Psychosomatics 2013:54:103–110 © 2013 The Academy of Psychosomatic Medicine. Published by Elsevier Inc. All rights reserved.

Perspectives

Beyond Capacity: Identifying Ethical Dilemmas Underlying

Capacity Evaluation Requests

Nicholas Kontos, M.D., Oliver Freudenreich, M.D., John Querques, M.D.

Background: Psychiatric consultations involving the avoid harm, and to deliver care fairly, as well as with
evaluation of patients’ medical decision-making capacity the autonomy of others. Consultation psychiatrists are
often seem to have little to do with truly compromised well positioned to unearth these dilemmas and begin to
patient autonomy. Objective: The authors seek to exam- address them. Discussion: Effective engagement of ev-
ine hidden ethical dilemmas that lead to capacity evalu- eryday ethics in clinical medicine is hindered by reflex-
ation requests. Method: The authors utilize the “princi- ive resort to capacity evaluations when moral problems
plism” approach to biomedical ethics to illustrate some arise. Greater attention to matters of values, aggressive
common moral issues in patient care that are poorly urges, and obligations to others can enhance the negoti-
captured by the “autonomy-versus-paternalism” ation of routine ethical dilemmas.
paradigm. Results: Patient autonomy sometimes comes
into conflict with ethical imperatives to do “good,” to (Psychosomatics 2013; 54:103–110)

T he execution of capacity evaluations in clinical med-

icine has changed little in recent decades. Notwith-
standing attempts to standardize these assessments1,2 and
This frustration and its linkage to questions of deci-
sional capacity might stem from the heavy emphasis on
patient autonomy in contemporary medical ethics. The rise
wrangling over issues such as risk relativity,3–5 methods of patient autonomy to its current status as the trump card
promulgated over 20 years ago6 remain in place today.7 of medical ethics is well-documented,11–14 as is its rela-
Yet, capacity evaluations are performed on a growing tionship to a decline in society’s trust of authority in
proportion of hospitalized patients and constitute an in- general and medical authority in particular.15–17 “Auton-
creasing percentage of psychiatric consultation requests.8 omy vs. paternalism” may be what medical academia im-
The latter occurs despite continued articulation, if not plies to be the totality of medical ethics. Unfortunately, not
general awareness, that these assessments are not the ex- all frustration in medicine can be resolved by this “cir-
clusive province of psychiatry.2 cumscribed, binary moral system.”18
The burgeoning of capacity evaluations might simply We propose that the effort to make ethical square pegs
reflect greater awareness of clinical and social imperatives to fit the round hole of autonomy vs. paternalism might ac-
safeguard the interests of persons whose self-governance
may be medically compromised. However, nearly 40% of Received March 12, 2012; revised June 4, 2012; accepted June 6, 2012.
such requests are determined by consultants to be “not about From the Department of Psychiatry, Massachusetts General Hospital,
Boston, MA (NK, OF, JQ); Harvard Medical School, Boston, MA (NK,
capacity” at all,9 and a third of patients seen in this context
OF, JQ). Send correspondence and reprint requests to Nicholas Kontos,
may have intact decisional capacity.10 In many of these cases, M.D., Psychiatry Consultation Service, Massachusetts General Hospital, 55
it is suspected that the capacity evaluation request is really a Fruit Street, Warren 605, Boston, MA 02114; e-mail: nkontos@partners.
org
“euphemism for physicians’ frustration in managing some © 2013 The Academy of Psychosomatic Medicine. Published by
patients who are unable to progress smoothly.”10 Elsevier Inc. All rights reserved.

