Which statement about determining capacity and competency is accurate?

• A. Capacity can be determined in the ER, and competence can also be determined there.
• B. Competence is permanent and never reviewed in court.
• C. Capacity is determined by the court.
• D. Capacity can be determined in the ER, but competence cannot.

Answer: (D)

Understanding capacity versus competence is about who judges what and for what decision. Capacity is a clinical judgment about a specific decision at a specific time. In the emergency room, a clinician asks: can this patient understand the information, appreciate the consequences, weigh the options, and communicate a choice about the treatment at hand? If yes, the patient has capacity for that decision (and consent can be obtained or treated accordingly). If not, a surrogate may consent on the patient’s behalf, and capacity can change as the medical condition improves or declines.

Competence is a legal determination about a person’s overall ability to manage personal or financial affairs, and it is determined by a court, not by clinicians. It can be challenged or revisited in legal proceedings, such as guardianship cases, and is not something decided in the ER.

Therefore, capacity can be determined in the ER, but competence cannot.