Does my patient have Capacity?

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August 14, 2018 by Agnes Usoro

One of the most difficult tasks in medicine is determining patient capacity. The concept usually comes up when a patient refuses treatment that a physician deems appropriate or necessary. It is important to recognize that patients have the right to refuse treatment so as long as their reasoning is rationale and not influenced by a medical, psychiatric or cognitive disorder. Capacity assessments can become legal, moral and ethical dilemmas and need to be tackled as objectively as possible. I’ll try to simplify the concept and provide a sample questionnaire to use as a template during your next capacity assessment.

What is Capacity?

Capacity is a medical term, whereas Competence is a legal term. Capacity refers to the psychological assessment of a patient’s ability to make an informed and rational decision about  their medical care. If a patient is determined to lack capacity, they are required to have a surrogate make decisions on their behalf. In the hospital, the attending physician usually serves as the de facto surrogate if a legal power of attorney is not available.

How is Capacity determined?

Capacity is determined by performing an assessment on a patient and determining if the patient understands:

  • Their current medical condition?
  • The natural course of their current medication condition?
  • The proposed treatment and/or intervention?
  • The risks and potential benefit of the proposed treatment and/or intervention?
  • What is likely to happen if the proposed treatment and/or intervention is refused?
  • Whether there are any viable alternatives to the proposed treatment and/or intervention?
  • The potential risks and benefits of the alternative treatments?

What is required for documentation of Capacity?

This varies by state, but in general, there are (4) documentation requirements needed during the capacity assessment. If a patient demonstrates each requirement, it strengthens the argument that there lacks an acute medical, psychiatric, cognitive, or memory loss pathology that otherwise would interfere with their ability to make an informed and rational decision.

  1. Understanding – The patient must be able to comprehend what he or she is being told about the proposed treatment and/or intervention.
  2. Appreciation – The patient must be able to state the implications of their decision and that they can live with the consequences of their decision.
  3. Reasoning – The patient must be able to utilize rational thought processes to manipulate the information being provided to them in order to make an informed decision. If there is any concern for patient reasoning, one can employ a formal mental status exam, such as the Folstein Mini-Mental Status Exam, to strengthen their assessment of a patient’s reasoning.
  4. Communication – In addition to being alert and oriented, the patient must be able to effectively communicate their preference.

Guided Capacity Clinical Interview

The following outline has been adopted from the American Academy of Family Physicians

    • What is your understanding of your condition?
    • What are the options for your situation?
    • What is your understanding of the benefits of treatment?
    • What are the odds that the treatment will work for you?
    • What are the risks of treatment?
    • What are the odds that you may have a side effect or bad outcome?
    • What is your understanding of what will happen if nothing is done?
    • What do you believe about your medical condition?
    • What has your doctor recommended for you (patient must identify the specific treatment or diagnostic test)?
    • Do you think it (specific treatment/test) is the best option for you? Why or why not?
    • What do you think will happen to you if you accept this treatment/test?
    • What do you think will happen to you if you do NOT accept this treatment/test?
    • What factors or issues are most important to you when deciding about your treatment?
    • What are you thinking about when you consider your decision?
    • How are you balancing the pluses and minuses of the treatments?
    • Do you trust your doctor? Why or why not?
    • Consider formal mental status exam
    • Please repeat and summarize our conversation up to this point including the various choices discussed.
    • Based on the information discussed about your condition, what do you want to do? What is the best medical option for you right now?

Ultimately, if there is concern regarding a patient’s capacity, consultation with a capacity specialist such as a psychiatrist or an ethics council can help to supplement your capacity exam.



  1. Leo, R. Competency and the capacity to make treatment decisions: A primer for primary care physicians. Prim Care Companion J Clin Psychiatry. 1999. Oct; 1(5): 131-141
  2. Tunzi, M. Can the patient decide? Evaluating patient capacity in practice. Am Fam Physician. 2001. Jul 15; 64(2): 299-308. Obtained from:

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