Psychosomatics 54:2, March-April 2013 www.psychosomaticsjournal.org 103

Dilemmas Underlying Capacity Evaluation Requests

count for many unwarranted capacity evaluations. By “un- AUTONOMY VS. BENEFICENCE
warranted,” we refer to evaluations initiated in the absence
of a clearly articulated suspicion as to whether and why Mrs. A, an 80-year-old woman with uncontrolled diabetes
the patient might lack capacity. This is not to say that mellitus complicated by recurrent cellulitis and chronic
psychiatric consultation itself in these cases is necessarily ulcerations of the legs, lives alone and is felt to be medi-
unwarranted (though it may be), but rather that the capac- cally “unsafe” to return home. Psychiatry is consulted to
ity evaluation label is misapplied. assess her capacity to refuse a “safe discharge” plan that
The use of capacity evaluations to address unrelated includes placement in a nursing home.
moral dilemmas may be compelling to doctors because of Conflict between patient autonomy and physician be-
their dual medical and legal nature. Medically, because neficence might initially seem an unnecessary topic for a
these evaluations often fall to psychiatrists, “psychosocial” paper about underlying issues in capacity assessments.
and ethical problems can be effectively outsourced. Fur- Such an assumption would be based on an equating of
ther, psychiatric consultation invokes mental illness and a beneficence with paternalism, of which the latter is not a
disease model that is congenial to physicians but can be contemporary bioethical principle and is usually invoked
unproductive or even harmful.19,20 Legally, consultee and with disapproving tones. Muddling these two concepts
consultant both may hope that any moral quandary that is impedes the negotiation of a physician’s authority when it
transformed into a capacity issue will ultimately be resolved butts up against a patient’s preferences.
by a judge and the “alluring rationality of legal thought.”21
Paternalism exists when a physician believes he or she
In this paper, we offer four prototypical scenarios
“has better insight into the best interests of the patient than
illustrating ethical dilemmas that often trigger unwar-
does the patient”26 and, thus, “makes the medical good of
ranted capacity evaluations. We organize these dilemmas
the patient the only good and subverts other goods to that
using Beauchamp and Childress’22 four principles, or
good.”27 As justifications for clinical action go, paternal-
common moral norms, of biomedical ethics—autonomy,
ism alone cannot supervene intact patient autonomy.
beneficence, nonmaleficence, and justice. While recogniz-
Beneficence addresses the physician’s obligation to
ing that so-called “principlism” has its detractors and is far
pursue the good of the patient; it is the positive counterpart
from the only valid approach to medical ethics,23–25 we
of “do no harm.” However, it ought not explicitly equate
utilize it for two reasons. First, because it is today’s dom-
the good of the patient with medical good.22,26 Health is
inant bioethical framework and, thus, the one most likely
merely the domain where the physician has the greatest
to be familiar to clinicians; second, because it caters well
sanction and skills to promote the good of the patient
to the posing of ethical dilemmas as clashes between two
premises. Ultimately, our format is less important than its directly. Beneficence requires an appreciation of a pa-
use as a stimulus to encourage clinicians about to request tient’s best interests in order for a physician to consider
or conduct capacity evaluations to identify and address how and whether that patient might be served by medical
other relevant moral issues. Values, aggressive urges, and actions. The physician does not hold that appreciation
obligations are among the issues hiding within many un- passively, though, and is obliged to offer respectful coun-
warranted capacity evaluations and which therefore in- sel to patients. Not merely information brokerage, such
form our examples. counsel is especially important when it might challenge
In our four sample ethical dilemmas, the autonomy side patients. Unlike strict paternalism, beneficence can validly
of each one should be presumed to mean intact autonomy. stake out territory when its practice is impeded by another
Unwarranted capacity evaluations seek to dispel, rather than valid principle (e.g., autonomy).
resolve, moral quandaries by removing one variable from the To a degree, these simplified descriptions are self-
equation (i.e., when patients are deemed to lack capacity, serving, setting up paternalism as a straw man to be torn
their autonomy [superficially] can no longer collide with down by beneficence. Nonetheless, for our purposes, they
physician paternalism). In contrast, the problems identified briefly capture two modes of medical decision-making that
below require consideration of two valid premises for ethical can be easily conflated.
conduct in conflict with each other. Lastly, our categories are Errors of authoritative commission by physicians who
not mutually exclusive and, in reality, are rarely pure. Sim- care for “uncooperative” patients can occur when the im-
plification is used here in the interests of illustration and portance of patients’ value systems is paternalistically un-
starting a discussion. der-recognized. In the case above, the consultant learned

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 Kontos et al.

