MODULE 02 Educational Guide On the Determination of Decisional Capacity The purpose of this document is to provide guidance in making a determination regarding a patient’s capacity to make health care decisions. BASIC PRINCIPLES “Adults with decisional capacity have a firmly established right to accept or reject medical treatment (The New York State Task Force on Life and the Law, 1992). “ Every adult is presumed to have the capacity to make health care decisions unless determined otherwise. The capacity to make health care decisions is typically defined in New York State law as “the ability to understand and appreciate the nature and consequences of health decision, including the benefits and risks of and alternatives to any proposed health care and to reach an informed decision.” (New York Health Care Proxy Law, Article 29-C of the New York Public Health Law). Decision-making capacity must be adequate for the decisions being considered but does not mean perfect rationality. DETERMINATION OF CAPACITY/INCAPACITY There is often confusion between competence and capacity and at times these terms are used interchangeably. The term competence no longer has a significant meaning under current law. For the purpose of this document the term capacity is limited to the capacity to make health care decisions. Capacity to make health care decisions is not static and must be re-evaluated whenever new decisions need to be made regarding health care. Patients may be determined to have the capacity to make some health care decisions, yet lack the capacity to make others. For example, a patient may have the capacity to assign an agent to make health care decisions for himself/herself but lack the capacity to give an informed consent for a complex procedure himself/herself. In another example, a patient may be able to decide about a thoracentesis, yet be unable to make an informed decision about a thoracotomy. The determination that an adult patient lacks decision-making capacity to make health care decisions shall be made by an attending physician to a reasonable degree of certainty. For routine decisions, determination by one physician is sufficient. For decisions regarding the withholding or withdrawing of life sustaining treatments, the concurrence of a second physician regarding the patient’s decision-making capacity is required. The medical justification for the determination of a patient’s lack of decision-making capacity must be documented by the physician in the medical record. If able to understand, the patient must be informed of the incapacity determination. The patient object to the determination or to decisions being made for him/her health care gent, the patient’s objections and decisions take precedence. To override these objections or decisions, it would be necessary to obtain a court order. In the face of uncertainty about a patient’s capacity to make health care decisions, it is always advisable to seek more evidence, e.g., psychiatric consultation. Incapacity should not be determined simply because: The physician disagrees with the patient’s decision; The family disagrees with the patient’s decision; The patient has periods of confusions; The patient has lacked decision-making capacity in the past; There is a guardian or conservator appointed; There is a Power of Attorney; The patient has changed his/her mind; The patient has a different set of values (eg., Jehovah’s Witness); The patient has low intelligence; The patient is elderly; The patient has a diagnosis of mental illness;* The patient is mentally retarded;* The patient is a no-emancipated minor;* *There are special provisions for these patients in law. Both the DNR Law and the Health Care Proxy Law provide that a health care provider who acts reasonable and in good faith will not be subject to criminal prosecution, civil liability or deemed to have engaged in professional misconduct for following a patient’s directives as permitted under these laws. The Ethics Committee is available for consultation in cases in which there is uncertainly, doubt or disagreement.