Assessment

(1) Validity of the assessment. If an examiner concludes that a patient is unable to make an informed decision about a subject to which these rules apply, then the patient lacks capacity for a decision about the subject matter at that time. (2) Stringency of the assessment. The stringency of the capacity assessment should correspond directly with the seriousness of the likely consequences of the informed decision that needs to be made. The examiner should consider the risks and benefits of the decision in reaching a conclusion on the patient’s capacity to make an informed decision, with decisions associated with a higher risk of negative consequences requiring a higher standard of decision-making capacity than lower risk decisions. (3) Performing the assessment. (a) The examiner must approach the evaluation of a patient’s capacity to make an informed decision on the presumption that the patient has capacity. (b) The examiner must consider the patient’s understanding of the information, the patient’s ability to express a choice, the patient’s appreciation of how the information applies to them, and the patient’s ability to compare information and anticipate consequences of choice. (c) The examiner must take reasonable steps to conduct the assessment in a way that enables the patient to show capacity to make informed decisions about the procedure or treatment. (d) The examiner must provide relevant information to the patient, including: 1. The issue to be decided and the reason a decision is needed; 2. The proposed procedure or treatment and the risks and benefits of the proposed procedure or treatment; 3. Any consequences of accepting or refusing the procedure or treatment; 4. The risks and benefits of any available alternatives; and 5. The patient’s right to refuse or later withdraw from participation in the procedure or treatment and the risks and benefits of refusal or withdrawal. (e) The examiner must consider the following in determining whether the person lacks capacity: 1. The person’s understanding of the proposed procedure or treatment; 2. The person’s understanding of the anticipated side effects of the proposed procedure or treatment; 3. The person’s understanding of what could happen if the procedure or treatment is carried out; CAPACITY TO MAKE DECISIONS CHAPTER 0940-01-06 4. The person’s understanding of what could happen if the procedure or treatment is not carried out; 5. The person’s understanding of available alternative procedures or treatments, including their risks and benefits; 6. The person’s understanding that the procedure or treatment can be refused and what could happen if the procedure or treatment is refused; 7. The person’s understanding of whether the procedure or treatment can be stopped after it begins and the potential consequences; and 8. The person’s ability to maintain a choice by continuing to express the same decision about the issue at various times during the assessment process. (4) Documenting the assessment. The examiner must document the assessment, including: (a) The issue which required an informed decision; (b) Specific actions, statements, or behaviors of the patient that initially gave reason to question the patient’s capacity; (c) Specific actions, statements and/or behaviors of the patient that support the examiner’s conclusion about the patient’s capacity to make an informed decision; (d) The examiner’s conclusion on the patient’s capacity to make an informed decision; and (e) The examiner’s signature, credentials, and the date and time of the assessment.