Introduction

There is often confusion over the meaning of capacity versus competency while providing medical care.  It is an important distinction to understand to best serve the patient and their needs while protecting the emergency medical service (EMS) provider from legal repercussions. Capacity is the ability to learn, process, and make decisions based on the information given. In an emergency management context, this means the patient being treated has the capacity to understand the risks, burden (financial and otherwise), and the benefits and alternatives to the proposed treatment (medical decision-making capacity). Competence is a legal (not medical) term, stating that a court of law has decided whether a person can make their own decisions. A person is competent only as deemed by a court (although a medical person can make their own determination towards competency). A person has the capacity to make a medical decision based on real-time assessment. Any emergency medical technician or paramedic has the ability, and the duty, to assess each patient's capacity so that they are best able to serve the patient's needs.[1][2][3]

Issues of Concern

Competence   

Competence is determined by a judge, not an EMS provider. A known legal incompetence ruling does favor a future lack of decision-making capacity, but a patient may retain his legal "competence" regarding medical matters, even if deemed incompetent.  For example, a patient may be deemed incompetent to make financial decisions but may be able to make their own medical decisions. A legal declaration of incompetence may be global, or it may be limited (e.g., to financial matters, personal care, or medical decisions). A surrogate should be named and have the appropriate paperwork in these situations.[4][5][6][7]

Minors

Minors can have the capacity for medical decision making, but the age they are deemed eligible to have the ability to make their own decisions varies by state law.  The age where a minor is considered to be able to make their own medical decision may vary based on the situation. For example, many states allow a minor to make medical decisions at an earlier age if the issue is "sexually related," (i.e., pregnancy, STI), drug use/abuse concerns, or if the minor is legally emancipated.

Dementia

A patient may carry a diagnosis of dementia, but still, have the capacity for medical decision making. The diagnosis should prompt the EMS provider to more carefully evaluate the patient's capacity to make a decision. EMS providers must assess each situation and always default toward beneficence if there is a question or concern regarding capacity.

Each patient has the right to self-determination for medical care, and the right of refusal of treatment, as long as they demonstrate the capacity to make such decisions. The patient can choose options for their care, and EMS personnel cannot decline to provide care based on the patient's refusals. A patient with the capacity to decide must have sufficient information regarding the condition and risks.  The patient must understand a decision needs to be made, and comprehend the risks, burdens, and benefits of the options. The information must be conveyed by the provider, be free from coercion, and should include any further information or translations as required to facilitate patient understanding and communication of their choice.

A patient's legally determined competency can affect the assessment of their capacity, but does not on its own exclusively determine the patient's ability to make their own decisions.

Clinical Significance

EMS providers frequently encounter patients who wish to refuse care or refuse certain procedures or treatments. All EMS providers should determine the patient's medical decision-making capacity for such refusals. The provider also must obtain informed refusals and informed consent, whenever possible. The signature on a release form alone does not guarantee that the provider's ethical or legal obligations are met. Careful documentation of patient education and the discussion of risks and benefits is required. Although a patient has the right to autonomy (deciding their course of actions even if this will result in harm), EMS providers must always, to the best of their ability, provide each patient with the risks, benefits, and alternatives available. The information should always be conveyed in a language and style that is readily understood by the patient. Some instances may require the use of a translator, in some situations, and in most instances will require the use of common (nonmedical) language, while retaining the accuracy of the information delivered. If the patient requires further information, additional personnel, or medical direction, should be consulted.

For emergency medical services, criteria for medical decision-making capacity include:

• Patient must have sufficient information from the provider regarding the medical condition and the associated risks to his health and person.
• Patient must understand that a decision must be made.
• Patient must understand the risks, burdens, and benefits of all options, including that of doing nothing.
• Patient must be able to use the information to make a decision in the setting of his values and belief systems.
• Patient must be able to communicate his choice to the provider.
• Patient must be acting without coercion or undue influence, including from family, friends, and providers.
• It is the responsibility of the emergency management service provider to identify loss of capacity for medical decision making. It is not the patient's responsibility to prove they retain such capacity.

If the EMS provider believes that a patient does not have the decision-making capacity, the patient's best interest and overall safety must be protected based on the best judgment of the provider.  The decision to act in the patient's best interest, in situations where the capacity for medical decision is suspect, is termed beneficence. In some instances, such as acute hypoglycemia, the goal should be to restore the individuals decision-making capacity (by correcting the low blood sugar) and then completing an informed consent/refusal discussion regarding further care. When the patient is unable to do so, or unable to do it quickly enough to make the needed critical decisions, a surrogate decision-maker may be enlisted to assist.  The use of surrogates raises additional ethical issues.  The "next of kin" is often relied upon to make surrogate treatment decisions, but this may not always be helpful. A legal relationship does not automatically establish appropriate surrogacy, nor can EMS personnel always verify these relationships. The best surrogate is one who knows the patient and knows their wishes and values and makes a "substituted judgment." This is often not available in the EMS setting so providers must default to interpreted beneficence. This makes the EMS provider functionally the surrogate for medical decision making for the patient. [8]