157. Do You Know the Difference Between Competence and Capacity?

How can a person who’s clearly lucid still be deemed incapable of making their own medical decisions? The answer lies in the misunderstood yet critical distinction between competence and decision-making capacity. While these terms are often used interchangeably in clinical settings, they carry vastly different meanings in law and medicine—differences that can determine whether a patient is treated, restrained, or left alone. In this episode, we explore how doctors can (and should) assess capacity, the legal boundaries of competence, and how not to get destroyed on the witness stand. Finally, we unpack a story involving a dog, a scrotum, and a tour of Colorado’s emergency departments.

Guest Bio: Rich Orman began his legal career as a public defender before moving into private practice. He soon joined the district attorney’s office, where he spent most of his career and ultimately rose to the position of deputy district attorney. Over three decades in the courtroom, he tried some of the most complex and high-profile cases in the state. After retiring from law, Rich turned to documentary filmmaking. He is the writer and director of the critically acclaimed Boundary Layer.

 

We Discuss:

What Competence Actually Means in Legal Terms

• Competence is a legal designation, not a clinical judgment, and typically must be decided by a judge, not a physician.
• It refers to a person’s legal ability to perform specific acts: stand trial, testify, manage finances, or make contractual decisions.
• Judges use jurisdiction-specific criteria to determine competence, such as whether a defendant can understand proceedings or assist in their defense.
• A person may be deemed incompetent to testify if, for example, they’re a child who cannot distinguish truth from falsehood or an adult with severe cognitive impairment.
• While some jurisdictions may allow physicians to initiate an evaluation, the final determination of competence almost always rests with the court system.

Defining Medical Decision-Making Capacity

• Decision-making capacity is a medical evaluation, often made by a physician at the bedside or in ongoing clinical care. It determines whether a person can understand medical information and make a reasoned decision.
• In California’s probate code, the capacity to give informed medical consent includes the ability to: respond knowingly and intelligently to questions about treatment; participate in decision-making through a rational thought process; understand the nature and seriousness of the illness or condition; understand the proposed treatment, its risks and benefits, and its duration and likelihood of success; understand the consequences of not receiving treatment; understand the risks, benefits, and nature of reasonable alternatives.
• A helpful simplification is that Medical Decision-Making Capacity is the comprehension of options, awareness of consequences, and understanding of risks and benefits.
• However, a rational thought process remains essential. A person may understand the facts but still lack capacity if their judgment is impaired due to mental illness.

Real-Life Dilemmas in Emergency Medicine

• Emergency physicians frequently navigate gray zones where a patient appears mentally intact but refuses life-saving care.
• One case involved a patient with a known life-threatening arrhythmia who understood the risk of death and still chose to leave; he was not suicidal and clearly understood the implications.
• These moments are ethically difficult. Doctors may strongly disagree, but if the patient meets capacity criteria, their decision must be respected.
• Physicians are often tempted to override patient wishes when the stakes are high, but respecting autonomy is essential, even when the choices feel irrational.

The Right Terminology in Documentation

• Document using the term “medical decision-making capacity” instead of “competence” when writing notes.
• Competence implies a formal legal judgment that physicians are not authorized to make.
• Capacity is the correct, medically grounded term and reflects a clinical assessment based on the patient’s current mental status, understanding, and rationality.
• Misusing the term “competent” in the chart can create legal confusion and potentially undermine care decisions if challenged in court.

What Physicians Get Wrong in Court

• Most physicians called to testify in legal cases lack preparation, especially when testifying as treating clinicians rather than paid expert witnesses.
• Common issues include assuming that legal professionals and jurors understand medical jargon, which creates a communication barrier, and appearing defensive or arrogant, which damages credibility and rapport with the jury.
• Attorneys often don’t care about a doctor’s medical authority. They focus on inconsistencies and misunderstandings.
• Many physicians are shocked when their own charts are scrutinized and twisted to support a different narrative in court.

How to Testify Like a Pro

• The best physician witnesses, like forensic pathologists, present clearly, avoid jargon, and are skilled at reframing questions.
• Good testifiers don’t just answer. They guide the conversation when needed, saying things like: “That’s not the question you mean to ask. Let me clarify.”
• Attorneys use leading questions to corner witnesses into binary responses that support their legal argument, even if the medical reality is more nuanced.
• Preparing means knowing where the attorney wants to take the narrative and staying clear-headed enough to navigate around it.

How to Handle Yes/No Cross-Examinations

• Yes/no questions can be deceptively simple; they’re designed to trap witnesses into false dichotomies.
• If the answer isn’t truly yes or no, say so: “I cannot answer that with a simple yes or no.”
• Many states require physicians to testify “to a reasonable degree of medical probability,” which can feel foreign to clinical reasoning, but it’s a legal necessity.
• Doctors must learn how to provide medically accurate answers within the constraints of legal language—without getting flustered or adversarial.
• Maintaining calm, professional demeanor, even with hostile attorneys, is crucial for credibility.

One Legal Nugget You Should Never Forget

• Never say or imply “I’ll take your word for it” when an attorney references something in your chart or medical records. This response can be exploited in cross-examination, making it seem like you’re unsure or careless.
• Always request to see the medical records yourself before confirming or denying what they say.
• Judges control the courtroom—not attorneys—so you’re well within your rights to request your documents at the stand.
• This small move can prevent major missteps and protect your professional integrity.