Become capable of capacity assessment

Expert analysis on determining decision-making ability from Mayo Clinic meeting.


A previously healthy 61-year-old man is admitted to the hospital for pneumonia. He asks to be designated as “do not resuscitate/do not intubate.” As you try to find out why he's made that request, you learn that he and his wife are living in a car while they wait for his pension to start paying at either age 65 or his death. He has pneumonia because he aspirated during an unsuccessful suicide attempt, having decided that his wife would be better off if he were dead.

This sort of patient makes assessment of decision-making capacity difficult, psychiatrist Kemuel L. Philbrick, MD, told attendees at the Mayo Clinic Hospital Medicine course held in Scottsdale, Ariz. in October.

“Although it is possible for a person to be globally incapacitated, such as a patient in a coma, it's much more commonly task-specific…hellip;Capacity determination is also time-specific, because our patients' clinical status is often evolving,” said Dr. Philbrick, who is an assistant professor of psychiatry at the Mayo Clinic in Rochester, Minn.

The latter issue is a common problem with requests for consults on capacity. “Sometimes very efficient, well-intentioned teams call us and say something like, ‘We anticipate that Mrs. Chatfield is going to refuse to go to a nursing home. We're not ready to make that recommendation to her yet, but we'd just like to have all our ducks in a row when that time comes,’” he said. Convenient as that might be, the patient's capacity could be totally different when she's ready for discharge in a week, he noted.

Instead, specific, immediate questions should guide a capacity assessment. “For example, it might be something like, ‘Please assess whether Mrs. Chatfield has the capacity to refuse hemodialysis. We think she does, for the following reasons, but we're concerned because her daughters say this is not a decision their mother ever would have made,’” Dr. Philbrick said.

He offered a number of other tips for hospitalists on requesting and even performing their own capacity assessments. “Any physician may determine capacity,” he said, noting that competence—a determination that can only be made by a judge—is often confused with capacity, which is determined by a medical, not a legal, evaluation.

Any physician assessing capacity needs to keep in mind the sliding-scale nature of the concept. “The level of evidence that's required to confer decision making capacity varies on a continuum with the benefits and the risks associated with that particular clinical decision,” said Dr. Philbrick. For example, a patient doesn't need to demonstrate the same degree of understanding to consent to a high-benefit/low-risk procedure, like a lumbar puncture in suspected meningitis, as he does to consent to a high-risk/low-benefit treatment, like revascularization of a gangrenous extremity with multiple pre-existing comorbidities.

The same is true for refusing consent. “If a patient is refusing a low-risk but high-benefit procedure, it's important to exercise additional scrutiny and require a really solid demonstration of capacity, whereas when a patient refuses a high-risk, low-benefit procedure, then we simply don't require the same degree of rigor,” said Dr. Philbrick.

Although assessment varies with the decision required, capacity generally has 4 essential ingredients—the ability to understand facts, deliberate rationally, appreciate the consequences of a decision, and communicate a consistent choice.

In order to gather these ingredients, a physician needs to first convey information to the patient. “The patient deserves to hear the diagnosis and nature of his or her condition, the reasonably expected benefits of treatment, and the nature and likelihood of the risks involved,” said Dr. Philbrick. “Several court decisions have also held that we ought to explicitly acknowledge that we are not able to precisely predict the results of the treatment that we're recommending to the patient and also in many cases that the treatment is potentially irreversible. Lastly, the expected risks and benefits of any alternative, or that there is no alternative, should also be spelled out.”

Next, verify the patient's understanding with a series of questions, which Dr. Philbrick called the “5 Ws”:

  • Will you explain—in your own words—what we are recommending?
  • What is your understanding of how this can help you?
  • What do you understand can happen if you don't accept this recommendation?
  • What alternatives are available to you?
  • Why have you chosen to accept or refuse our recommendation?

Even with these tools, errors and challenges commonly arise in the capacity assessment process. Dr. Philbrick highlighted a few. While cognitive screens can be helpful, don't let them be the entirety of your assessment process. “A dull or mildly demented person may score poorly on the [Montreal Cognitive Assessment] but still demonstrate the ability for really practical level-headed decisions on many issues, whereas a well-educated individual who actually scores very well on the MoCA may nonetheless not have capacity for other reasons,” he said.

