Liability Risk and Ethical Issues Associated with Patient Decision-Making Capacity: Frequently Asked Policyholder Questions

This article presents NORCAL Group Risk Management department responses to policyholder questions about medical decision-making capacity. Most of these questions involve obtaining informed consent for treatment for a patient with diminished or absent medical decision-making capacity. The management of the informed consent process is often complicated by family member disagreements, which requires determining who within the family has standing to give informed consent. Other policyholder questions involve patients without appointed (either by the patient or court) medical decision-makers, whose refusal of treatment requires determining whether he or she has the requisite capacity to make such a decision, and if he or she does not, how to move forward. Some policyholders call seeking strategies for protecting the safety of an incapacitated patient or the public. And finally, policyholders call for advice about responding to third-party requests for testimony or opinions regarding a patient’s decision-making capacity.