that the patient valued minimization of medical risk less guably entailing harm, but without hostility. However,
than she did privacy and the subjective dignity of living in physicians may more frequently be confronted by temp-
her own home. When health is the end-all and be-all of tations— both conscious and unconscious, personal and
“best interests,” any treatment refusal seems irrational. social31—to gratify unsavory urges stemming from bias,
Many off-target capacity questions stem from these pre- prejudice, having a bad day, and retaliatory fantasies in-
sumptions; confusion can ensue when a consultant then spired by “hateful” patients.32 The foregoing case exem-
finds such a patient to be decisionally capable. plifies the latter in that the team probably wanted to eject
Errors of authoritative omission can occur when phy- the patient; allowing vs. effecting that ejection is a dis-
sicians are so conditioned against being paternalistic that tinction without a difference. Either would gratify their
they do not counsel or challenge patients who act contrary hatred toward him, creating the perception of a harmful act
to their own stated interests.28 While Mrs. A eventually even if discharge is the “right” outcome. The request for a
articulated a clear value system, a physician could still capacity evaluation in a situation like this might actually
discuss with her whether dignity and risk reduction need to be an attempt by clinicians to guard against their inappro-
be mutually exclusive. If a values-based discussion reveals priately acting on (or out) negative countertransference.
and refines an incompletely thought-through decision by a While medical ethics skews toward addressing a nar-
patient, any lingering preoccupation with capacity dissi- row range of nonmaleficence, advice on physicians’ re-
pates, the doctor–patient relationship is enhanced, and the sponses to difficult patients typically comes from psychi-
patient is better served.29 In the course of performing the atrists admonishing physicians against acting on negative
consultation, the psychiatrist will likely initiate this kind of countertransference33 and from generalists’ advice on ne-
dialogue. Accompanying an assessment that reframes the gotiation and relationship-building.34 Left with few op-
ethical landscape of the case, the consultant’s recommen- tions for dealing with recalcitrant patients,35 physicians
dations can point the consultee toward a more thorough- may feel that any gratifying actions taken with them must
going extension of the conversation. be “bad.” Hence, in cases like the one above, where there
More than simply accepting the patient’s surface val- really is no question about Mr. B’s capacity, and where
ues, these discussions require that one respectfully chal- there might not even be any medical advice against which
lenge them (e.g., in terms of their consistency with the he seeks discharge, the pleasure of being rid of the patient
patient’s decisions and actions). A superficial or overly nonetheless feels wrong.
enthusiastic idealization of patient-centered concepts may A capacity evaluation provides an out from this situ-
sometimes inhibit physicians from providing counsel ation but actually distracts from the real matter at hand.
counter to their patients’ stated wishes.30 However, when When skillful and good-faith attempts at engaging difficult
excessive, such inhibition— especially when buttressed by patients fail, providers are unavoidably angered. Capacity
the fallback option of a capacity evaluation—may really evaluation requests under these conditions often involve
constitute “moral abandonment.”27 an against-medical-advice discharge demand or a staying-
against-medical-advice scenario with a patient who is pro-
AUTONOMY VS. NONMALEFICENCE longing or otherwise impeding proper care. In the former
situation, the consultant’s finding of intact decisional ca-
Mr. B, a 42-year-old man with active polysubstance de- pacity provides cover for the combined relief of a cleared
pendence presents to the emergency department (ED) in- bed and a clean conscience. In the latter situation, the same
toxicated and requesting detoxification. Admitted to med- finding might elicit anger directed toward the psychiatrist
icine and placed on an effective detoxification regimen, he who did not provide the desired medicolegal cover for that
becomes hostile and abusive to staff the next morning. He relief.
denies physical distress, demands discharge, and throws a Either way, very little is accomplished by keeping
chair when attempts are made to persuade him to stay. these consultations within a capacity-related ethical frame.
Psychiatry is consulted to assess his “capacity to leave Instead, psychiatrists’ familiarity with managing counter-
against medical advice.” transference can be directed toward acknowledging (with-
The principle of nonmaleficence formalizes the tradi- out psychodynamic jargon) their own and others’ valid
tional injunction that doctors “above all, do no harm.” emotional responses to the patient and avoiding reflexive
Discussions of nonmaleficence typically focus on eutha- responses to them. Consultants and consultees alike must
nasia and withdrawal of life-sustaining care—actions ar- be willing to “think dirty” about patients.36 This means

