Decision Making Capacity

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Decision Making Capacity

• Gary J Gala, MD

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Youve learned the what the how

• But what will the patient allow???

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Objectives

• To differentiate competency from capacity
• To be able to perform a capacity examination

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Schloendorff v. New York Hospital (1914)

• Every human being of adult years and sound mind
  has a right to determine what shall be done with
  his own body and a surgeon who performs an
  operation without his patient's consent commits
  an assault for which he is liable in damages.
  This is true except in cases of emergency where
  the patient is unconscious and where it is
  necessary to operate before consent can be
  obtained.

Justice Benjamin Cardozo
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CapacityA part of informed consent
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Exceptions to Informed Consent Doctrine

• Emergencies
• Incompetent patient
• Waiver of informed consent
• Therapeutic privilege

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Capacity ? Competency

• Clinical judgment
• Can be assessed by any physician
• Usually question- specific, time-specific,
  short-term
• Surrogate decision-makers, if necessary

• Legal concept
• Can only be adjudicated by a court
• Usually more global, long-term
• Designated decision-makers

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If the Patient Disagreeswith the Doctor

• they obviously
• lack capacity

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If the patients a Psych Patient
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OKwere done
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Ask yourselfwhat does the patient know?

• Diagnosis
• Proposed treatment
• What was their answer?
• Do they have a guardian?

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Ask yourself about the medical necessity

• It drives everything
• Without it there is no capacity eval

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Ask the patientWhy?
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Capacity

• Understand nature of disease processwhats wrong
  with you

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Capacity

• Understand treatments being recommendedwhat do
  the docs want to do?

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Capacity

• Understand consequences of your decision

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Voluntariness

• What the heck is it?
• What does it mean in practice?

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Consistency

• Same over time
• Not a flip flopper

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One size does NOT
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Conceptualizing Capacity
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The Problem of Rationality

• What is it?
• The process rather than the conclusion
• The influence of postmodernism

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Does not Participate

• Laws assumes competency
• Depends on the risk

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Easy when its easy
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Theyre gonna needSurrogates or Guardians
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The Sorrow and the Pity
Often a Bad End
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Remember yourEmotional Response
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