The notion of decision making capacity in medical and legal practice

Background: The relationship between patients and health professionals emphasizes deliberation and joint decision making, that derives in the informed consent. Aim: To evaluate decision making of patients in health care and to identify the notion of capacity for decision making, according to lawyers and physicians. Material and methods. A semi-structured interview about procedures to assess decision making capacity was applied to 2 7 selected physicians and lawyers, considering their experience in this area. A qualitative analysis of answers was performed. Results: Several differences were observed between physicians and lawyers, probably originated in their respective disciplines as well as the context of their professional practice. For physicians the notion of capacity is associated to comprehension of the information, it is not absolute, and it must consider the intellectual maturity of the teenager and the autonomy of the elderly. This evaluation is frequently performed in the clinical interview and standardized protocols do not exist. For lawyers, capacity is established by age and is associated to rights and obligations, as determined by law. When it is assessed by experts, including physicians, it becomes evidence. These professionals assume that experts will use standardized assessment instruments. Capacity has significance in the legal system. Conclusions: Since there are substantial consequences when a person is deemed incompetent, it is necessary to distinguish between health capacity and legal capacity, and to link the informed consent with the fundamental rights of citizens, such as taking decisions about our own health.