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Dilemmas Underlying Capacity Evaluation Requests

accepting that some patients work against providers’ ef- parts.41 For our purposes, we apply a noncommittal idea of
forts and their own declared interests. Otherwise, unnec- fairness that simply acknowledges that no doctor or patient
essary capacity evaluations may be the least of several is an island, that our rights are harnessed to obligations to
potential evils that include overt hostility, therapeutic ex- one another, and that today’s clinical medicine can no
cess, and paradoxical indulgence. However, actions that longer afford to divorce itself from public-health and sys-
gratify the negative feelings evoked by such patients, tems-level views of distributive justice.18,42,43
while often impermissible, cannot be categorically taken Problems in the care of so-called “bounce-back” pa-
off the table. tients, whose serial presentations run in parallel with in-
That discharging or challenging hateful patients might eluctable non-adherence, ironically relate to some of the
feel good means neither that these actions are forbidden nobler aspects of medicine—namely, nonabandonment
nor that capacity evaluations are necessary or appropriate and impartiality. While it is naïve to think that true im-
means of obtaining permission for them. Instead, challeng- partiality and unerring steadfastness exist in patient care,
ing some patients’ maladaptive approaches to health and expectations of and among doctors are that these are at
medicine may be an underappreciated ethical impera- least ideals of practice.
tive37,38 that the limited lens of autonomy vs. paternalism Physicians have little leverage with patients whose
renders easy to miss.39 choices and behaviors seem to consume medical resources
unfairly by legitimate exercise of their civil rights (e.g., the
AUTONOMY VS. JUSTICE Emergency Medical Treatment and Active Labor Act of
1986) and reliance on doctors’ moral obligations. In the
Mr. C, a 68-year-old man with chronic obstructive pul- case above, the Mr. C’s frequent hospital presentations are
monary disease presents to the ED with shortness of framed as putative evidence of an inability to care for
breath for the fourth time in as many weeks. Mr. C con- himself. However, Mr. C is caring for himself, after a
tinues to smoke two packs of cigarettes per day and to fashion, in a system that does not obligate him to follow
refuse offers of smoking cessation consultations and ther- medical advice in order to receive medical care. While a
apies. Mr. C has repeatedly left the hospital prior to capacity evaluation may provide a temporary distraction
completion of courses of steroids and antibiotics. His from this awkward truth, it will not provide relief to any of
smoking precludes home oxygen, and he is inconsistently the involved parties. Further, those involved parties in-
adherent with medications. With Mr. C now demanding clude not only doctor and patient but also other patients
admission to “fix my breathing,” psychiatry is consulted waiting for ED or hospital beds, as well as a citizenry
because “he keeps coming back . . . he can’t take care of coping with escalating taxes and insurance premiums.
himself.” These unpleasant realities go largely unaddressed by
Some patients exercise their intact autonomy in an the autonomy-centered ethics and patient-centered medi-
adolescent manner whereby they “behave freely but are cine themes that dominate contemporary medical educa-
repeatedly medically rescued when predictable adverse tion. Even when a rights– duties disparity in the doctor–
consequences ensue.”37 Cumulatively, these patients can patient relationship is acknowledged, the responsible
exact tremendous costs from the health-care system in physician is left with the complex question, “how do we
terms of both resources and morale. Capacity evaluations distinguish between [a patient’s] assumed risk and im-
are sometimes requested when physicians grow weary of posed risk?”44 After all, any given “bounce-back” patient
caring for seemingly intractable over-utilizers of the could be socially disenfranchised in a way that precludes
health-care system. Some physicians may feel pushed to his following good medical advice.45,46 Still, fairness in a
consider the impact on various levels of society (e.g., relationship within a broader social network ought to pro-
hospital, country) of autonomy exercised in an “adoles- hibit the patient from not disclosing those hindrances to
cent” fashion. his providers while continuing to ask for their help.47
Justice is a difficult principle to fix firmly in terms of Reciprocally, physicians should try to bring those barri-
definition and status. Centered on the idea of fairness,40 ers to light. If good-faith attempts to identify and rectify such
the invocation of justice still begs questions about what is problems fail, the patient’s right to care would not be for-
fair.22 For physicians, considerations of justice generate feited. But intact autonomy does not automatically trump
friction, involving as they do intersections between indi- justice-based allowance (if not moral obligation) for the phy-
vidual patients and the social structures of which they are sician to discuss frankly with a patient the impact of his

