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:

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:

Three Key Patient Abilities

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

Special Cases

How Not to Determine Capacity

Capacity vs. Competence

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