Encyclopedia of Psychology and Law

of its intended benefit—may often represent a techni-

cal battery and be actionable under the law.

Medical-Legal Model

of Consent Capacity

As discussed above, a medical-legal model of TCC

incorporating specific consent abilities, or standards,

has been developed from case law and the psychiatric

literature. These standards are set forth below in order

of proposed difficulty for patients with dementia:

S1. The capacity simply to “evidence” or express a

treatment choice

S2. The capacity to make a “reasonable” treatment

choice (this is not a clinically accepted consent

standard because of concerns about the arbitrari-

ness of the operative term reasonable; it is thus for

experimental use only and is accordingly refer-

enced with brackets)

S3. The capacity to “appreciate” the personal conse-

quences of a treatment choice

S4. The capacity to reason about treatment and pro-

vide “rational reasons” for a treatment choice

S5. The capacity to “understand” the treatment situa-

tion and treatment choices

The above standards represent different thresholds for

evaluating TCC. For example, S1 (expressing choice)

requires nothing more than the subject’s communica-

tion of a treatment choice. [S2] (reasonable choice)

calls for the individual to demonstrate a reasonable

treatment choice, particularly when the alternative is

unreasonable. S3 (appreciation) requires the individ-

ual to appreciate how a treatment choice will affect

him or her personally. S4 (reasoning) evaluates the

individual’s capacity to supply rational reasons for the

treatment choice. S5 (understanding) is a comprehen-

sion standard and requires the individual to demon-

strate conceptual and factual knowledge concerning

the medical condition, its symptoms, and the treat-

ment choices and their respective risks/benefits.

Standards 3 to 5 are the standards generally applied in

clinical settings. It should be noted that this medical-

legal model can be readily applied to other consent

capacities, such as the capacity to consent to research,

and to decisional capacity generally.

In using this model and selecting applicable stan-

dards, clinicians should consider the potential risks

and benefits of a proposed treatment and the conse-

quences of refusing treatment. For instance, a patient

who consents to a relatively low-risk medical proce-

dure expected to yield significant benefits may be

judged using a lower or more liberal standard of TCC.

A more stringent threshold (e.g., S4, reasoning, and/or

S5, understanding) should be considered as the risks

associated with a medical procedure or with refusing

treatment increase. Due to its short-term memory and

other cognitive demands, S5 may be the most strin-

gent legal standard, particularly for older adults and

persons with amnesic disorders.

Cognitive Model for Consent Capacity

TCC may also be conceptualized cognitively as con-

sisting of three core tasks: comprehension and encod-

ing of treatment information, information processing

and internally arriving at a treatment decision, and

communication of the treatment decision to a clinical

professional. These core cognitive tasks occur in a spe-

cific context: a patient’s dialogue with a physician, a

psychologist, or some other health care professional

about a medical condition and potential treatments. The

comprehension/encoding task involves oral and written

comprehension, and encoding, of novel and often com-

plex medical information presented verbally to the

patient by the treating clinician. The information-

processing/decision-making task involves the patient

processing the consent and other information pre-

sented, integrating this information with established

personal knowledge, including values and risk prefer-

ences, reasoning about and weighing this information,

and arriving internally at a treatment decision. The

decision communication task involves the patient com-

municating his or her treatment decision to the clinician

in some understandable form (e.g., oral, written, and/or

gestural expression of consent/nonconsent).

Clinical Assessment of TCC

PPrroobblleemmss iinn AAsssseessssmmeenntt

Despite the relevance of issues of TCC in medical

settings, there is little academic or clinical education

in this area. Medical and graduate schools, as well as

residency, internship, and fellowship programs, have

not traditionally offered formal training in capacity

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