Legal & Regulatory

Decisional Capacity? Perils and Solutions – A Risk Manager’s Perspective

Scenario: Patient Joe Smith arrives to the Emergency Department for treatment, unaccompanied and from initial interaction appears alert, oriented with reasonable capacity. He receives the treatment needed for his minor respiratory condition and is cleared for discharge home. The healthcare team is unaware that located in the electronic medical record, Mr. Smith has been deemed incompetent by the state and has a court appointed guardian. Did Mr. Smith arrive to his location safely after discharge? Will this patient follow up with the treatment plan? How will the guardian be aware of this visit and the care rendered? What legal implications does this scenario impose for healthcare organizations each and every day?

Whether in the acute care or outpatient setting, as healthcare professionals, we engage our patients to make informed decisions regarding their care and treatment. The ability to make these decisions hinges on the patient’s ability to receive information from the provider; analyze this information through weighing the risk, benefits and alternatives to treatment; and collectively make an informed decision whether to proceed with the treatment plan (Glezer et al., 2011, p. 521). However, this ability relies heavily on the patient’s state of capacity and competencies, which are factors needed in order to make appropriate healthcare decisions. When a patient’s capacity is not carefully evaluated prior to giving consent for treatment or competency status is unknown, these factors may create patient safety issues and may lead to legal and/or regulatory implications for organizations.

Patients are held under the assumption that they maintain decisional capacity until otherwise proven (Seeums, Zembrzuska, & Jackson, 2011, p. 420). It is important to recognize that capacity may wax and wane along the continuum of care and treatment. Therefore, it is imperative that clinicians identify when a patient lacks the ability to make informed decisions. A patient’s ability to make medical decisions is an important component to analyze prior to allowing a patient to provide their own consent. As state laws do vary, it is vital for the healthcare team to recognize who can determine if a patient lacks or possesses capacity. In most states, capacity is determined by physicians and this determination is based on four tenets:

  • First, the patient is able to communicate clearly their wishes and choices.
  • Second, the individual is able to process the information relayed, which does include understanding the risks, benefits and alternatives of the decision being made.
  • Third, the patient must have an understanding of the gravity of the situation and be fully aware of the consequences.
  • Finally, the individual must be able to take this information and process, in a rational manner, what has been explained. (Glezer et al, 2011, p. 524).

In situations where patients lack decisional capacity due to current disease processes, it is imperative for healthcare institutions to identity if the patient has selected a healthcare agent by proxy to step forward to make any healthcare related determinations until capacity can be restored. With the passage of the Patient Self-Determination Act of 1990, patients are entitled to advance care planning by which they can select their healthcare agent and develop living wills to serve as a guide toward an individual’s wishes, when one is no longer able to advocate for oneself. Healthcare organizations have a responsibility to communicate with their customers/patients about the existence of any advance directives and ensure that this information is clearly outlined in the medical record (Glezer et. al, 2011, p. 522).

In certain situations, patients may be identified as lacking the ability to physical, medically or financially care for themselves, creating quite a paradox for the healthcare team when addressing medical needs and determining plans of care. In order to protect these individuals from vulnerability, guardianship status can be explored through the legal system. The process for obtaining guardianship varies according to state law, but consistently this process requires a determination of incompetence (Arias, 2013, p. 147). Determination of competence, while decided by a judge through the judicial process, lies heavily on the judgment and recommendations of the medical community (Radziewicz, Driscoll, & Lavakumar, 2014, p. 11).  When a guardian is established, whoever is designated assumes the responsibility for overseeing that the rights of the individual are protected as well as facilitation of any medical decisions that need to be made in the best interest of the patient The process of competency determination and appointment of guardianship are legal matters, which take time and extreme deliberation and, once this process is completed, it is rarely revoked.

As healthcare risk managers, we are often consulted as to who can provide consent for treatment in situations where patients have altered mental statuses, medical conditions which render them incapacitated, or when a patient’s competency is in question. During these crucial clinician interactions, the risk manager can use these situations to provide just-in-time education about the process of decision-making capacity (DMC). Understanding and remaining abreast of the state law and incorporating organizational policies around DMC to reflect current law are important facets for the risk managers’ practice in order to remain subject matter experts.

Using proactive assessments, risk managers should analyze the organizational process of tracking these legal documents and how this information flows between all phases of care settings, inpatient, readmissions, and/or outpatient care. In analyzing process breakdowns, areas to explore should start with clinical practice.

  • Does front line staff understand advance directives and/or the process of informed consent?
  • Does current practice create an environment where clinicians find themselves in situations where they must utilize their time to focus on clinical tasks or it is from failure to receive documentation as requested (Glezer et al, 2011, p. 525)?

Examination of the above questions will aid the risk manager in determining if there are any operational barriers to practice, which may be used by clinical and regulatory leadership to develop new processes to ensure practice compliance.

With the adoption of the electronic health  record (EHR), the flow of information for continuity of care can extend to capturing the presence of advance directives, living wills and other legal documents such as guardianship papers. In a study conducted by the Veteran’s Administration with the adoption of the EHR, once advance directives are identified, this information is then captured on the face sheet of the record, highlighted to create a visual queue and links are created for easy access by the clinical team (Nakagawa et al., 2014, p. 1811-1812). Taking this concept further, whether a link or a designated tab within the EHR, clinicians should always review this information for accuracy and upload any new documents provided during a clinical encounter. Through utilizing the convenience of the EHR, clinicians have easier access to these crucial documents ensuring that patients’ wishes are known up front, decision makers are identified earlier and easier when needed, and those who are responsible for the welfare of clients are included in plans of care.


In the era of the electronic health  record, the barriers to identification of advance directives and guardianship status can be greatly reduced, if not eliminated. Healthcare risk managers should remain familiar with current law as it applies to their state of practice and analyze organizational policies for compliance. As subject matter experts, the healthcare risk manager should proactively conduct risk assessments within their organization to identify areas for operational improvement, provide education to front line staff to enhance understanding regarding decision-making capacity and mitigate risk exposure leading to promotion of patient safety.


Arias, J.J. (2013). A time to step in:  Legal mechanisms for protecting those with declining    capacity. American Journal of Law & Medicine, 39, 134-159.

Glezer, A., Stern, T.A., Mort, E.A., Atamian, S., Abrams, J.L., Weintraub Brendel, R. (2011). Documentation of decision-making capacity, informed consent, and health care proxies:  A study of surrogate consent. Psychosomatics, 52, 521-529.

Nakagawa, S., Clark, E.M., Cobbs, E.L., Livote, E., Awan, K.S., Blackstone, K.A., Lindenberger, E.C. (2014). Promoting advance care planning documentation for veterans through an innovative electronic medical record template. Journal of American Geriatric Society, 62(9), 1811-1813.

Radziewicz, R.M., Driscoll, A., Lavakumar, M. (2014). Assessment and management of patients who lack decision-making capacity. The Nurse Practitioner, 39(3), 11-15.

Sessums, L.L., Zembrzuska, H., Jackson, J.L. (2011), Does this patient have medical decision-making capacity? Journal of American Medical Association, 306(4), 420-427.

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