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The medical profession has been charged with the seemingly conflicting responsibilities of respecting patients' autonomy while protecting from harm those patients who are incapable of protecting themselves. Assessing a patient's capacity to make decisions is a role with which all clinicians should be familiar. Although certain situations may call for specialized assessment, generalists, internists, subspecialists, geriatricians, and advanced practice nurses, among other health professionals, should be sufficiently familiar with the principles and process to handle most situations. The purpose of this chapter is to explain some of the ethical underpinnings to this responsibility, to highlight the strengths and weaknesses of approaches to assessing decisional capacity, and to describe the types of situations in which the clinician may play a role.

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Autonomy is defined as self-determination (see also Chapter 34). Respect for individual autonomy is understood to be an elemental principle of our society. Nonetheless, all of us face limitations on how much we can truly determine our fates. Limitations of resources and opportunity, societal and legal prohibitions, and the limits imposed by the rights of others not to have their autonomy infringed upon all limit one's self-determination. There are also limitations on who qualifies as an autonomous “self.” The full right to self-determination is generally recognized to apply only to adults who are “of sound mind.”

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Paternalism is defined as limiting an individual's autonomy in order either to prevent that individual from doing harm to themselves or to prevent the person from missing a substantial benefit. The circumstances under which paternalism is acceptable are not defined by the action the individual may wish to undertake, or by the probable untoward consequences of an action, but rather by the individual's ability to make decisions. In other words, our wish to protect an individual from doing themselves harm does not justify paternalism; we cannot prevent an individual from doing things that may cause them harm (overeating, bungee jumping, etc.). We can only justify intervention if we judge that an individual lacks the capacity to make decisions. In such a case, we are responsible for protecting the person from the possible harm of an incapable decision.

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The interplay between these concepts becomes apparent when the person is no longer felt to be “of sound mind.” This chapter will focus on those individuals who have cognitive impairment or a clouded sensorium (fixed lesions, dementia, or delirium) and will not discuss the competence of individuals whose decisional capacity may be impaired by psychiatric illness. When patients are cognitively impaired, clinicians have an obligation to respect their rights, to protect their persons, and to consider the safety of the public. This often requires careful balancing of conflicting imperatives.

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In the broadest sense of the word, for an individual to be competent, that individual must be well qualified to do whatever task they are doing. In the context in which we are talking, competence is viewed as a legal term. It ...

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