Patients with mental health and/or cognitive diagnoses may lack capacity to make certain types of decisions. It is important to note that having one of these diagnoses does not alone indicate that one does not have capacity. Also, capacity is not global: One may possess capacity to manage finances, for example, but not to live independently. Therefore, assessment of the capacity in question, despite capacity in other domains, is necessary. Lastly, capacity can fluctuate: Although one may or may not currently possess capacity, this may change with time. Therefore, reassessment over time is important.
The different types of capacity Dr. Fine assesses are as follows:
capacity to manage finances
capacity to consent to medical care
capacity to consent to sexual relations
capacity to live independently
capacity to appoint a power of attorney or durable power of attorney
capacity to drive
One of the main questions addressed in a capacity evaluation is whether an individual is making a decision we disagree with, but one we must respect because the person has capacity, or, whether this person lacks the capacity to make the decision. Historically, evaluations of decisional capacity have been made on the basis of a clinical interview or general mental status evaluation. Such clinical evaluations can be unreliable (Markson, 1994; Marson, McInturff, Hawkins, Bartolucci, & Harrell, 1997; Rutman & Silberfeld, 1992). Personal values and professional background and experience, amongst other factors, may influence a clinician’s view of an individual's decisional capacity (Clemens & Hayes, 1997). While the use of standardized psychological and neuropsychological tests may improve the reliability of capacity assessment, it can be unclear how to relate this assessment data (e.g., “impaired immediate memory”) to specific capacity questions (“capacity to manage finances”). Therefore, using specific capacity measures, requiring real-world skills and completion of activities specific to the assessed capacity, is necessary. The implications of not assessing capacity and taking appropriate measures can be devastating and may include: loss of finances; appointment of an individual as power of attorney, who does not have the individual's best interest in mind; and motor vehicle accidents.
Undue influence is a legal concept that refers to a dynamic between an individual and another person. It describes the intentional use of social influence, deception, and manipulation to gain control of the decision making of another. Undue influence can be understood as a dynamic of a relationship when a person uses a role and power to exploit the trust, dependency, and fear of another. The role and power permits the person to gain control over the decision making of the victim. Cognitive impairment increases susceptibility to undue influence and dependence, making assessment of capacity increasingly important.