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Historically, “incapacity” was considered primarily a clinical finding, and “incompetency” was considered a legal finding. That distinction is no longer firmly recognized; most state laws now use “incapacity” rather than “incompetency,” although the terms are frequently used interchangeably. The key distinction now is between clinical incapacity and legal incapacity to make a health care decision.
Patients who have clinical and legal capacity have the right to make health care decisions, including refusal of medically necessary care, even if death may result from refusal. Patients who lack either capacity cannot make health care decisions. However, if a patient deemed by a physician to lack clinical capacity expresses a preference, the physician is not entitled to override that preference unless the patient is also found by a court to lack legal capacity to make that decision.
Clinical capacity:
Clinical capacity to make health care decisions is the ability to understand the benefits and risks of the proposed health care, to understand possible alternatives, and to make and communicate a health care decision. Health care practitioners determine this type of capacity clinically and document the determination process. The courts become involved only when the determination itself or another aspect of the process is challenged.
Clinical capacity is specific to a particular health care decision and thus is limited to that decision. The level of clinical capacity needed to make a health care decision depends on the complexity of that decision. Patients with some decrease in capacity, even those with fairly severe cognitive deficits, may still have enough capacity to make simple health care decisions, such as whether to allow a rectal examination or placement of an IV. The same patient may lack the capacity to decide whether to participate in a clinical trial. All feasible attempts should be made to involve the patient in decision making. Ignoring the decision of patients with capacity or accepting the decision of patients without capacity is unethical and risks civil liability. A patient's ability to carry out a decision is also important for physicians to assess. For example, a patient with a broken leg may be able to make decisions but be unable to carry them out. Providing the necessary support to carry out a decision becomes an important goal of care.
Capacity may be intermittent, variable, and affected by the environment. Patients who lack capacity due to intoxication, delirium, coma, severe depression, agitation, or other impairment may regain capacity when their impairment resolves. To obtain consent to treat a patient who lacks clinical capacity, health care practitioners must contact an agent or proxy designated in the patient's durable power of attorney for health care or another legally authorized surrogate (see Medicolegal Issues: Consent and Surrogate Decision Making). If urgent or emergency care is needed (eg, for an unconscious patient after an acute event) and there is no designated surrogate or the surrogate is unavailable, the doctrine of presumed consent applies: Patients are presumed to consent to any necessary treatment.
Legal capacity:
Legal capacity (also called competency) is a legal status; it cannot be determined by health care practitioners. In the US, people aged ≥ 18 yr are automatically considered legally capable of making health care decisions for themselves. Emancipated minors are people below the age of majority (usually 18) who are also considered legally capable. The definition of this group varies by state but generally includes minors who are married, who are in the armed forces, or who have obtained a court decree of emancipation.
People remain legally capable until a judge with appropriate jurisdiction declares them legally incapacitated with respect to some or all areas of functioning. The legal requirements for declaring legal incapacity vary by state. However, substantiation of all of the following is typically required:
If physicians question a person's legal capacity, they may seek a court's determination. Physicians may be asked to testify at or provide documentation for a hearing to determine legal capacity.
When the court declares a person legally incapacitated, it appoints a guardian or conservator to make legally binding decisions for the person in a specific range of matters. Courts can also make decisions about disputed issues (eg, the meaning of a particular instruction in the patient's living will about which parties disagree).
Last full review/revision October 2007 by Charles Sabatino, JD
Content last modified October 2007
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