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January 2012
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Determining if a Patient Can Make His or Her Own Decisions

This column is the first in a series focusing on ethical issues in healthcare.

Patients are always presumed to be able to make their own health care decisions unless the physician determines otherwise. It’s important to remember that a decisional patient has the right to refuse treatment and make decisions that a doctor may disagree with or find ill-advised.*

Decisional Capacity is not a permanent designation. It can change and be influenced by medications, pain, time of day, depression, mood, delirium, and other factors. A patient may also have capacity to make some simple choices but not more complex treatment decisions. The more significant the consequences of a decision, the greater the evidence of Decisional Capacity is required.

It is not uncommon for patients who have a psychological diagnosis, are developmentally disabled, elderly, brain injured, non-verbal or non-compliant to have their Decisional Capacity questioned. Though none of these things directly implies or determines lack of Decisional Capacity, they do indicate the need for a physician’s careful assessment.

Whenever consent is required, physicians should determine if the patient understands his or her medical problem, the risks and benefits of the recommended surgery, treatment or procedure; the risks and benefits of available alternatives, and the risks and benefits of refusal of care. The physician should also determine if the patient can explain how he or she made said decision. Don’t forget, physicians need to assess how the decision was made, and not just the decision itself.

Asking patients “yes” and “no” questions (i.e., “do you understand?”) is not sufficient to determine Decisional Capacity. Physicians may rely on substantiating documentation by nurses, social workers, chaplains, ethicists and psychiatrists, but in the end, the responsibility for observing, assessing and documenting Decisional Capacity lies with the attending physician.

For more information about Decisional Capacity, or to request an ethics consult, please contact Meg McClaskey, ethics consultant and manager of Spiritual Care Services at 847.618.4255. An order for an ethics consult can also be placed in CareLink.


* Decisional Capacity is not the same as Competency. A determination of Incompetency is permanent and decided by a court.

Information adapted from:
Assessing Competence to Consent to Treatment, by Grisso and Applebaum, 1998, Oxford University Press
Aid to Capacity Evaluation (ACE), University of Toronto Joint Center for Bioethics

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Last Updated 04/10/2009