Understanding Patient Capacity in Clinical Practice

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Foot and ankle surgeons often need to make important, potentially life changing—and frankly, sometimes challenging—recommendations to patients with serious limb pathology. This is perhaps most apparent in situations of limb-threatening infection when a patient might be best served with an urgent major amputation as opposed to a salvage attempt that may not realistically result in a functional lower limb. Understandably, patients in these situations might strenuously desire to avoid amputation and/or any surgical intervention, even though the recommendation seems clear from our side of the bed. As physicians, of course, we have the clinical experience and expertise to make these hard judgment calls, despite professional empathy and compassion for our patients.  
 
Further complicating this and other similar situations of a surgical intervention recommendation are the potential effects of infection, age, and other comorbidities on a patient’s personal medical decision-making ability. In this review, we aim to examine the objective process of informed consent evaluation in podiatric patients.

Differentiating Capacity Versus Competence

The concept of “capacity” forms the basis of informed consent. One may consider a patient to have to have medical decision-making capacity if they can demonstrate the 4 functional abilities of capacity:^1–4
1.    The ability to communicate their wishes;
2.    An understanding of their medical situation;
3.    Appreciation of the consequences of their decision; and
4.    Reasoning in their thought process.
 
One may often see “competence” used incorrectly and interchangeably with the term “capacity.” These are not synonyms and there is a major difference between them. Competence is a legal term. It refers to a person’s global decision-making abilities; ie, finance, wills, property, business, etc. Competence is not a medical determination and is instead evaluated and is judged within the legal court system. Capacity, on the other hand, is a medical term, determined by the treating physician. It refers to a patient’s ability to make decisions about their proposed treatment and/or other aspects relating to their medical care.^1–4
 
One can assess capacity intuitively during every medical encounter with a patient, and its existence is usually readily apparent. A patient's decision-making process must be free from coercion. This means that physicians, families, and/or other agencies cannot apply threats or other irrefutable pressures with the intent to force a patient to reach a particular decision. With that said, it is not coercion for a physician to make a strong treatment recommendation, but it is imperative that physicians state the reasons for that recommendation fairly and do not exaggerate the facts.^1–4
 
It is also very important to note that one determines capacity on a situation-by-situation basis and it can change over time. Capacity refers to the specific condition or current situation; it is not an enduring status. A patient might have the capacity to make certain decisions at certain times, but not other decisions at other times. Given the evolving nature of capacity, it is imperative that physicians accurately and regularly evaluate a patient's medical decision-making capacity over time.
 
For example, an inpatient at 8 o’clock in the morning might have capacity to refuse daily blood work for planned laboratory analysis. Here the risk-to-benefit ratio of patient refusal is low, and therefore there is a high standard to declare that the patient does not have capacity to make this decision. But the same patient might not have capacity to refuse emergent surgery at 3 o’clock in the afternoon of the same day. Here the risk-to-benefit ratio of refusal is high, and therefore there is a lower standard to declare that a patient does not have capacity to make this decision.

Risk Factors for Impaired Capacity

It is important for health care providers to identify patient-specific risk factors for impaired medical decision-making capacity, as well as potentially reversible causes of incapacity. Risk factors for incapacity include age less than 18 years, age greater than 85 years, chronic neurologic conditions, chronic psychiatric conditions, low education level, and significant cultural or language barriers. If multiple risk factors are present, one might consider consulting psychology for further assistance with determining intact versus impaired capacity. However, even with appropriate consultation, the treating physician should make the final determination of capacity by taking into consideration the entire clinical picture. Reversible causes of incapacity include infection, illicit drug usage, hypoxia, metabolic derangements, delirium, and critical illness.^2–3
 
Another consideration is the patient’s personal, cultural, and religious values. These often guide the decision-making process. For example, patient who is a Jehovah’s Witness might refuse treatment with blood products given their religious values, but can still display intact capacity if they are able to communicate the risks of refusing these products. It is important to remember that capacity deals more with the process of decision-making rather than the actual choice made.

Conducting Directed Clinical Interviews

Conduct a directed clinical interview evaluation of a patient's capacity if there is a reason to question a patient's decision-making ability. This may include changes in mental status, refusal of clearly beneficial recommended treatment options, risk factors for impaired decision-making, and/or readily agreeing to invasive or risky procedures without adequately considering the risk or benefits.
 

The directed clinical interview starts with an assessment of the patient’s ability to effectively communicate their wishes and for the patient to indicate their preferred treatment choice. This represents the first pillar of capacity assessment (Table 1). A health care provider must ensure there are no communication barriers impairing the patient's ability to understand information and communicate with the physician. This includes hearing/visual impairments, language barriers, and dysphagia. If present, one must ensure that the proper interpretation services, glasses, and/or hearing aids are available. Examples of questions that one might use to evaluate the patient’s ability to communicate a choice include the following:

• “We have discussed several choices. What do you think would be the best option for you?”
• “Can you tell me your decision about the recommendation for IV antibiotics?”

The second pillar of capacity is to evaluate a patient’s understanding of their current medical situation and if the patient understands the information being communicated by their physician. The provider must explain the information pertaining to the medical condition clearly to the patient as well as explain all possible treatment choices. The provider should not assume the patient understands and should ask for clarification from the patient. This might include asking the patient to re-state what the provider said in their own wording. One should take into account the patient's preferred language and education level during this conversation. Examples of a questions that a provider can use to evaluate the patient’s understanding of their condition include the following:

• “What is your understanding of your condition?”
• “What different treatment options have been recommended to you?” 

The third pillar of capacity is to evaluate the patient’s appreciation of the consequences of their decision. At this point, the patient should describe their views of their medical condition, the proposed treatment, likely outcomes based on the treatment that the patient chooses, and the specific risks of refusing the recommended treatment. Examples of questions that a provider can use to evaluate this include the following:

• “Can you tell me why surgery is being recommended to you?”
• “What are the risks of not receiving or completing the recommended [specific treatment] for you?”

The last pillar in the assessment of capacity includes evaluating reasoning of the patient’s thought process. During this assessment, the patient should compare different treatment options and consequences, and offer their reasons for their selection of options. Ultimately, the patient should demonstrate the reasoning why they made a particular choice. When evaluating a patient's responses to these questions, keep in mind that patients do not have to make the “right” choice; they need only to demonstrate a rational examination of pertinent information in arriving at their decision. Examples of questions that a provider can use to evaluate this include the following:

• “What factors/issues are most important to you in deciding your treatment?”
• “What are you thinking about as you consider your decision?”

Dr. Joseph is a resident of the Temple University Hospital Podiatric Surgical Residency Program in Philadelphia. 
 
Dr. Fils-Aime is a resident of the Temple University Hospital Podiatric Surgical Residency Program in Philadelphia.
 
Dr. Meyr is a Professor in the Department of Surgery at Temple University School of Podiatric Medicine in Philadelphia.
 
References
1.     Etchells E, Darzins P, Silberfeld M, et al. Assessment of patient capacity to consent to treatment. J Gen Intern Med. 1999;14(1):27-34. doi:10.1046/j.1525-1497.1999.00277.x
2.     Barstow C, Shahan B, Roberts M. Evaluating Medical Decision-Making Capacity in Practice. Am Fam Physician. 2018;98(1):40-46.
3.    Karlawish J. Assessment of decision-making capacity in adults. UpToDate. Accessed January 9, 2024.
4.     Kontos N, Querques J, Freudenreich O. Capable of more: some underemphasized aspects of capacity assessment. Psychosomatics. 2015;56(3):217-226. doi:10.1016/j.psym.2014.11.004