When a Patient Is at Foreseeable Risk of Losing Decisional and Functional Capacity

The four-skills model of decisional capacity for providing informed consent for medical treatment developed by Appelbaum and Grisso is codified into most state statutes in articulating the legal criteria for establishing capacity. Decisional capacity is traditionally determined at a point in time based on a narrow clinical question; however, there are clinical scenarios in which patients may currently have decisional capacity but their recurrent nonadherence to care places them at foreseeable risk of being acutely incapacitated, both decisionally and functionally, in the near future. There is a gap in terms of how these four skills ought to be adapted when applied to a patient with recurrent altered mental status, especially delirium, because of nonadherence. To describe this clinical situation, we introduce a new risk factor, "foreseeable risk of losing decisional and functional capacity," and discuss the clinical evaluation of a patient who currently has capacity but for whom this risk factor applies. We consider the implications of being at foreseeable risk of losing capacity and how foreseeable risk can be translated into a capacity determination in the present. We also describe interventions that can serve to protect the patient's rights and safety.