Skip to main content Accessibility help
×
×
Home

A pragmatist's guide to the assessment of decision-making capacity

  • Rocksheng Zhong (a1), Dominic A. Sisti (a2) and Jason H. Karlawish (a3)
Summary

Choice, understanding, appreciation and reasoning compose the standard model of decision-making capacity. Difficulties in determining capacity can arise when patients exhibit partial impairment. We suggest that a pragmatic approach, focusing on how capacity status affects the ultimate decision to override the patient's wishes, can help evaluators resolve difficult cases.

Declaration of interest

None.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      A pragmatist's guide to the assessment of decision-making capacity
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      A pragmatist's guide to the assessment of decision-making capacity
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      A pragmatist's guide to the assessment of decision-making capacity
      Available formats
      ×
Copyright
Corresponding author
Correspondence: Rocksheng Zhong, 3900 Montclair Road, Floor 1 #131272, Birmingham, AL 35213, USA. Email: rocksheng.zhong@yale.edu
References
Hide All
1Grisso, T, Appelbaum, PS. Assessing Competence to Consent to Treatment: A Guide For Physicians and Other Health Professionals. Oxford University Press, 1998.
2Appelbaum, PS. Assessment of patients’ competence to consent to treatment. N Engl J Med 2007; 357(18): 1834–40.
3Moye, J, Marson, DC. Assessment of decision-making capacity in older adults: An emerging area of practice and research. J Gerontol B Psychol Sci Soc Sci 2007; 62(1): P311.
4Umapathy, C, Ramchandani, D, Lamdan, RM, Kishel, LA, Schindler, BA. Competency evaluations on the consultation-liaison service. Some overt and covert aspects. Psychosomatics 1999; 40(1): 2833.
5Kim, SYH. Evaluation of Capacity to Consent to Treatment and Research. Oxford University Press, 2010.
6Kontos, N, Querques, J, Freudenreich, O. Capable of more: some underemphasized aspects of capacity assessment. Psychosomatics 2015; 56(3): 217–26.10.1016/j.psym.2014.11.004
7Siegel, AM, Bleier, HR. The role of negotiation in consultation-liaison psychiatry. Psychosomatics 2017; 58(2): 187–90.10.1016/j.psym.2016.10.001
8Evans, D, Wood, J, Lambert, L. Patient injury and physical restraint devices: a systematic review. J Adv Nurs 2003; 41(3): 274–82.
9Pellegrino, ED. The anatomy of clinical judgments. In Clinical Judgment: A Critical Appraisal (eds Engelhardt, HT, Spicker, SF, Towers, B): 169–94: Springer, 1979.
10Henry, SG. Recognizing tacit knowledge in medical epistemology. Theor Med Bioeth 2006; 27(3): 187213.10.1007/s11017-006-9005-x
Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

The British Journal of Psychiatry
  • ISSN: 0007-1250
  • EISSN: 1472-1465
  • URL: /core/journals/the-british-journal-of-psychiatry
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Keywords

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed

A pragmatist's guide to the assessment of decision-making capacity

  • Rocksheng Zhong (a1), Dominic A. Sisti (a2) and Jason H. Karlawish (a3)
Submit a response

eLetters

The test for decision-making capacity in common law countries is not the test outlined by Zhong et al.

Christopher James Ryan, Clinical Associate Professor and Consultation-Liaision Psychiatrist, University of Sydney and Westmead Hospital
16 April 2019

In the United Kingdom and common law countries the legal test for decision-making capacity is not the test outlined by Zhong et al. (1). That test is derived from literature that emanates from the United States.

In common law jurisdictions, adults are presumed to have decision-making capacity, but this presumption can be rebutted for particular decisions if the person suffers from some impairment or disturbance of mental functioning that renders him or her either: unable to comprehend and retain the information which is material to the decision, or; unable to use and weigh the information as part of the process of making the decision (2). This common law test was codified into the Mental Capacity Act 2005 (UK) s 3(1).

Contrary to Zhong et al.’s rendering, the common law test does not incorporate an ability to “appreciate” information. Indeed “appreciation” was specifically rejected by the UK Law Reform Commission (3). To the extent that appreciation might be relevant it should be considered as part of the ability comprehend. The “use and weigh” arm of the common law test does not require that information be “rationally manipulate[d]” (1). A competent person must have their decision respected even if his or her reasons are “irrational” (2,4). Choices need not be “consistent” over time, though if a person were to constantly change his or her mind that might be reason to overturn the usual presumption of decision-making capacity (2,5). The bar for decisional ability does not rise as the risk of harm or complexity of the decision rises – it remains as described in the second paragraph above. However: as the risk increases, the more we should be concerned that the person has capacity, and; as the complexity increases, the more difficult it will be to attain the understanding of the relevant information required to demonstrate capacity (5).

It is also worth highlighting that although the United States has not ratified the United Nations Convention on the Rights of Persons with Disabilities, almost all other countries, including the United Kingdom, have. Article 12 of the Convention places a duty on those who are assessing capacity to assist the person as much as possible to attain that capacity. This changes the process from one of objectively assessing the patient’s abilities to one which determines whether the assessor can assist the patient to achieve those abilities.

1. Zhong, R., Sisti, D. A. & Karlawish, J. H. (2019) A pragmatist's guide to the assessment of decision-making capacity. Br J Psychiatry, 214, 183-185.

2. Re MB (Medical Treatment) [1997] EWCA Civ 3093.

3. Law Reform Commission (UK) (1995) Report No 231: Report on Mental Incapacity. London: HMSO.

4. Ryan, C., Szmukler, G. & Large, M. (2016) Kings College Hospital Trust v C: using and weighing information to assess capacity. Lancet Psychiatry, 3, 917-919.

5. Ryan, C. J., Callaghan, S. & Peisah, C. (2015) The capacity to refuse psychiatric treatment – a guide to the law for clinicians and tribunal members. Australian & New Zealand Journal of Psychiatry, 49, 324-333.

... More

Conflict of interest: From time to time CJR provides paid expert opinion in coroner's and negligence matters where the assessment of decision-making capacity is at issue.

Write a reply

×

Reply to: Submit a response


Your details


Conflicting interests

Do you have any conflicting interests? *