Competency v. Capacity: A Refresher Roadmap for Obtaining Informed Consent

By Joseph J. Feltes, JD
Wednesday, December 19, 2018
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On September 29, 2018, the latest version of Ohio’s informed consent statute, Revised Code 2317.54, became effective. It reaffirms how the responsibility for obtaining a patient’s written informed consent to a surgical or medical procedure remains with the physician. It reinforces that consent obtained in a manner fulfilling prescribed statutory requirements is presumed to be valid and effective, and that no evidence is admissible to impeach, modify, or limit the authorization for performance of the procedure described in the consent, unless the consent was obtained in bad faith, induced by fraudulent misrepresentation of material facts, or that the person signing the consent was not able to communicate in English.

This latest affirmation affords an opportunity to review those statutory requirements. The first two are straight-forward: (1) The consent sets forth in general terms the nature and purpose of the procedure and what the procedure is expected to accomplish, together with reasonably known risks, and it identifies the name of the physician who will perform the procedure, except in emergency situations; and (2) The person giving consent acknowledges that the disclosure of information in (1) was made, and that all questions he/she may have asked about the procedure have been satisfactorily answered. It is the third requirement that sometimes can be confusing. That provision reads:

The consent is signed by the patient for whom the procedure is to be performed, or, if the patient for any reason including, but not limited to, [lack of] competence, minority [less than 18 years old], or the fact that, at the latest time that the consent is needed, the patient is under the influence of alcohol, hallucinogens, or drugs, lacks legal capacity to consent, by a person who has legal authority to consent on behalf of such patient in such circumstances ...

The question occasionally arises —what is the difference between “competence” and “capacity,” and how does that affect who can give a valid informed consent?

“Competency” refers to any person who has sufficient mental ability and cognitive capabilities to execute a legal recognized act, such as entering into a contract or signing a will, rationally. Incompetency either refers to a minor, or it refers to someone who is so mentally impaired that he/she is incapable of taking proper care of himself/herself. Whether a person is competent or incompetent is a formal judicial determination by the probate court in guardianship proceedings, according to Ohio Revised Code 2111. A person judicially determined to be incompetent (known as the “ward”) cannot give informed consent, which must be obtained from a guardian or other person with legal authority, which may include an attorney-in-fact in a durable power of attorney for health care.

“Capacity,” on the other hand, is a clinical assessment a physician must make to determine whether the patient has the ability to make an informed decision, including consent to treatment or refusal of treatment. A physician may assess and determine a patient’s capacity at any given time on a case-by-case basis, taking into account clinical circumstances, including the patient’s ability to: (1) communicate and understand information being given; (2) understand his/her medical status and options for treatment, including no treatment, along with each option’s reasonably known risks and benefits; and (3) make logical decisions based on the information given.


Joseph J. Feltes, JD

Whereas a patient who is incompetent lacks the legal ability to give informed consent, even a patient with diminished capacity may still give consent if the physician determines in good faith that the patient basically understands the consequences of giving an informed consent or informed refusal to treat. When in doubt, and depending on circumstances, a physician may seek consultation with another provider regarding a patient’s capacity to make an informed decision, or attempt to obtain consent from the patient’s representative, such as an attorney-in-fact, parent, adult child, or representative.


Joe Feltes is an attorney with Buckingham, Doolittle & Burroughs, LLC in Canton OH and a member of its Health & Medicine Practice Group. He is also the managing partner of Buckingham Canton. For more information about the law firm, go to www.BDBLAW.com or email Mr. Feltes at Jfeltes@BDBLAW.com.