Medicolegal pitfalls when assessing decision‑making capacity in people with cognitive impairment

Abstract

Background The global population of older adults will double over the next three decades, and one in 10 will have dementia. Objective This article examines medicolegal pitfalls when assessing the decision-making capacity of cognitively impaired patients. Discussion Be aware of the pitfalls while completing the five steps of the assessment. Step 1, the request for a capacity assessment, alerts the clinician that this is more than an administrative form-filling task and that the consultation is not therapeutic. Step 2, initiation of the consultation, requires being prepared for a new diagnosis of dementia, explicitly obtaining consent and understanding the expectations of all involved. Step 3, the clinical assessment, requires avoiding assumptions about the patient and the law, completing tests of cognition, including executive function, and ensuring a detailed understanding of the matter requiring a decision. Step 4, the formulation of opinion and documentation, requires documenting and addressing the legal questions about function and impairment. Step 5, review and reflect assuming somebody will contest the opinion.