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# 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.

Updated Nov 5, 2026

## Key points

- Capacity = the doctor's clinical judgement; competence = a judge's legal ruling.
- Four abilities: understand, appreciate, reason and express a choice.
- It is specific to each decision and can fluctuate (delirium, sedation).
- Refusing a treatment does not prove incapacity.
- Law 1996 of 2019, art. 6: people with disabilities have legal capacity on equal terms; art. 53 bars starting new guardianship (interdicción) proceedings.

## 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.

## Memory aid

«U-ARE»: Understand, Appreciate, Reason, Express a choice.

## 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.

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## Connections

## Related 2

- [Informed consent: elements and how to obtain it](https://durgical.com/en/medical-ethics/informed-consent-elements-and-how-to-obtain-it/)
- [Surrogate decisions: substituted judgement and best interests](https://durgical.com/en/medical-ethics/surrogate-decisions-substituted-judgement-and-best-interests/)

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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](https://plato.stanford.edu/entries/decision-capacity/) (Stanford Encyclopedia of Philosophy, 2020); [Informed Consent](https://depts.washington.edu/bhdept/ethics-medicine/bioethics-topics/detail/67) (University of Washington, Department of Bioethics & Humanities, 2018); [Sentencia T-083 de 2021](https://www.corteconstitucional.gov.co/relatoria/2021/t-083-21.htm) (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](https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=99712) (Función Pública, Gestor Normativo, 2019); [Decreto 3380 de 1981, por el cual se reglamenta la Ley 23 de 1981](https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=68761) (Función Pública, Gestor Normativo, 1981).

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License: CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). Cite as: DurgiPedia (durgical.com), https://durgical.com/en/medical-ethics/decision-making-capacity-and-how-to-assess-it/