Competence vs. capacity: an analysis for medical professionals

January 12, 2006

Forensic Issues in Consultation-Liaison Psychiatry
By Phillip J. Resnick, M.D., and Renee Sorrentino, M.D.

Psychiatric Times December 2005 Vol. XXIII Issue 14

This article addresses the difference between competence (as a legal concept) and capacity (as in capacity to give informed consent for medical treatment). It begins:

Consultation-liaison psychiatrists frequently encounter clinical situationsthat have legal implications. The most common legal issue that arises in consultationpsychiatry is the question of competence. Practitioners often turn to thepsychiatric consultant for an opinion on whether a patient is competent when apatient is unable to consent to treatment or refuses a medically indicatedprocedure. The consultation request is often framed as a question (e.g., “IsMr. Smith competent to refuse surgery?”).

This consultation request reflects a common misconception regarding theissue of competence. Competence is alegal state, not a medical one. Competence refers to the degree of mentalsoundness necessary to make decisions about a specific issue or to carry out aspecific act. All adults are presumed to be competent unless adjudicatedotherwise by a court. Incompetence isdefined by one’s functional deficits (e.g., due to mental illness, mentalretardation or other mental condition), which are judged to be sufficientlygreat that the person cannot meet the demands of a specific decision-makingsituation, weighed in light of its potential consequences (Grissoet al., 1995). Only a court can make a determination of incompetence.

In contrast, psychiatric consultants can and should opine about a patient’scapacity to make an informed decision or judgment. Capacity is defined as an individual’s ability to make an informeddecision. Any licensed physician may make a determination of capacity. Forensicpsychiatrists, however, are especially suited to assess a person’s mentalstatus and its potential for interfering with specific areas of functioning. Anindividual who lacks capacity to make an informed decision or give consent mayneed to be referred for a competency hearing or need to have a guardianappointed. The psychiatric consultation results in an opinion regarding whethersuch actions are indicated.

Moreover, competence is issue specific. Some physicians who misconstruecompetence to be a global, black or white issue will ask psychiatricconsultants for a broad consultation on whether thepatient is competent or not. The response of the psychiatric consultant shouldbe, “Competent for what?” The capacity to make a competent, informed decisionon the issue at hand needs to be investigated. Other aspects of the patient’smental status or diagnosis are not as relevant as their abilityto comprehend and make voluntary, informed decisions regarding the immediateproblem.

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