Also, remember that just because a patient is making a decision that you disagree with doesn't mean that she is incapacitated. “The focus here is not on the decision the patient makes, but how they got to that decision,” said Dr. Philbrick. “Are they demonstrating thinking that is consistent with their prior values, and if not, is the patient able to explain why he or she is taking a different approach now than might have been expected?”

Along those lines, make sure that the patient's decision is not coerced by people or circumstances, such as the pneumonia patient who had a financial motivation to refuse treatment.

It can also be helpful to keep in mind the categories of patients who will often turn out not to have capacity: “the delirious, demented, deathly depressed, dreadfully disturbed, and drugged,” as Dr. Philbrick put it.

Sometimes delirium is obvious, but for when it's not, Dr. Philbrick offered a quick, entertaining screening tool. “While keeping a perfectly straight face and a boring, neutral tone of voice, you might ask your patient, ‘Have I told you about my friend Frank Jones?’ Rarely a patient will answer in the affirmative, which gives you some information right to begin with. But most patients say no or are silent. Then you can go on, ‘His feet are so big that he has to pull his pants on over his head,’” he said.

Delirious patients may smile, but they won't be able to explain why the story is ridiculous. “The Frank Jones story doesn't boast the same sensitivity or specificity as the [Confusion Assessment Method] test, but a patient who can't tell you why Mr. Jones would have difficulty pulling his pants on over his head is very unlikely to truly understand the implications and what's at stake with an LVAD [left ventricular assist device] implantation,” he said. A patient who screens positive for delirium using the Frank Jones story deserves a more thorough evaluation for delirium.

In assessing patients with dementia, degree is important. “Some mildly demented patients, especially if they're given some memory aides, like writing down key facts, can maintain decision-making capacity for many decisions,” said Dr. Philbrick.

The same is true of depression. “Studies show that mildly and moderately depressed individuals typically have preserved capacity for decision making. However, a severely depressed individual tends to see the world through exceedingly bleak sunglasses,” he said.

Disturbed patients can be difficult to suss out, said Dr. Philbrick, offering the example of a woman who was refusing surgical repair of her hip fracture. Only after a long conversation did she say to the psychiatrist, “Eleven years ago, I had a hysterectomy and the doctor implanted a transmitter so that I could be monitored day and night. But now I know their tricks and I will never ever go back to the operating room.”

Patients can end up drugged beyond the capacity to make decisions either by their own illicit use or medications you've prescribed, he noted.

Continuing the alliterative theme, there are a few situations that may commonly pose challenges to capacity evaluation, Dr Philbrick said: urgent, unwilling, unable, undulant, unusual. In urgent situations, physicians can assume that the patient would want the treatment that a reasonable person would prefer. “Implied consent is permitted in such circumstances when no surrogate is available and life or limb is at stake,” said Dr. Philbrick.

Patients who are repeatedly unwilling to participate in a capacity assessment can be assumed to lack capacity to make decisions. “This sometimes surfaces when the patient demands to leave the hospital against medical advice but refuses to discuss their reasons for that decision,” he said. “The challenge in those situations is to earn a hearing long enough to enable the patient to understand that our intent is to give them a chance to show that, in fact, they do understand the relevant facts.”

Some patients may be unable to go through the full-capacity evaluation, due to exhaustion, for example. In that case, “you have to really frontload your highest-yield questions,” said Dr. Philbrick.

As for undulant, patients with capacity can change their mind about medical decisions, but not all the time. “Some patients are so saturated with ambivalence that the decision that they make at 8 is reversed at 9, then reaffirmed at noon, then flipped again by 2 p.m.,” he said. “They ultimately betray the fact that they can't make a decision and stick with it long enough for it to be implemented.”

Finally, there are the situations that are just unusual. For example, Dr. Philbrick once was called to assess a woman who had a pulmonary embolism but was refusing heparin. Her son blocked the door to the room, refusing to let Dr. Philbrick see the patient, because he might reveal to her that she had metastatic breast cancer, which the family had not allowed her to know.

Luckily for hospitalists, that's the kind of dilemma you can leave to a psychiatrist. “For sticky situations, send off for a consult,” advised Dr. Philbrick.