Reconsidering Capacity Assessments

Despite the routine assessment of decisional capacity in the clinical context, the concept of capacity is contested, and its measurement is flawed. For example, scholars and clinicians disagree about the criteria for demonstrating capacity. There is further lack of consensus about whether some types of medical decisions should require more evidence of capacity. Moreover, there is robust literature demonstrating that formal capacity assessment instruments are not always valid and reliable.This Article focuses on these and other issues, namely the fact that (in)capacity as currently understood is often not viewed relationally and contextually. (In)capacity is viewed as a cognitive property of an individual - an individual has capacity or does not. However, properly conceived, (in)capacity is constituted in interaction with others (e.g., health care providers, family, friends) and one's environment, and mediated through one's body and experience of health, illness, or disability. When this reality is not acknowledged, clinicians, caregivers, family members, and others miss opportunities to strengthen patients' decisional capacity by modifying how they communicate with patients and by changing patients' environment to improve decision-making. In fact, not acknowledging the relational and contextual nature of (in)capacity likely leads to weakening of patients' decision-making abilities and the unnecessary disqualification of patients from contemporaneous decision-making, which subsequently negatively affects patient interests in maintaining autonomy and bodily integrity and experiencing wellbeing.This Article will foreground the relational and contextual nature of (in)capacity and address problems with capacity assessments for adult patients in the medical decision-making context, propose reforms to the capacity assessment process, and conclude by discussing the implications of these arguments in other decision-making contexts.