Improving knowledge of capacity assessment

The right to individual self-governance (autonomy) is one of the core values of contemporary Western ethics. Inmedical ethics, this translates into the right to determine what happens to one’s own body in terms of health and mental health care, including the right to refuse treatment. But respect for individuals as autonomous agents also has broader and common application to self-management of civil, personal, and financial affairs, such as managing one’s assets and debts, making a will, entry into binding legal contracts, consenting to research participation, and consenting to sexual contact. Themost complex ethical dilemmas are not those with a clear choice between ethical and unethical actions, but rather those in which two important ethical mandates appear in conflict (DuBois, 2008). Although respect for autonomy is highly valued it is not absolute. In the context of those with limited capacity to make authentic autonomous decisions, there is a complementary ethical concern of “abandoning persons to their right to self-determination” (Freedom, 1984, p. 909) As described in The Belmont Report in reference to research ethics: “Respect for persons incorporates at least two ethical convictions: first, that individuals should be treated as autonomous agents, and second, that persons with diminished autonomy are entitled to protection” (unpaginated) (National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, 1979). Achieving a balance between these two ethical imperatives is a profoundly important yet complex task. This issue comes up frequently for many mental health care providers, as a number of cognitive and other neuropsychiatric conditions may elevate the risk of impairment in decision-making capacity in one or more domains of independent functioning (Biella et al., 2020; Oshima et al., 2020; Parmigiani et al., 2021; Romdhani et al., 2020). The importance of implementation efforts to ensure mental health professionals understand the ethical, legal, and practical underpinnings of capacity assessment was highlighted in seminal research from Marson and colleagues in the late 1990s. Specifically, they published a widely cited study regarding inter-rater reliability of physician’s capacity determinations in regard to capacity to consent to medical treatment (Marson et al., 1997). Twenty-nine patients with mild Alzheimer’s disease (AD) and 16 older comparison subjects were videotaped during a standardized consent capacity interview. Five experienced physicians board certified in their relevant subspecialties independently viewed each videotape and made a judgment as to whether the individual was competent or incompetent to consent to treatment. Marson and colleagues found that all but one of the participants without AD were unanimously rated as competent, and the latter was rated as incompetent by only one of the five judges, yielding an agreement rate of 98%. However, there was substantially less consensus on ratings for people in the AD group. The percentage of “incompetent” ratings for the AD group varied from 90% by “physician 1” to 0% by “physician 5,” and the overall agreement rate for determinations of competence in the AD group was only 56%. As noted elsewhere by Marson et al. (1994) “It is precisely in these more equivocal cases that physicians are asked to render competency opinions and in which it is critical that experienced physicians demonstrate judgment consistency” (p. 12). The lack of agreement was further salient given that the physicians were each basing their determinations on the same videotaped interviews, whereas agreement among independent interviewers might be even lower. Similar results have subsequently been found by other researchers (Kim et al., 2011; Sessums et al., 2011). The lack of inter-physician consensus on capacity ratings represents a critical ethical dilemma. It suggest that when one is in the equivocal/border region of capable/incapable functioning, the ultimate determination of competency status for those on the border of capable/incapable status may depend more on the characteristics of the person conducting the evaluation rather than the characteristics of the person being evaluated. Fortunately, evidence from the same research group illustrated that education in competency standards may be key to improving the consistency of such determinations. Specifically, Marson and collegues gave five physicians individual standardized orientation to five legal standards of competency and their operationalization, before having the physicians view and rate competence of persons in the videotaped capacity interviews (Marson et al., 2000). With such orientation, the physicians as a group had a 76% agreement rate on International Psychogeriatrics (2021), 33:9, 857–859 © International Psychogeriatric Association 2021