Decision-making capacity (competence) and how to assess it
- Procedure
Decision-making capacity is a person's ability to make one specific medical decision; the doctor assesses it at the bedside.
What it is
Decision-making capacity is a clinical judgement: the treating doctor assesses whether the patient can decide about one specific matter at one specific time. Competence, by contrast, is a legal category decided by a judge. Four abilities are assessed: understanding the information, appreciating how it applies to one's own situation, reasoning with it and expressing a choice. Capacity is presumed, is decision-specific and can change over time. In Colombia, the Constitutional Court separates legal capacity (tied to the age of majority) from autonomy or the capacity to consent (ruling T-083 of 2021), and Law 1996 of 2019 presumes the legal capacity of people with disabilities.
What it must include
- Understand: the patient explains in their own words their situation, the proposal and its risks.
- Appreciate: they recognise that the information applies to them and their future.
- Reason: they compare options and link the choice to their values.
- Express a choice: they communicate a stable decision, by any means.
- A diagnosis (dementia, schizophrenia, intellectual disability) does not by itself mean incapacity.
How it is done
- Start from the presumption of capacity; assess when there is doubt or the decision is high-risk.
- Name the specific decision being assessed.
- Fix what can be fixed: pain, hypoxia, sedating drugs, language, hearing or missing supports.
- Ask the patient to explain the information and their situation in their own words.
- Ask how they reached their decision and whether it fits their values.
- Check that they can express a stable choice; repeat the assessment if their state fluctuates.
- If doubt remains, ask psychiatry or the ethics committee for help.
- Record each ability assessed and the conclusion in the medical record.
Capacity versus competence
| Feature | Capacity | Competence |
|---|---|---|
| Who decides | The doctor | A judge |
| Nature | Clinical judgement | Legal category |
| Scope | One specific decision, at one time | Global or by type of act |
| Can it change | Yes, from hour to hour | Only by another court decision |
In clinical practice
- A delirious patient who, in lucid periods, consistently repeats the same decision may have capacity for that decision.
- Some authors require more capacity the riskier the decision (sliding scale); this is debated.
- A person may lack full legal capacity (an adolescent) and still be autonomous enough for a medical decision.
- If the patient lacks capacity for the decision, their representative decides, guided by what the patient would have wanted.
Common mistakes
- Mistaking disagreement with the doctor for incapacity.
- Using only an orientation or memory test as proof of capacity.
- Declaring the patient incapable for everything after one assessment.
- Not repeating the assessment when the mental state changes.
Test yourself
Think of the answer, then tap the question to see it.
What is the difference between capacity and competence?
Capacity is the doctor's clinical judgement about one specific decision; competence is a legal category declared by a judge.
What are the four abilities assessed in decision-making capacity?
Understanding the information, appreciating that it applies to one's own situation, reasoning with it and expressing a choice.
Does a patient who refuses a life-saving treatment lack capacity for that reason?
No. Refusal does not prove incapacity; it calls for assessing the four abilities and talking about the patient's reasons.
What does article 6 of Law 1996 of 2019 establish?
It presumes that all people with disabilities have legal capacity on equal terms, whether or not they use supports.
Connections
Educational content on ethics and health law; not legal advice. Laws and case law change: each page links the official text and says when it was last checked. For a real case, read the text in force and ask a lawyer or the medical ethics tribunal.
Sources: Decision-Making Capacity (Stanford Encyclopedia of Philosophy, 2020); Informed Consent (University of Washington, Department of Bioethics & Humanities, 2018); Sentencia T-083 de 2021 (Corte Constitucional de Colombia, 2021); Ley 1996 de 2019, régimen para el ejercicio de la capacidad legal de las personas con discapacidad mayores de edad (Función Pública, Gestor Normativo, 2019); Decreto 3380 de 1981, por el cual se reglamenta la Ley 23 de 1981 (Función Pública, Gestor Normativo, 1981).
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Representative model, for educational purposes only.