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Determining Decisional Capacity

 Michael Safa, MD
A 62-year-old man with a history of DM, HTN, and HL, and previous myocardial infarction presents to your ED with a complaint of 3 hours of chest pain with onset during activity and radiating to his left shoulder. On arrival to the ED, his pain is improved, he appears comfortable, and his vital signs are normal. His ECG demonstrates new t-wave inversions in the inferior leads and his initial troponin is mildly elevated. You share with him the results and express that you would like to admit him to the hospital for serial troponins, cardiology consultation, and likely cardiac catheterization. At that time he reports that he would like to go home and follow up with his primary care doctor in the next day or two. Given the ECG changes, elevated troponin, and clinical history, you feel he should be admitted to the hospital but he is adamant about going home. He acknowledges your concern that his pain could be the sign of a heart attack or impending heart attack. He reports that he came in to find out if he needed a stent “straight away” from the ED like he has in the past. He otherwise provides multiple reasons for wanting to go home, including a dog to take care of and a desire to sleep in his own bed. You begin to wonder if your patient understands his situation…

As physicians we are responsible for making recommendations to our patients based upon our knowledge as health care professionals. In the ED we routinely recommend specific treatments, various tests, and admissions to the hospital versus discharge home. While we often encounter patients who choose not to adopt these recommendations, there are times when this refusal becomes very uncomfortable and we struggle with balancing our desire to help patients with respecting their autonomy.

A cornerstone of respect for patient autonomy is informed consent.

Informed consent must include the following (1):

  • Delivery of adequate information regarding the nature and purpose of proposed treatments. This must also include a discussion of risks, benefits, and alternatives to the proposed therapy, including choosing no treatment or testing at all. 
  • Freedom from coercion.
  • The patient possessing capacity to make medical decisions.

The discomfort that we feel when patients choose not to follow our recommendations often peaks when patients leave the ED against medical advice. It is in these moments where we must question the ability of our patients to make decisions—i.e. whether or not they possess decisional capacity.

Patients with decisional capacity must demonstrate all of the following (2,3): 

  • Ability to understand information relevant to treatment decisions.
  • Ability to appreciate the significance of the information.
  • Ability to weigh treatment options and demonstrate reasoning.
  • Ability to express a choice.

The following steps, followed during patient interviewing and carefully documented will help in determining decisional capacity:

  1. Identify and address barriers to communication (e.g. hearing impairment, visual impairment, need for interpreter).
  2. Ensure communication of treatment and evaluation options—including alternatives, potential side effects, and consequences. 
  3. Ask appropriate, open-ended questions to determine that all four criteria of DECISIONAL CAPACITY are satisfied. Some examples may include: 
    1.  Understanding – What brought you to the ED today? What is the testing or treatment we would like to provide? 
    2. Appreciation – What could happen if we do not give you this treatment or perform this test?
    3. Reasoning – Why are you choosing to have or not have a test we have recommended performed? 
    4. Expressing a choice – May I provide you the treatment that I am recommending?

Any physician responsible for caring for a patient can determine if a patient possesses capacity. A standardized approach that includes the documentation of the four criteria for capacity offers a reliable, reproducible tool. It is also worth noting that, while reasoning is an essential component of determining capacity, a reason that the physician perceives as “good” is not required. Patients with capacity do have the ability and the right to make a “bad” choice. Psychiatric consultation may be helpful in complex cases or in cases in which mental illness is present (2).

Ultimately, mitigating legal risk is certainly a concern for many physicians when patients do not follow our recommendations or elect to leave the ED against medical advice. However, valuing and respecting our patients’ right to autonomy makes proficiency in evaluating decisional capacity a necessary part of emergency medicine practice.

  1. Sessums LL, Zembrzuska H, Jackson JL. Does This Patient Have Medical Decision-Making Capacity? JAMA. 2011;306(4):420-427.
  2. Appelbaum P. Assessment of Patients’ Competence to Consent to Treatment. N Engl J Med. 2007;357:1834-40.
  3. Dunn LB, Nowrangi MA, Palmer BW, Jest DP, Saks ER. Assessing Decisional Capacity for Clinical Research or Treatment: A Review of Instrument. Am J Psychiatry. 2006;163:1323-34.



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