Gurpreet Singh, M.D., Vivek C. Shah, M.D., Murali K. Kolikonda, M.D., Steven Lippmann, M.D.

Introduction
When determining a patient’s right and ability to accept or to refuse treatment, understanding decisional capacity and competence is important. Do you know the difference? When can your patient agree to or decline a recommended treatment? What should you do when your patient is not capable to make medical decisions?

Decisional capacity and competence requires that the patient is at or above the age of majority. This is the age at which a person is legally considered an adult and usually begins on one’s 18th birthday. However; this definition may vary from state-to-state.

Assessment of a patient’s clinical decision-making ability arises commonly when a person refuses medical recommendations, but it applies equally for agreeing to any suggested intervention. Consent by a patient or a surrogate decision-maker is the expectation before any treatment is agreed upon or declined.

When family is not present, in an overtly dangerous condition threatening life or limb in a non-decisional patient, the physician may institute emergent treatment without consent. Otherwise, each state and many hospitals have policies that deal with administering treatment to people not able to be their own decision maker during less urgent situations.

Decisional capacity
The ability of patients to make their own clinical decisions about accepting or rejecting a suggested treatment. Decisional capacity includes three components:

1. patients realistically understand their condition and prognosis
2. patients appreciate the possible pros and cons of the intervention, alternative options, and that of declining it
3. patients are able to consistently communicate the decision

Decisional capacity is a clinical determination made by a licensed physician at the bedside upon evaluation of the patient. Decisionality can vary with the clinical status, even over a short duration, e.g., someone might become non-decisional during an intoxication and return to decisional capacity once the intoxication resolves. Thus, decisional capacity determinations must be made at the time of the consent and intervention.

Choices by a patient need not reflect the decision that a doctor or society considers appropriate, so long as the reasons have rationality. Cognitive impairments have a powerful negative influence on decisionality; however, individuals with a psychiatric disorder are not necessarily without decisional capacity.

Whenever a patient is declared non-decisional, the physician must find an appropriate surrogate decision-maker. Usually this is a close family member, commonly a spouse, adult child, or parent. In emergent circumstances, sometimes the physician must act as the surrogate decision maker.

Competence
Everyone is deemed competent once they reach the age of majority, unless declared incompetent by a court order. It is a legal definition, which assumes that a patient possesses the mental ability to understand a situation and to make reasonable decisions, including appreciation of the potential consequences.

Incompetence is determined only by a judge in a judicial court hearing. A judge can render a person incompetent or reverse that order for an individual to become legally competent again. In cases of incompetency, the individual loses the legal right to determine medical decisions, and the court designates a guardian that becomes the surrogate for making that patient’s healthcare decisions. Once incompetent, someone can regain legal competence only by a judge’s ruling at a subsequent court hearing.

	Decisional Capacity	Competence
Evaluator	physician	judge
Where	bedside	court
Duration	varies by clinical status	permanent
Reversibility	by a physician, on a clinical basis	only by a judge, in a new court hearing
Surrogates	family, doctor, others, etc.	guardian appointed by a judge

Surrogate decision makers
A surrogate decision-maker determines all treatment selections on behalf of the patient. The surrogate decision-maker selects choices in accordance with what they believe the patient would choose for themselves, be in the patient’s best interest, yet, not necessarily what the surrogate or physician prefers. Selection of surrogate decision-makers and guidance at their choices may be provided by living wills, power-of-attorney statements, family input, etc.