Capacity Determination

Capacity determination is a term used in New York State Public Health Law. It means the attending physician, nurse practitioner, or, beginning June 17, 2020,  physician assistant, has determined in writing to a reasonable degree of medical certainty that the patient lacks capacity to understand and appreciate the nature and consequences of a Do Not Resuscitate (DNR) and Life-Sustaining Treatment orders, including the benefits and burdens of, and alternatives to, such orders, and to reach an informed decision regarding the orders.

Defining Capacity

Capacity is independent of all diagnoses including dementia and mental illness and means a person:

• Understands the information presented and how it applies to them
• Is able to verbalize the alternative treatments or suggestions that the physician or other trained clinicians discussed with them
• Makes a decision that the person can explain and is generally consistent with lifelong values
• Is firm in the decision and doesn’t change their mind

Simply, capacity is the ability to take in information, understand what it means and make an informed decision using the information.

Capacity Requirements

Capacity requires a cluster of mental skills people use in everyday life and includes memory, logic, the ability to calculate, “flexibility” to turn attention from one task to another and executive functions.

Executive functions are the thinking processes that organize relatively simple ideas, movements or actions into behaviors that help achieve a goal.  Without executive functions, behaviors important for independent living can be expected to break down into their component parts.

Capacity helps us to function independently.

Capacity Depends on the Task

Capacity is task-specific.  Clinicians determine a patient’s capacity to make decisions regarding medical care and treatment, managing money, writing a will, continuing to drive, possessing firearms etc.  The overarching principle in capacity determination is the assessment of the patient’s ability to understand the consequences of a decision.

How to Determine Capacity

Capacity determination regarding a patient’s decisions regarding the medical care and treatment is often difficult to establish.  There is no standard “tool.”  Capacity assessment is a complex process and is not simply determined by the Mini-Mental Status Exam (MMSE).

Capacity assessments should involve:

• A detailed history from client
  • Organize time relationships
  • Recall facts
  • Reason abstractly
  • Assess for depression
• Collateral history from family and close friends
• Focused physical examination
• Cognitive, function and mood screen
• Appropriate tests to exclude reversible conditions

Three Key Patient Abilities

Capacity determination involves assessment of three key patient abilities and consistency in the decision:

• Ability to understand relevant information about his or her condition and the probable outcomes of the disease and of various potential interventions and its meaning in terms of the disease process; proposed therapy and alternative therapies. Advantages, adverse effects and complications of each therapy; and possible course of the disease without intervention
• Ability to make an informed decision using the information based on his or her beliefs and values and understands the consequences of the decision
• Ability to communicate a decision

Special Cases

• Mental Illness, like schizophrenia or bipolar disorder: request a psychiatric consultation to assess for capacity.  Mental illness does not include dementia.
• Developmental Disability/Intellectual Disability: capacity determination should include an opinion from a clinician with special experience or training in developmental disabilities

How Not to Determine Capacity

• Ask someone else
• Just have a conversation
• Simply use expressions of a preference
• Apply a cutoff of the MMSE score
• Attribute abnormal answers as a lifestyle choice without evidence
• Disregard individual habits or standards of behavior
• Only use risky behavior as a marker

Capacity vs. Competence

• A physician or nurse practitioner assesses the patient and determines capacity.  In some instances, a qualified and trained health care professional can provide a concurring opinion. Beginning June 17, 2020, physician assistants will have the legal ability to assess patients’ capacity.
• Competency is a determined by the courts.