Assessment of Decisional Capacity in an Older Person

Capacity and competence are not the same. A clinician evaluates a patient's capacity to make a decision; competence is a legal term implying that a person has been deemed competent or incompetent by a court of law. Someone not competent to act on their own behalf requires an agent to act for them.

Competence refers to a person's ability to act reasonably after understanding the nature of the situation being faced.

Capacity is decision-specific and time-specific. A patient may have capacity for one decision and not another, and may regain capacity later.

Capacity is presumed until proved otherwise. A diagnosis of dementia — even by type — is not a sufficient indicator of a person's ability to comprehend and express a meaningful preference. Intellectual deficits are spotty: a person may get lost or forget things yet still make decisions with appropriate prompting.

The ethical foundation is autonomy — the capacity of each adult and cognitively competent individual to process information and freely decide on a course of action that best suits their own values, preferences, goals and desires. Respect for autonomy underpins informed consent.

Preconditions of valid informed consent: competence to understand and decide, and voluntariness in deciding. The information element is disclosure of relevant information about the condition and the proposed course of action.

An unwise decision is not incapacity. In a patient with capacity, autonomy means "you may not do things to me without my permission" — even if a patient's decision to refuse treatment seems unwise, if they have capacity their refusal stands, and the clinician's duty of care does not diminish; all other care continues without prejudice.

Just as it is wrong to infantilise patients by directing questions to others who answer faster, it is equally wrong to prejudge their ability to participate in decisions about their own care.

Decisional capacity is predicated on four elements — the single most examinable list: - Understanding — the ability to comprehend the disclosed information about the nature of the situation or medical problem, the procedures involved, and the risks and benefits of undergoing or not undergoing testing or treatment. - Appreciation — of the significance of the disclosed information and the potential risks and benefits for one's own situation and condition. - Reasoning — the ability to engage in a reasoning process about the risks and benefits. - Choice — being able to express a choice whether or not to undergo further testing or treatment.

The four US legal standards for determining decisional capacity (a parallel, equally examinable list): - The patient is aware of the treatment options and expresses a treatment preference clearly and consistently. - The patient can give a conventionally understandable reason for the decision that is consistent with their past behaviour. - The patient remembers and can tell back the information about diagnosis, prognosis and treatment options given by the practitioner. - The patient can state what their decision means for their own state of health.

The sliding-scale principle (Figure 95.1): the standard of decisional capacity required rises with the risk of the intervention. A fully cognisant patient with good health literacy can consent to high-risk options such as a phase 1 clinical trial; a cognitively impaired patient lacking decisional capacity could not consent to experimental treatment and, given reduced life expectancy in advanced dementia, would be unlikely to benefit from highly toxic therapy even if it is standard of care. The area between is the domain of best clinical judgement. Hence "staging the ageing is as important as staging the cancer."

Distinguish memory from understanding — a person may fail a memory test yet understand the decision at hand.

No cognitive screening test is appropriate to determine decision-making capacity. Screening tools that focus on executive function — the Clock Drawing Test or the Executive Interview — are more likely to be associated with decisional capacity than the MMSE.

Formal capacity instruments exist but are difficult for older adults, because they require consideration of hypothetical situations and complex abstract thinking. Examples: MacCAT-T (MacArthur Competence Assessment Tool for Treatment — the reference standard), Aid to Capacity Evaluation (ACE), Capacity to Consent to Treatment Instrument (CCTI), Hopemont Capacity Assessment Interview, Understanding Treatment Disclosures.

A useful practical criterion in routine informed consent is to recheck with the patient after an interval to be certain that they understand the situation and consistently state the same preference.

Maximise capacity before declaring its absence. Before deciding a person cannot decide: correct sensory deficits (a deaf patient may need a hearing aid, many older people need glasses), treat delirium, depression, pain and infection, review sedating drugs, use simple language, repetition and rephrasing, choose a quiet, distraction-free environment, and involve a familiar person. Written material must be legible — a leaflet is useless if the typeface is too small, the colour contrast is poor, or there is no white space.

Formal assessment of mental state may be necessary, but no specific score is associated with an inability to make decisions about one's personal healthcare — this is an important negative statement to write in an examination.

Where capacity is absent: consult any advance care directive and the surrogate or proxy decision-maker. A proxy may be formally appointed through an enduring power of attorney, or the patient's wishes may be recorded in an advance directive; if none exists, the lead clinician must decide in the patient's best interests, or apply for guardianship.

Hierarchy of treatment decision-makers (Australian model, quoted in the textbook): enduring guardian with authority → guardian with authority → adult son or daughter → parent → sibling → primary unpaid carer → other person with a close personal relationship and frequent contact. The clinician goes to the first person who is 18 or older, has full legal capacity, and is reasonably available and willing.