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 Kontos et al.

behavior in the broader scheme of things, or to consider not derstanding how this term is usually employed. Buchanan
offering treatment options that have repeatedly proven futile. and Brock48 identify the primacy of “respect for individual
As with the other dilemmas discussed here, the psychiatrist’s self-determination” in patient care. Beauchamp and Chil-
work may position him to be the first to notice the indication, dress22 state that autonomy entails, “at a minimum, self-
and have the opportunity to conduct a justice-oriented dis- rule that is free from . . . controlling interference by oth-
cussion with the patient (and consultee). Further, as an “out- ers.” Thus “a person of diminished autonomy . . . is in
sider,” a psychiatric consultant is well situated to introduce some respect controlled by others” (emphasis added). It is
this topic and assess the patient’s cognitive and affective a far reach to fully isolate the “individual” from his im-
responses to it. The perceived threat of a doctor subordinating portant relationships or to lump “controlling interference”
one’s needs to the greater good is diluted by the consultant’s together with ordinary (even desirable) interpersonal in-
advisor, rather than decider, role. fluence, but, as Schneider49 notes, “blunter versions are in
Multidisciplinary and/or ethics committees, rather some ways the more consequential formulations of the
than individual clinicians, sometimes ensure fair deliber- autonomy paradigm.”
ation of particularly high-stakes decisions informed by The same might be said of “patient-centered medi-
justice considerations,16 as with listing decisions for organ cine,” which, when coupled in its “blunter” form with
transplantation candidates. The complexity of sorting atomistic autonomy, can obscure the rights and plights of
through this kind of dilemma explains and illustrates the other stakeholders in a given patient’s medical decision-
inadequacy of transmuting it into a capacity issue. making. Relevant parties include health-care providers and
patients’ family and friends, especially those in caretaking
AUTONOMY VS. AUTONOMY roles. If one allows some room for the idea that “autonomy
entails the capacity to live in an interactive community of
Mrs. D, a 72-year-old woman, has essential hypertension, moral agents,”50 the lives and feelings of others matter,
which, because of longstanding medication non-adher- though how much is a touchy subject.51
ence, is uncontrolled and complicated by kidney disease. Draper and Sorell35 highlight the plight of “captive
She is hospitalized after a third fall in as many months and physicians” who feel constrained by the behaviors of pa-
is found to be posturally unstable. She refuses inpatient tients who persistently seek help while rejecting medical
rehabilitation and her family does not want her to return advice. Patients’ loved ones often find themselves simi-
to their home, even though she owns it. She was recently larly trapped, but with fewer options for liberation and
diagnosed with mild cognitive impairment, but family re- fewer degrees of freedom than have physicians. In the case
ports that she is demonstrating her usual “stubbornness.” above, the patient is making decisions entirely in keeping
That autonomy can ethically collide with autonomy with a lifetime of low valuation of health. Now, however,
may seem a facetious proposition. We argue that this these decisions all but guarantee serious morbidity. One
appearance speaks to the problematically narrow view of could argue that Mrs. D is demonstrating the epitome of
autonomy vs. paternalism that this paper addresses—in adult, atomistic autonomy, fully accepting the personal
this case, demonstrating the ease with which the autonomy consequences of her decisions. On the other hand, and
of persons other than the patient is forgotten. Physicians possibly at the root of the capacity evaluation request is
are disallowed from accepting patient choices made under the unasked question of whether Mrs. D has the right to
conditions of coercion, but what is a physician’s proper impose those consequences on others. By forcing her fam-
response when a patient’s decision creates unreasonable ily to either bear witness to her incurring degrading inju-
restrictions on others’ autonomy? ries unto death, or sever their relationship with her, is she
The concept and preeminence of patient autonomy has restricting their liberties in an impermissible way?
been criticized for its almost exclusive “atomistic” orientation Is Mrs. D just imposing a hard decision for her family
where decisions are seen as necessarily deriving purely from members’ exercise of their own autonomy? Or, do the
the individual. “Relational” autonomy places decisions in a exigencies of emotion52–54 and attachment55 create a sit-
broader context where social influences are important in uation where the family’s choices are so unreasonable and
value formation, decision-making, and consideration of the so unrealistic that one questions whether Mrs. D’s intact
impact of one’s decisions on others.14 autonomy can be truly “respected”? These can be taboo
Paying attention to certain word choices and presump- questions in an individual-oriented society where medi-
tions associated with the idea of autonomy assists in un- cine is increasingly expected to accommodate personal

