Earlier this year, a question about Competency vs Capacity came to my attention. There was an opportunity for all involved to better understand how they relate and how they are different. Dr. Kim Hoenecke (Psychiatrist with ThedaCare Behavioral Health) was kind enough to create the attached summary document that does a great job explaining each. I encourage everyone to review and please feel free to reach out to Dr. Hoenecke (Kimberly.Hoenecke@thedacare.org) for any further questions.
Michael Hooker, DO
VP and Chief Medical Officer Acute Care
Clarification on the differences between capacity and competency:
-Capacity is a medical term, whereas competency is a legal construct.
-Capacity can change depending on the situation or time, with examples being a person may be able to understand a simple procedure but not for a more complex procedure. Capacity can also be impacted in conditions such as alcohol withdrawal or encephalopathy.
-Think of competency as being a longer term or permanent impairment of a patient’s mental faculties.
-By deeming a patient incompetent, this will set forth the cascade to pursue guardianship as well as removal of civil liberties. Testimony may be required by the physician/psychologist.
-It takes 1 physician or 1 psychologist to complete the standardized form for competency. Please note any specialty physician is able to complete this form.
-To declare a patient incapacitated, 2 physicians or one physician and 1 psychologist will need to agree the patient is not able to make decisions at that time.
-Once a patient is declared incompetent, it is very difficult to reverse that decision
-It is fairly straight forward and relatively quick to deem a patient no longer incapacitated. One physician can sign a form documenting the patient has regained their capacity.
-Patient may not have capacity if they are disoriented, demonstrating confusion, or having difficulty processing/manipulating information. This can often be determined with even a brief interaction. These cases do not necessarily warrant a competency evaluation if the patient’s condition could be expected to improve.
Steps to consider for patients that are demonstrating impaired thought processing:
-The person may need more time, such as if they are undergoing withdrawal from various substances, to regain their capacity.
-Consider activating the healthcare power of attorney, designating someone to make decisions on behalf of the patient. Would need to confirm patient has previously designated an agent.
-A patient has the right to make a poor decision, so long as they understand the potential consequences. An example of this would be refusing antibiotics, which would not necessarily mean someone is incapacitated or requires a competency evaluation.
-Even by deeming a patient incapacitated, this does not place them on a “hold.”
-Patients cannot be put on a 72 hour hold for medical reasons or wanting to make poor decisions. A Treatment Director’s Hold may only be initiated if there are active psychiatric concerns as well as dangerousness.