Capacity and Consent in Health Care

By: Janet A. McSharar

When delivering medical or nursing care and treatment, it is imperative for the practitioner to determine the patient’s capacity to consent to the recommended health care and treatment.  A patient cannot consent to health care and treatment if the patient is not competent to give informed consent.  If the patient is not competent, it must be determined if the patient has appointed an alternative decision-maker and if so is that alternative decision-maker available.  If no alternative decision-maker has been appointed or the appointed decision-maker is not available, is there someone else who can consent to the necessary medical or nursing care?


Indiana law recognizes a person’s right to consent to health care if the individual is an adult, an emancipated minor, a 14-year-old person under certain circumstances, or a 16-year-old female under certain conditions involving pregnancy, birth, and labor.  Ind. Code §§ 16-36-1-3(a) and 16-36-1-3.5(b).  The ability to consent to the provision of medical care and treatment includes the ability to withhold consent to medical care and treatment.  Indiana law defines health care as any care, treatment, service, or procedure to maintain, diagnose, or treat an individual’s physical or mental condition.  The term includes admission to a health care facility.  Ind. Code § 16-36-1-1.

If you can consent to health care, you may appoint another to consent to health care on your behalf.  Ind. Code § 16-36-1-7(a).

But you must have the capacity to consent to either health care or the appointment of an alternative decision-maker to make those determinations. 

How is capacity determined?

Capacity is something of a legal term of art, but the determination of whether an individual has the capacity or competence to consent to health care is made by health care professionals.  Competence means having sufficient knowledge, judgment, skill, or strength to perform a given task.  So, a health care practitioner must determine if the patient has sufficient judgment and perhaps insight to understand his or her condition and to understand the nature of the recommended health care and treatment.  A practitioner can only provide informed consent to someone who is capable of understanding the nature of the condition to be treated and the risks and benefits associated with the recommended treatment. Only a competent person can give informed consent.

An incapacitated person is one who is unable to manage in whole or in part the individual’s property; to provide self-care; or both; because of insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others on the individual, or other incapacity, or has a developmental disability.  Ind. Code § 29-3-1-7.5(2) and (3). 

While some of the conditions rendering an individual incapacitated are self-evident, it requires a medical professional to determine if an individual’s incapacity is due to insanity, mental illness, mental deficiency, physical illness, and infirmity.  A person in a coma is probably presently incapacitated and thus unable to consent to health care but when that person awakens, he or she may regain the capacity to consent to health care, thus incapacity is not necessarily permanent.  Regardless of its duration, capacity or competence is determined by a physician or other qualified care giver. 

When we bring petitions for the appointment of a guardian over a resident in one of our client’s nursing homes, we obtain the resident’s attending physician’s written opinion on the resident’s present physical and mental condition(s) and the physician’s determination of the resident’s ability (capacity) to understand his or her present and future health care needs, care, and treatment.  If the attending physician determines the resident lacks the capacity to understand his or her health care needs, the resident is, unfortunately, incompetent to consent or withhold consent to health care. 

In the long-term care setting, nurses conduct initial and periodic assessments of nursing home residents to determine the resident’s then present physical and mental condition(s).  One of the nursing assessments conducted is measuring a resident’s cognitive abilities and from this assessment we can make a fairly accurate determination of whether the nursing home resident has the ability to consent or withhold consent to health care.  But nurses are not qualified to determine competence on their own and a physician’s input is necessary to convince a Court of a nursing home resident’s competence or incompetence to consent or withhold consent to health care.


Both state and federal law recognize an individual’s right to consent or withhold consent for health care is to be honored and protected.  The right to determine one’s own course in life is to be observed and protected and that includes not only the right to consent or withhold consent to health care, but also the right to appoint a surrogate decision-maker for those instances whether temporary or permanent when a individual lacks the capacity to consent or withhold consent to health care. 

Physicians and other health care providers are required to make a reasonable inquiry as to the availability of others who can provide consent to health care for a patient who is incapable of consenting. The health care provider must attempt to contact the appropriate persons to provide consent.  Ind. Code § 16-36-1-17. 

There are a variety of alternative decision-makers such as a Guardian, a Durable Power of Attorney or a Health Care Representative.  Alternative or surrogate decision-makers must be appointed by an individual when that individual has the requisite capacity to make the appointment and the appointment must be in writing, witnessed by an adult, and may specify the authority delegated to the surrogate or alternative decision-maker.  Ind. Code § 16-36-1-6(a).  The authority conferred upon a surrogate decision-maker may be revoked.  I.C. § 16-36-1-6(c).

If no alternative decision-maker has been appointed, Indiana law identifies those who are acceptable alternative decision-makers.  Ind. Code § 16-36-1-5.  Appropriate alternative decision-makers are:



Adult Child


Adult Sibling


Adult Grandchild

The Nearest Other Adult Relative in the Next Degree of Kinship

An Adult Friend Who Has Maintained Regular Contact with the Individual and is

Familiar with the Individual’s Activities, Health, and Religious or Moral Beliefs

Religious Superior.

This list represents the legislature’s preferred priority of alternative decision-makers in the event there is no written appointment of an alternative decision-maker.  This list represents also the legislature’s belief of the person closest to the incapacitated patient and who would have the best chance of knowing what the patient would want done if the patient was capable of speaking for him or herself.  Thus, the priority list captures the spirit and the essence of the well established and cherished right to determination of one’s own health care.  The health care professional must attempt to contact the appropriate alternative decision-maker on this list before rendering all but the most urgent or emergent health care.