Communication and documentation: - Relatives must not be given the impression that the decision is theirs to make — they may suffer significant distress from the emotional burden. Their role is to provide valuable information about what would be in the patient's best interests. - Where families cannot bear to decide, the humane option is "informed assent" — explicitly offering them the choice to defer to the provider's judgement, documented clearly in the record. - Anticipate decisions early in admission so the patient can be involved as much as possible and proxy decision-making is avoided. - Clinicians must disclose: the condition being treated; the nature of the proposed treatment or procedure; anticipated results; recognised alternatives; and recognised serious risks, complications and benefits, including of non-treatment. - Document the assessment, the reasoning and the outcome.

Define the Capacity is decision-specific — state exactly which decision is in question decision

Presume Start from presumption; a diagnosis alone never establishes incapacity capacity

Optimise the Treat delirium, pain, depression, infection; correct vision and hearing; review sedatives; choose the best time of day and a person quiet setting

Disclose Condition, proposed treatment, expected outcome, alternatives, serious risks, and the consequences of non-treatment — in plain language

Test the four Understanding ("tell me in your own words") · Appreciation ("what does this mean for you?") · Reasoning ("how did elements you weigh those up?") · Choice ("so what would you like to do?")

Apply the Higher risk demands a higher standard of capacity sliding scale

Recheck Re-ask after an interval to confirm consistency of preference

Conclude If capacity present, the decision stands even if unwise. If absent, consult advance directive, then surrogate, then best and act interests or guardianship

Document Record the specific decision, the disclosure made, the four elements, the conclusion and the reasoning C. The Indian Legal Framework

Mental Healthcare Act (MHCA), 2017 is the governing statute across India and was rewritten after India ratified the UNCRPD in 2007. Capacity has a pivotal role.

Section 4, MHCA 2017: every person is presumed to have the capacity to make mental healthcare and treatment decisions if they can understand the information, appreciate the foreseeable consequences of the decision, or communicate the decision by speech, gesture or any other means.

Memory loss, cognitive deficits, or even a formal diagnosis of dementia do not imply incapacity automatically — the Act emphasises establishing capacity, and gives preference to the choices and wishes of a person who has capacity.

The opinion of the assessor or a third party that a decision is "unwise" must not influence the capacity assessment. Capacity is specific to the task and to the time.

Advance directives — Section 5(3): an advance directive is invoked only when the person becomes incapacitated and remains effective until they regain capacity. The Act does not clearly distinguish advance statements from advance directives.

Nominated representative: decision-making by a nominated representative is restricted to those lacking capacity for mental healthcare decisions. Supported decision-making ranges from minimal support to complete support.

Other relevant Indian law: the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (maintenance, protection, and transfer-of-property provisions), the Rights of Persons with Disabilities Act, 2016 (limited guardianship), the National Trust Act, 1999, and Elder Line 14567 for reporting abuse and neglect.

Practical Indian caveat: the MacCAT-T, though the international reference standard, is not standardised for the Indian population, and family plays a central role in healthcare decision-making in Indian and other Asian societies — creating real difficulties in operationalising individual autonomy and advance directives.

Indian evidence base is only now emerging. A 2025 descriptive cross-sectional study of mental capacity and advance directives in Indian persons with mental illness confirmed that published Indian data remain very scarce, that the MacCAT-T is regarded as the gold standard but is not standardised for India, and that the central role of the family creates practical difficulty in determining advance directives and enabling individual decision-making about future treatment.

Dementia and Indian law. A published analysis of the assessment of dementia under prevailing Indian laws confirms that under Section 4 of MHCA 2017 a diagnosis of dementia does not itself establish incapacity, and sets out the four components of the decision-making process as understanding, appreciating, reasoning and communicating. It also distinguishes capacity (clinical) from competence (legal — relating to valid contracts and financial and personal decision-making).

UK practice guidance (2024). NHS England guidance restates the functional test as the ability to understand the relevant information, retain it long enough to make the decision, weigh up the arguments on each side, and communicate the decision (by talking, signing or any other means). It provides a practical checklist: choose a quiet space free from distractions and noise, avoid jargon, repeat and rephrase questions, and identify in advance what the "relevant information" for that specific decision is. Essex Chambers publishes decision-specific guidance on what constitutes relevant information for different categories of decision.

High prevalence of impairment in institutional settings. Older adults evaluated in long-term care have rates of capacity impairment between 44% and 69% — an argument for routine, structured assessment rather than ad hoc judgement.

Convergence with capacity-based frameworks. The German S3 CGA guideline (2024) mandates cognition and delirium assessment as a core dimension; WHO ICOPE includes cognition and psychological well-being. Both feed directly into capacity evaluation, and the Age-Friendly 4Ms place "What Matters" — eliciting the person's own goals — as the first M, operationalising autonomy in routine care.