, about the probable efficacy of proposed treatments or other courses of action, and about his or her treatment (or other service) providers are part of the definition of appreciation. If the individual lacks awareness or insight, appreciation is not possible.

4. 4. “The ability to reason with relevant information so as to engage in a logical process of weighing treatment options.” Reasoning requires that the individual be able to weigh the “advantages and disadvantages of and alternatives to accepting the particular medication or treatment”⁹ utilizing a logical process of thought, and being able to explain that logic to the treatment provider, the attorney, and others. The issue here is whether cognitive or emotional factors or a mental illness interfere with decision-making to a degree that prevents the individual from making a well-reasoned decision.

Legal standards/requirements may vary and different doctors/judges make decisions based on different levels of functional ability.

Although incompetence denotes a legal status that in principle should be determined by a court, resorting to judicial review in every case of suspected impairment of capacity is not feasible. Pragmatically, usually physicians determine patients' capacity and decide when to seek substituted consent. Indeed, statutes regarding advance directives for medical treatment generally recognize a medical determination of incapacity as the trigger for activating these directives. However, since consent obtained from an incompetent patient is invalid, physicians who do not obtain a substituted decision may be subject to claims of having treated the person without informed consent.

Pragmatically, while the capacity to express a choice is often clinically accepted as sufficient  (unless the patient clearly appears to have difficulty with understanding), legal standards require a higher level of capacity. Paraphrasing and expressing understanding is usually a minimum requirement. However, if the potential risks of a medical procedure or decision are substantial it is important that the individual be required to learn enough about the recommended procedure and how it applies to him/herself, so that a truly knowing and voluntary decision can be made. If the individual is not capable of making a decision at this level when the risk is high, care should be taken to ensure that significant others are involved in the decision-making. If the significant other also has difficulty fully appreciating the risks, a meeting with the patient, the significant other, the physician, and the evaluator should be attempted, with a careful and critical examination of the medical issues and an opportunity for discussion and questions. If still insufficient for adequately informed consent, a judicial determination becomes necessary.

Seeking Professional Assistance

For a screening evaluation, many forensic psychologists have experience with evaluations of individuals whose capacity for legal decision-making is questionable.

For a highly detailed, very specific evaluation not only of capacity/competency but also of the nature and extent of the client’s incapacity, a neuropsychologist is often the best choice. Through the use of numerous tests, neuropsychologists can generally identify the specific brain structures that are deficient. Most neuropsychologists testify in court cases at least on occasion, and some do so frequently.

While most physicians do not have specialized knowledge regarding capacity/competency issues, a geriatrician or a psychiatrist may have.

The purpose of testing is to use standardized tests, where possible, and non-standardized instruments where necessary, to address the functional capacity of the individual.

In the cognitive area, the assessment will address factors such as memory; attention; ability to express, understand and reason regarding the relevant information; organizing ability; planning ability; insight and judgment. Judgment requires that the individual be able to adequately process information, have a sufficiently reality-oriented appraisal of a situation, be able to handle emergencies and compensate for areas of decreased or absent functioning, and avoid placing oneself or others at risk.

In the functional area, the assessment will address the individual’s abilities related to managing one’s home, money, health, obtaining food, communication, as well as self care (e.g., bathing, toileting, grooming, getting dressed, moving about one’s home and community, eating) and any other relevant areas of functioning. Information regarding these activities may come from observation, medical records, and/or statements of family members.

While personality and mood functioning are not usually part of a capacity/competency evaluation, they may be relevant in a given case. For example, depression can mimic dementia and ruling out a mood disorder and/or assessing its severity becomes relevant to the competency evaluation.

Most capacity/competency evaluations can be conducted in a single interview and testing session of perhaps 3-4 hours, after the evaluator has reviewed all relevant medical, psychological, social and functional data available. A simple, straightforward evaluation may require nothing more than a clinical interview and a mental status evaluation.¹¹ The more complex the issues to be addressed, of course, the longer the evaluation and the morel likely it is to include formal testing. If the individual is too fatigued or otherwise unable to spend up to two hours at one sitting (including any necessary breaks), a second evaluation session may need to be scheduled, typically the next day or the day after. This will also be the case if the evaluator suspects a medical or other problem is a significant issue that should be addressed before conclusions are drawn, or if the individual’s performance is substantially below the level expected from the other data (medical, psychological, social, functional).

Depending on the amount and type of collateral information, collateral interviews may need to be done prior to the capacity/competency evaluation, or may be postponed until after that evaluation.

In terms of costs, under some circumstances, a referral from a client’s primary care physician to an expert in issues related to capacity/competency may be covered by health insurance or Medicare. However, a referral from an attorney would rarely if ever be covered by health insurance or Medicare, and it should be anticipated that the attorney’s client will pay for the evaluation. The cost of the evaluation depends on the nature and extent of the evaluation that must be done to respond to the referral question(s).