Competency and Capacity
last authored: Dec 2011, David LaPierre
last reviewed:
Introduction
The unprecedented growth in the number of seniors means there is an increasing need to assess competency.
There is a tough balance weighing the person's autonomy against the need to act in that person's best interests. In general, the rights of the individual supercede the rights of society to interfere.
The is very important, as being found incapable removes a person's rights.
Competence is the ability to make a decision and the minimal conitive capacity required to perform a recognized act. It is a legal judgment located on a continuum, falling into three main categories:
Capacity is a legal, not medical, term. Being capable carries rights. We do not link capacity to test result (ie MMSE) or diagnoses (ie stroke). It is a decision test, related to the environmental context. It is a functional test to see if the individual can meet demands placed on them.
Capacity to consent/refuse treatment, to undertake contractual oblighations, drive, vote, decide lifestyle, testamentary capacity, and participate in research.
Guiding Principles include autonomy vs paternalism, benovlence vs malificence, futility, and resource allocation.
Capacity has nothing to do with the rightness or wrongness of a decision; rather, it only speaks to the quality of thinking. There are two key questions: Does the patient understand the challenges of an issue? and Does the patient appreciate the consequences?
Components of Competency
- personal care
- financial capacity
- testamentary capacity
- medical care
Personal care
Personal care is the ability to take care of oneself: provide shelter, food, clothing, a safe, secure environment, and manage ADLs. It also includes health.
It is important to assess:
- Appreciation of strengths and weaknessess, and willingness to make use of supports if necessary.
- History of poor judgment resulting in harm to self or others.
Financial capacity
Financial capacity is the ability to administer an estate: manage property, enter contract, make a will, be a corporate partner, act as a trustee, and assign power of attorney.
It is important to assess:
- Assess assets, income, expenses, and debt. Get corroboration by collateral. Get a history of past management of finances in the past.
- Where do you live?
- What bank do you use?
- How do you pay your bills?
- If poor judgement is used, what are the implications?
- Patient's preference for estate management.
- Will they accept a financial advisor?
Testamentary Capacity
- what is a will?
- when does it come into effect?
- who is your executor?
- what does your current will say?
- what do you think the consequences of this change will be?
Medical care
consent to treatment
sign out AMA
Treatment decision competency
Does the patient understand:
- the condition for which the treatment is proposed?
- the nature and purpose of the treatment?
- risks in undergoing, or not undergoing, treatment
Assessing Competency
Understanding (being able to repeat and explain) and appreciating (being able demonstrate knowledge of consequences) are the key things we look for in competency assessment. A home visit is ideal, but it is not possible, it is critical to bringing someone along to give collateral.
In many places, any physician can legally assess competency. The best folks include family doctors, psychiatrists, and geriatricians. Others can include neuropsychologists, social work, RNs, OT/PT, or other team members.
If competence fluctuates, ensure people are safe during the poorest level of functioning.
Assess for delusions/hallucinations, or any other medical conditions, that would impair competency.
Can people express a choice? Look for:
- expressive aphasia: look for nonverbal techniques
- poor memory - inability to make a consistent choice
- depression and attending ambivalence
Can people understand relevant information for decision-making?
- impaired coprehension: receptive aphasia, poor attention span, psychiatric concerns (delusions or denial)
Can people appreciate consequences or reasoning?
- depression - delusions of punishment or hopelessness
- frontal lobe damage - evaluating consequences, insight into significant of problems, mental flexibility to adapt to changes
Assessment Tools
Standardized assessment and criteria is the goal.
Mental status exam: orientation, memory, concentration, calculations, delusions/hallucinations, insight and judgment, intellect Aid to Capacity Evaluation |
Cognitive assessment tools can provide information about diagnosis, but this has no impact on competnecy. Tools include:
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Substitute Decision Makers
The substitution decision maker (SDM) makes a decision in relation to a specific medical treatment, if the patient is deemed incapable. This is in accordance with the patient's prior capable informed/expressed wishes, or in according with what the SDM believes to be the patient's best interests. It has nothing to do with what the SDM wants for the patient.
There is a hierarchy determining who is considered the SDM. In Ontario, for example, the hierarchy is:
- court-appointed guardian
- power of attorney - who will act in place of a patient. this can be in regards to personal care or property.
- spouse or common-law partner
- adult child
- parent
- adult sibling
- any other adult related by blood or marriage
- public trustee
Acts
Hosptials Act
Psychiatrists must assess capacity to consent to treatment or financial competence in a psychiatric facility, but not personal care competence.
Incompetence can be declared without a judge, and lasts for the duration of hospitalization only
Incompetent Person's Act
Requires medical evidence from one medical practitioner. Judge must declare a person incompetent, and then appoint a guardian for estate and person.
Adult Protection Act
Resources and References
Sessums LL, Zembrzuska H, Jackson JL. 2011. Does this patient have medical decision-making capacity? JAMA. 306(4):420-7.
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