The Statutory Codification of Decisional Capacity Standards.

Abstract

The adoption of the widely used four specific skills model of decisional capacity assessment, first proposed by Appelbaum and Grisso in 1988, has become widely accepted in clinical practice. Many jurisdictions have, through legislative action, incorporated one or more of these skills into state law as part of the legal definition of decisional capacity. These statutes pose a challenge for physicians hoping to revise these criteria, as some commentators have recently proposed. This article categorizes and analyzes existing state statutes that define decisional capacity or designate certain classes of individuals to render such assessments. Many of these statutes incorporate aspects of the four skills model into state law, such that legislative action would be required to affect significant changes in methods of capacity assessment. As a result, physicians in many jurisdictions are unable to modify these criteria on their own. Any effort to alter capacity assessment standards will have to take into account the potential challenges to enacting statutory change at the outset of such efforts.