Capacity to make decisions about health care
‘Competence’ is the legal term that relates to a patient having capacity to make decisions. A person with decision-making capacity must be able to understand the possible options and likely outcomes of a decision and be able to provide a rationale for decisions they make. A patient’s capacity to make decisions is specific to the issue at hand at that time. Healthcare professionals should assume that an adult has capacity to make decisions about their own health care unless there is evidence to indicate otherwise.
Medical assessment of capacity should take place as close as possible to the time at which the decision is required. Document whether the patient can:
- understand the proposed treatment options and the likely outcomes
- retain the information to the extent necessary to make the decision
- express their preferred option
- explain the reason for their choice in a clear and consistent fashion.
This information may be used to decide whether the patient has capacity (from a legal perspective) to make particular decisions. When there is uncertainty, consider consulting with a specialist practitioner (eg palliative care specialist, geriatrician). If necessary, escalate to a clinical ethics service for guidance.
Decision-making capacity may fluctuate or diminish as a patient’s condition deteriorates, and may be lost as death approaches. When a patient has diminished capacity, use supported decision-making to enable the patient to participate in the decision-making process. If supported decision-making is not possible, a substitute decision-maker may need to be legally appointed.
See the End of Life Law in Australia website for detailed discussion of capacity, including information about the law in each state and territory.
For considerations in patients with developmental disability, see Consent, capacity and decision-making for people with developmental disability.
For considerations in patients with a psychiatric disorder, see Informed consent and shared decision-making for a person with a psychiatric disorder.