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Dilemmas Underlying Capacity Evaluation Requests

preferences.56,57 Relative to the other dilemmas discussed these two points as valid, but also as somewhat confusing
above, a clash of autonomies, shunted into the premises and contradictory, especially in view of the unresolved
and mechanisms of capacity questions, seems more often nature of ethical expertise.61– 63 The recognition and—
to lead to findings that patients are “incapable.” One won- when routine—resolution of ethical dilemmas are essential
ders if doctors and judges are bending the letter of the law skills for any physician. Consultation psychiatrists should
to accommodate what Appelbaum, in a different context, not claim unearned expertise in this area but can offer the
calls a “common sense model.”58 benefit of experience-based knowledge in situations asso-
We argue that prematurely taking this path perpetuates ciated with capacity-evaluation requests. We have at-
“blunt” thinking about patient autonomy, allows buck-pass- tempted to stay within these bounds in this paper.
ing to already-overtaxed courts, and is dishonest to all in- Staying within these bounds in practice can be diffi-
volved. The psychiatrist happening upon this sort of dilemma cult. Consultation psychiatrists walk a fine line between
should acknowledge it, hold the capacity question at bay, and demonstrating reasonable credibility in the ethical realm
encourage more forthright transactions among providers, pa- and not embracing the role of “resident ethicist . . . [or]
tients, and families, who all may respond favorably to clari- unit holistic humanist.”64 An “unwarranted capacity-eval-
fication and challenging of the value systems at play. Adult uation request” may not be an unwarranted psychiatric
autonomy, in contrast to the adolescent variety, not only consultation, since other psychiatric issues can be at play
permits, but demands, this kind of honesty. or clarification of the problem itself is reason enough for
consultation. However, the newly revealed ethical di-
CONCLUSION lemma itself is a distinctly non-psychiatric concern for all
involved in the patient’s care.
Observing an increase in capacity-evaluation requests in Thus, we see the psychiatrist’s role as elucidating the
the general hospital and suggesting that misidentified eth- “real” issue, relaying that finding to the consultee, and
ical dilemmas underlie many of them, we utilized “prin- being one (albeit often the first) among many to broach it
ciplism” as a way around reflexive use of the “autonomy with the patient. Involving, as they often do, strongly held
vs. paternalism” template. Our sample dilemmas indulge values, interpersonal aversion, or obligations to others,
autonomy-centric medical ethics to an extent by always these discussions are difficult. Recognizing tensions be-
placing patient autonomy at one pole. Of course, physi- tween patient autonomy and other ethical principles is the
cians face many moral issues not involving patient auton- first step in handling these high-stakes, high-affect inter-
omy, but these sorts of problems generally do not lead to actions responsibly and honestly.
capacity-evaluation requests.
It has been suggested that psychiatrists should not try Disclosure: The authors disclosed no proprietary or
to be “amateur ethicists,”59 and that they approach capac- commercial interest in any product mentioned or concept
ity assessments with an overly legalistic stance.60 We see discussed in this article.

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