Capacity to Provide Informed Consent: Is a Patient’s Competence the Issue?

The terms “capacity” and “competence” are often used interchangeably, but there are important differences. The term “competence” refers to a court’s determination of a patient’s legal status. That is, “competence” refers to a judge’s conclusion, based on facts submitted by a physician, that a patient is legally able to make a decision. The term “capacity” describes the individual’s mental ability to understand the nature and effect of a decision. Physicians supply the facts necessary to determine “capacity.”

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Statement of the Dilemma
Physicians regularly confront difficult legal issues that arise within the physician-patient relationship.  Few are more problematic than informed consent, such as for end-of-life decisions, that depend upon a patient’s capacity to consent. A legal definition of the term “competence” provides little guidance for a clinician faced with a patient whose faculties may be impaired.

  • What standards should apply to a determination of capacity to consent?
  • Should the physician follow an advance directive executed by a patient at a time when his or her mental faculties may have been impaired?
  • What level of impairment will preclude the patient’s capacity to provide an informed consent?
  • When should a court determine the patient’s competence?

Generally, a court’s determination of competence is not required if the physician can adequately assess the patient’s capacity (i.e., mental functions). The physician may inquire, after explaining recommended care, and note the patient’s response. Based on a patient’s response, is the physician confident that the patient understands? If the patient appears to be confused or not responsive, additional questions probably are in order.

Where court intervention appears necessary, a petition under Probate Code § 3201 may be filed in Superior Court by the patient, by any family member, by the patient’s physician, or by other interested persons. The petition should be based on the physician’s findings that suggest a deficit in alertness and attention, inability to process information, agitation or distraction, irrational thought processes, or inability to modulate mood and affect.

The Legal Standard
A competent adult may make his or her own treatment decisions, including refusal of life-sustaining treatment.  A competent adult understands the nature and seriousness of the medical condition, the purpose of the recommended medical treatment, alternatives, and the risks and benefits of consenting to or refusing the recommended treatment. A competent adult is able to answer questions about his or her condition or recommended treatment and demonstrates a rational thought process. A patient should be presumed competent unless there are indications to the contrary.

The Physician’s Role
While no specific test or measurement is required, the attending physician is responsible for determining capacity to make a decision. The patient’s behavior, clinical condition, and interactions with family and friends all are relevant. A psychiatric evaluation is not necessary, but the physician may consider one in close cases. The substance of discussions with the patient and family, consultations, and other relevant information should be recorded in the chart. The physician’s conclusion regarding the patient’s mental capacity, or lack thereof, also must be documented in the chart.

A competent adult must be able to process sufficient information in order to make an intelligent decision about recommended care, including withholding or withdrawing life-sustaining treatment. The physician must disclose all “material” information, i.e., information that would be regarded as necessary or helpful by a reasonable person in the same or similar situation. Such disclosure includes a description of the recommended measures, potential adverse risks, complications, and expected benefits.  Also, the physician should explain the likelihood of success and treatment alternatives, including the option of no treatment. Generally, it is not necessary to disclose minor risks or consequences that are remote or unlikely, although possible. The substance of the dialogue between physician and patient must be documented in the chart, as indirect evidence that informed consent was obtained.

Documentation Is Vital
Determining capacity to provide an informed consent is a threshold requirement for end-of-life decision-making. As with standard of care issues, a retrospective review of the physician’s conduct and exercise of professional judgment often will focus on the written rrecord, which carries more weight than the physician’s recollection of past events. Proper documentation of discussions and findings regarding a patient’s mental faculties and capacity to  give informed consent and to make end-of-life decisions is the surest way to avoid or minimize exposure to malpractice liability.


Dan Groszkruger is a healthcare attorney, a former hospital executive, risk manager, and compliance officer. Dona Constantine is a Senior Risk Management and Patient  Safety Specialist for the Cooperative of American Physicians. Questions or comments related to this article should be directed to