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Patient Challenges in Capacity and Decision Making

Aanalyze the legal and ethical issues around patient capacity and surrogate decision making by focusing on a given scenario.

Application: Challenges in Capacity and Decision Making

Patient rights include the right to informed consent, which entails that patients receive adequate information to make medical decisions. But many questions can arise if patients appear to lack the capacity to understand their medical condition or options. How is capacity determined? Who decides on behalf of the patient if the patient is determined to lack capacity? How should a surrogate decide on behalf of a patient?
Assume that the applicable law in your state is the same as explained in the summary of the Uniform Health-Care Decisions Act, available at

Review Appelbaum, P.S. (2007). Assessment of patients' competence to consent to treatment. New England Journal of Medicine, 357(18), 1834-40.
*Please see attached ProQuest Document*

Also review the section of the Merck Manual on surrogate decision making,

Refer to these readings as well as to the laws as described in Sections 5, 7, and 11 of the Uniform Health-Care Decisions Act in order to identify legal and ethical issues that apply to the scenario above.
Read Chapter 4, "Health Care Ethics Committee," in Legal and Ethical Issues for Health Professionals (required reading in Week 6).


An 83-year-old diabetic male, Mr. Jones, is brought in to the emergency department because of respiratory distress by his care-giving daughter, with whom he lives. In examining him, the emergency department physician discovers that Mr. Jones has gangrene on his right foot up to his ankle.
Mr. Jones' daughter reports that her father has been diagnosed with Alzheimer's disease. A preliminary capacity assessment is consistent with mild dementia, but one of the nurses suggests that Mr. Jones' confusion might be the result of his respiratory distress, coupled with the disorienting atmosphere of the emergency department.
The clinical recommendation is to perform a below-the-knee amputation. The patient refuses this surgery, saying he has lived long enough and wants to die with his body intact. His daughter disagrees and says she wants everything done so that she can take him home as soon as possible, and says that she will sue the hospital if they do not perform the amputation. A social worker comments that the daughter might be afraid of an elder-neglect investigation if her father dies.
Mr. Jones does not have an advance directive of any kind and is not under guardianship.

Address the following:

What are the relevant legal issues at stake?

What are the legal rights of the patient and his daughter?

What are the relevant ethical issues at stake?

Why does capacity assessment matter?

How might the hospital's ethics committee or ethics consultation service help in addressing this? Include a description of how an ethics consultant or committee might become involved in this case.

Consider the role that capacity assessment must play in health care.
Why is it important? What are the consequences of not adequately assessing a patient's capacity?

In what ways would a health care consultation or committee be able to address the ethical challenges in this scenario?

How do you think a bioethicist would deal with this case in terms of the procedures he or she would engage in?


Solution Preview

Koppelman ER Dementia and dignity: towards a new method of surrogate decision making. The Journal Of Medicine And Philosophy (2002). Feb; Vol. 27 (1), pp. 65-85;

How is capacity determined? Who decides on behalf of the patient if the patient is determined to lack capacity? How should a surrogate decide on behalf of a patient?

Capacity is determined through capacity assessments that consist of cognitive evaluations such as the Executive Interview (EXIT). These evaluations estimate a patient's decision-making ability to ascertain whether declines in a patient's capacity to consent to treatment exist. These neuropsychological tests assess cognitive function, but they cannot be considered the only part of the assessment because patients with dementia are vulnerable to being negatively positioned, which unfairly undermines their right to make decisions about aspects of their lives such as the scenario presented in this case.

If a patient is deemed incapable of possessing the capacity to make a decision on their own, a surrogate decision-maker is allowed to make the decision for them. When deciding on behalf of the patient, the surrogate decision-maker should ascertain the "whole-self" of the patient wherein the decision made by the surrogate reflects both the patient's wishes when they were lucid and capable of making their own autonomous decisions as well as the "now-self" that is incapable of making these decisions. Patients dependent upon surrogate decision-makers lack the dignity of being free to express who they are through choice and action. Therefore, surrogates must attempt to ensure decisions made for the patient reflect that patient's self.

What are the relevant legal issues at stake?
What are the legal rights of the patient and his daughter?

Relevant legal issues entail the fact that the elderly patient doesn't possess advance directive of any kind such as a living will and is not under guardianship such as a health-care power of attorney. Therefore, the legal protections that apply in many state legislatures such as "living will" statutes and "health-care power of attorney" statutes, and represent the law for special cases, do ...

Solution Summary

Challenges in Capacity and Decision Making