25 Feb Ask Alice March 2021

Dear Alice,

I understand that my health care agent will make decisions about my health care treatment if I am unable to do so. This is fine if my inability is obvious, like if I am unconscious. But if it isn’t obvious, who decides if I am unable to make health care decisions? On what basis? Is it the same as legal incompetence? And once I am deemed unable to make a decision about my health care and my agent steps in, does that substitution continue indefinitely?
Thanks, Just Wondering

Dear Just Wondering,
These are great questions, and I will do my best to answer them.

A patient has the right to provide or withhold consent to any medical treatment, and treating physicians have the associated duty to obtain that consent before they proceed with treatment. Thus, when the issue of ability or capacity comes up in the health care context, it is the patient’s capacity to make an informed and reasoned decision about providing or withholding consent to a particular treatment, at the time that decision needs to be made, that is pertinent.

Unlike a determination of legal competency, which is made by a court, a determination of medical decision-making capacity is made by a physician. Lack of capacity may be apparent based on the patient’s general behavior, conversation, and history, but if there are factors that call capacity into question but are not decisive (e.g., dementia, intoxication, brain damage short of unconsciousness, mental health conditions, severe learning disabilities), tests or other assessment tools may be used. The decision is generally made by a treating physician, but depending on the nature of the possible incapacity, other specialists may assist.

Notably, a physician’s determination that a patient is unable to make their own decision regarding treatment is time specific. In other words, you don’t need to worry about the substitution of your agent continuing indefinitely; the next time a treatment decision needs to be made, capacity will be reassessed and it will be your right to make your own decision if you can.

Additionally, the physician’s determination on capacity is decision specific. As a general matter, treatment decisions require the decision maker to listen to, understand, and remember information about the proposed treatment and alternatives; to weigh benefits and risks of the proposed treatment and alternatives; to use the information to make a decision; and then to communicate that decision. But of course, specific medical treatment decisions can vary quite a bit in terms of the amount and complexity of the information involved. It follows that a patient may be capable of making some types of treatment decisions but not others, even at the same time.

It should be noted that a person’s capacity is also considered at the time they sign their Advance Directive, as the witnesses must “sign and affirm that the person signing the Advance Directive appeared to understand the nature of the Advance Directive.” If one is considering including a “Dementia Provision,” it is very important that the person has capacity at the time of signing the form.

I hope this helps.
Best wishes, Alice

As always, please contact Don Freeman, Taking Steps Brattleboro Coordinator, 802-257-0775, ext. 101, or don.freeman@brattleborohospice.org, for information about Advance Care Planning.

Till next month, folks. Please send your questions to Alice via info@brattleborohospice.org.