EMS, Capacity And Competence

Article Author:
William Gossman
Article Author:
LeeAnne Martin Lee
Article Editor:
Scott Goldstein
8/29/2020 10:22:08 PM
PubMed Link:
EMS, Capacity And Competence


There is often confusion over the meaning of capacity versus competency while providing medical care.  It is an important distinction, in order to best serve the patient and their needs, and to legally protect the EMS provider from legal repercussions. Capacity is the ability to learn, process, and make decisions based on information given. In emergency management services, this means the patient being treated has the capacity to understand the risks, burden (financial and otherwise), and the benefits and alternatives to the proposed treatment (called medical decision-making capacity). Competence is a legal (not medical) term, stating that a court of law has decided whether a person can make their own decisions. A person is competent only as deemed by a court (although a medical person can make an opinion towards this competency). A person has the capacity to make a medical decision based on the real-time assessment. Any emergency management technician or paramedic has the ability, and the duty, to assess each patient's capacity, to best serve the patient's needs.[1][2][3]

Issues of Concern


Competence is determined by a judge, not an emergency management service provider. A known legal incompetence ruling does favor a future lack of decision-making capacity, but a patient may retain his legal "competence" regarding medical matters, even if deemed incompetent regarding, for instance, financial decisions. A legal declaration of incompetence may be global, or it may be limited (e.g., to financial matters, personal care, or medical decisions). A surrogate should be named and have appropriate paperwork in these situations.[4][5][6][7]


Minors can have the capacity for medical decision making, but the age they are deemed eligible to provide this decision varies by state law.  Age may vary by situation, also, as many states allow a minor to make medical decisions at an earlier age if "sexual related," (i.e., pregnancy, STI) or drug use/abuse concerns, or if the minor is legally emancipated, for instance.


A patient may carry a diagnosis of dementia, but still, have the capacity for medical decision making. The diagnosis may prompt the emergency management service provider for a more careful evaluation of capacity, but the diagnosis does not exclude capacity. The emergency management service provider must assess each situation carefully and always default toward beneficence if there is some question.

Each patient has the right to self-determination for medical care, and the refusal of such, as long as they have the capacity to make such decisions (as above). The patient can choose options for their care, and the emergency management service personnel cannot refuse further care based on the patient's refusals. A patient with capacity to decide must have sufficient information regarding the condition and risks, must understand a decision must be made, and understand the risks, burdens, and benefits of the options. The information must be given by the provider, with further information or translation as required for the patient to understand and communicate, and the patient must be free from coercion. 

A patient's legally determined competency can affect the capacity assessment but does not determine it exclusively.

Clinical Significance

Emergency management service providers frequently encounter patients who wish to refuse care or refuse certain procedures or protocols. It is the duty of the emergency management service provider (at all levels), to determine medical decision-making capacity for such refusals. The provider also must obtain informed refusals and informed consent, when possible. The signature on a release form does not guarantee that the provider's ethical or legal obligations are met. Careful documentation of patient education and discussion of risks and benefits is also required. Although a patient has the right to autonomy (deciding their course of actions even if this will result in harm), emergency management service providers must always give the patient the risks, benefits, and alternatives available, to the best ability of the emergency management service provider. This education also needs to be given to the patient in a form readily understood. This may require the use of a translator, in some situations, and always requires the use of common (nonmedical) language, while trying to not sacrifice accuracy. If the patient requires further information, additional personnel, or medical direction, should be consulted.

For emergency management services, criteria for medical decision-making capacity include:

  • Patient must have sufficient information from the provider regarding the medical condition and the associated risks to his health and person.
  • Patient must understand that a decision must be made.
  • Patient must understand the risks, burdens, and benefits of all options, including that of doing nothing.
  • Patient must be able to use the information to make a decision in the setting of his values and belief systems.
  • Patient must be able to communicate his choice to the provider.
  • Patient must be acting without coercion or undue influence, including from family, friend, and providers.
  • It is the responsibility of the emergency management service provider to identify loss of capacity for medical decision making. It is not the patient's responsibility to prove they retain such capacity.

If the emergency management service provider believes a patient does not have decision-making capacity, the patient's best interest, and overall safety must be protected by the use of the best judgment of the provider.  The decision to act in patient's best interest, while he does not have the capacity for medical decisions, is termed beneficence. In some instances, such as acute hypoglycemia, the goal should be to restore their decision-making capacity (give them intravenous (IV) dextrose, or intramuscular (IM) glucagon, or oral glucose solution as clinically indicated), and then complete the informed consent/ refusal process for further care. When we are unable to do so, or unable to do it quickly enough to make critical decisions, we must rely on a surrogate, which raises additional ethical issues. We often rely on the "next of kin" to make surrogate treatment decisions, but this may not always be helpful. A legal relationship does not automatically establish appropriate surrogacy, nor can emergency management services always verify these relationships. The best surrogate is one who knows the patient and knows his wishes and values and makes a "substituted judgment." This is often not available in emergency management so emergency management service providers must default to interpreted beneficence. This makes the emergency management service provider functionally the surrogate in this medical decision. [8]


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