Slide the scale back: On decision-making capacity assessment and the ethical importance of maintaining patients’ decision-making authority

Abstract

Decision-making capacity (DMC) assessments determine whether patients may authorize medical interventions, yet the prevailing sliding-scale model, requiring greater certainty of capacity for higher-risk decisions, fails to account for the ethical implications of declaring a patient incapacitated. When patients are found to lack DMC, decision-making authority shifts to surrogate decision-makers, whose well-documented inaccuracy in predicting patient preferences frequently leads to treatment that does not align with the patient's values. Thus, DMC assessment is not merely a clinical determination but also an ethically significant act that may wrongfully strip patients of authority over decisions whose consequences they alone must bear. As such, when a patient expresses a treatment preference, does not clearly lack DMC, and faces an intervention that is restrictive, invasive, painful, or permanent, clinicians should adopt a more autonomy-protective approach. An algorithm is provided to help clinicians determine when to allow patients with unclear capacity to retain decision-making authority.