51

CAPACITY TO CONSENT TOTREATMENT

The capacity to consent to treatment, also known as

treatment consent capacity(TCC) and medical decision-

making capacity, is a civil legal capacity with impor-

tant ethical, legal, and functional aspects. TCC is a

fundamental aspect of personal autonomy and self-

determination and refers to a person’s cognitive and

emotional capacity to consent to medical treatment.

TCC involves the capacity not only to accept a treat-

ment but also to refuse a treatment, or to select between

treatment alternatives. Legally, TCC forms the corner-

stone of the medical-legal doctrine of informed con-

sent, which requires that a valid consent to treatment

be not only informedand voluntarybut also compe-

tent. Functionally, TCC may be viewed as an

“advanced activity of daily life” that is an important

aspect of health and independent living skills in both

younger and older adults. As such, it is a critical func-

tional and life skill considered by probate courts con-

ducting guardianship determinations.

From a legal standpoint, TCC is a distinctive civil

capacity. Issues of TCC generally arise in a medical set-

ting and usually involve a physician, a psychologist, or

some other clinician, not a legal professional, as deci-

sion maker. These clinical judgments of TCC are rarely

subject to judicial review. Accordingly, while clinicians

do not determine TCC in a formal legal sense, their

decisions often have the same effect insofar as a patient

can effectively lose decisional authority.

Over the past 30 years, consent capacity has

emerged as a distinct field of legal, ethical, clinical,

and behavioral research. Clinical and cognitive models

of TCC, and associated assessment instruments, have

been developed for evaluating TCC. TCC is often

tested using four standards drawn from case law and

the psychiatric literature: the capacities to

1. “evidence” or express a treatment choice (expressing
   choice),


2. “appreciate” the personal consequences of a treat-
   ment choice (appreciation),


3. “reason” about treatment (reasoning), and


4. “understand” the treatment situation and choices
   (understanding).

There is also a fifth consent ability of making a “rea-

sonable” treatment choice (reasonable choice), which

is used experimentally but not clinically. These con-

sent abilities represent different legal thresholds for

evaluating TCC and have served as the conceptual

basis for instrument development and clinical and

cognitive studies.

Legal Aspects of TCC

TCC is a fundamental aspect of personal autonomy in

our society. Clinicians are ethically and legally obli-

gated to respect patients’ right of self-determination

with respect to medical care. The doctrine of informed

consent protects this right of self-determination by

requiring that a legally valid consent to treatment be

informed, voluntary, and competent. As such, a diag-

nostic or therapeutic intervention that is performed on

a person lacking the capacity to consent—regardless

C

C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 51