Our patient’s ability to understand and respond to a specific question at a given time determines his mental capacity. In California, the courts do not decide on medical capacity. State law presumes that a patient has capacity to make medical decisions unless a physician demonstrates otherwise.
One’s level of capacity will depend on the questions that are asked. For example, a mentally challenged patient could have the capacity to appoint a surrogate decision-maker, but not to be able to decide on complex therapy.
There are ways to maximize the patient’s facility to respond to the questions asked. Medical personnel could do well to take into account the time of day or night the patient is more awake. It is also wise to note the need to regulate external impediments such as noise or light and to adjust the timing of mind-numbing medications. Even slight improvement of mental status may allow the patient to express his own wishes about the extent of his medical care.
Both the physician and family can assess the following areas in determining a patient’s capacity for informed consent by noticing if the patient:
- Understands what is wrong and what the proposed treatments are.
- Appreciates the benefits and risks of different proposed treatments or failure to treat.
- Discerns the medical information and relates this information to his personal values.
- Expresses his wishes and is able to communicate them.
It is difficult for an extremely ill patient to think in complex detail when asked if he has any questions. His response may simply be:
- Am I going to die?
- How long do I have left to live?
- Can you cure me?
- Can you take away my pain?
When we hear these questions we have an opportunity to answer them with simplicity and truth. This can lead to more in depth discussions regarding the patient’s wishes and stand a better chance of directing his care. I find even if a patient enters the hospital alert and oriented, he may develop confusion as his illness deteriorates. This is more reason to discuss the issues early upon admission.
In circumstances where the doctor feels she lacks expertise in determining capacity, she can obtain a psychological consultation. In rare situations, the courts can step in to determine a patient’s global competency or incompetency. However, because this process is both costly and lengthy, the legal profession prefers physicians to handle capacity issues in the hospital. In difficult cases, the physician or family may want to ask the hospital’s bioethics committee for advice.
The medical record is a living document with copious documentation. Physicians often ignore previous hospitalization records because they are difficult to locate, and when found, are often voluminous.
If our patient does not have capacity and there are no friends for family available to speak for him, it is helpful to search prior medical records for help in discovering what our patient might want done, if he could speak for himself. We are able to utilize the retrospectoscope when we review these records. This apparatus is an ethereal medical instrument that we all use in medicine, but cannot find in our little black bag. We find it packaged with reflection upon our own experience and up to date knowledge. The retro portion allows us to look back on the patient’s past experiences. This allows us to discover easily missed clues and enlighten the direction of treatment.
Unfortunately, the plethora of routine data buried in the chart may obscure important findings. I hope that future versions of the electronic medical record will speak to this problem and allow for easy retrieval of information to help streamline future care of our patients.
For insights and case studies on how to improve doctor-patient interaction, I invite you to read: “We Can, but Should We? One physician’s reflections on end of life ethical dilemmas.” Information on this book can be found at: