Can Any Doctor Assess Decisional Capacity?

Decisional CapacityThe title of this post is deliberately provocative and ambiguous. On the one hand the title (a question) implies that a specialist (usually a psychiatrist) should conduct most decisional capacity assessments (DCAs). On the other hand, one wonders if any doctor, regardless of specialty, can get the job done right.

The question arises almost every day in a psychiatric consultant’s career. It can be annoying because, there is no specific psychiatric skill underlying the DCA. When a patient refuses medical treatment, or conversely agrees to a treatment which could cause more harm than benefit (a circumstance many doctors don’t consider since they seem prone to accept such a decision, even from patients who clearly don’t have DCA).Decisional Incapacity

I tweeted a couple of articles which bear on this issue:

Considering the first article by Tunzi and Spike, I suspect there would be major legal and logistical difficulties in forcing each of the three patients to undergo medical procedures for which they don’t give consent, as recommended by ethics consultants [1]. However, in many places, a doctor can document the common law doctrine of implied consent in the context of delivering treatment in a medical emergency, saying that a patient would have consented to life-saving treatment under ordinary circumstances. Not all DCA difficulties are solvable by calling the ethics consultants. You should always consult your organization’s attorney staff as well.

To be sure, psychiatrists are often consulted for complicated cases in which a primary neuropsychiatric illness might be substantially interfering with DCA. But carrying the diagnosis of a major mental illness by itself doesn’t imply the loss of decisional capacity for each and every medical decision. And DCA should be applicable to a specific task, in order to make it a reasonable and manageable job in the real world. A DCA is not the same thing as a competency ruling; the latter is made by the courts, but the courts may use a DCA done by a physician (technically any physician, not just a psychiatrist) to determine competency.

No psychiatric training is necessary to address the essential elements of decisional capacity as outlined by Tunzi and Spike:

  1. The ability to understand information about one’s condition generally
  2. The ability to appreciate how that information applies to one’s own situation specifically
  3. The ability to reason with that information, weighing the benefits and burdens of treatment options in order to make a choice
  4. The ability to express that choice clearly once made

As I pointed out earlier, sometimes a psychiatrist can help sort out whether a neuropsychiatric illness is substantially interfering with decisional capacity. But in many of those cases, an astute internist or surgeon could cope with it. The best example is delirium or other acute brain injury that results in gross cognitive disorganization. One could could ask whether, in a few of these situations, the defense mechanism of psychotic denial could be operative–but it’s usually a stretch. In either case, decisional capacity is disrupted and a surrogate decision maker will need to be assigned, at least in the short term.

The really difficult questions are what to do after a DCA reveals that a patient lacks decisional capacity for a specific task. It can take considerable time to assign a legal guardian. There can be great difficulty in containing a patient who wants to leave the hospital against medical advice and the situation could become dangerous. Then Mossman’s thoughts on why psychiatrists are often consulted make sense [2]:

Consulting a psychiatrist in such circumstances makes sense, for at least 4 reasons:

  • Although assessment of decision-making isn’t the special province of psychiatry, psychiatrists often have more experience assessing the capacity of persons whose thinking seems impaired.
  • Psychiatrists also have more experience in detecting subtle indications of mental disorders (eg, mild dementia, depression, psychosis) that can compromise decision-making capacity.
  • A nonpsychiatrist may believe that a patient is making a competent refusal but still wants a psychiatrist’s perspective to better understand the patient’s reasoning or to confirm the initial belief.
  • Getting an independent opinion is a prudent way to make sure one’s emotions are not adversely influencing a critical judgment about a patient’s treatment.

In cases where there is no diagnosable neuropsychiatric illness interfering with decisional capacity, then the patient’s decision must be respected even if doctors disagree with it. But if the patient might come to harm because of his decision, then detaining him would be safer and probably more defensible in court should it come to that. On the other hand, we can’t usually detain them involuntarily on locked psychiatric units for the reasons Mossman outlines.

  1. Once a psychiatric hold has been executed, the person who is subject to detention must be transferred to an appropriate facility within a specified period (usually 24 hours) for further evaluation and care. In this context, “appropriate facility” means a state-approved psychiatric treatment setting. A hospital’s medical or surgical unit usually would not qualify.
  2. The lawful use of a psychiatric hold is to declare that someone needs involuntary psychiatric examination for dangerousness arising “as a result of mental illness”—not for danger from a nonpsychiatric medical problem. Some civil commitment statutes specify that persons who have serious nonpsychiatric illness but no mental health problems that satisfy civil commitment criteria are to be offered voluntary treatment only.
  3. A psychiatric hold only authorizes short-term detention. It does not allow forcing what patients such as Mr. J need: medical or surgical treatment. A psychiatric hold would not solve the problem that Mr. J’s doctors are facing.
  4. Doctors who execute psychiatric holds in good faith—sincerely believing a patient meets the legal criteria—enjoy statutory immunity from later accusations of malpractice or false imprisonment. Using civil commitment mechanisms when one does not actually believe those mechanisms apply might void this immunity.

What puzzles me sometimes is how doctors decide they need a psychiatrist to help with DCA.


  1. Tunzi, M., MD, and J. P. Spike, PhD (2015). Assessing Capacity in Psychiatric Patients With Acute Medical Illness Who Refuse Care. Prim Care Companion CNS Disord. 16. Date accessed 9/27/2015.
  2. Mossman, D., MD (2013) Psychiatric ‘holds’ for nonpsychiatric patients. Current Psychiatry 12 (3). Date accessed 9/27/2015.


  1. Katherine Gordy Levine says:

    Pinned it. Thank you for all you do. Katherine

    Stay strong, practice kindness, laugh and play, be with beauty, live in the now and always remember what matters,

    Katherine Gordy Levine

    Visit the EFTI Store or Emotional Fitness Training, Inc. to learn more about improving your Emotional Intelligence and finding your way to the good life.

    “There’s a crack in everything, that’s what lets the light in.” Thank you Leonard Cohen

    Liked by 1 person

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