Consistently Inconsistent: Does Inconsistency Really Indicate Incapacity?

While it is not explicitly included in capacity assessment tools, “consistency” has come to feature as a central concern when assessing patients’ capacity. In order to determine whether inconsistency indicates incapacity, clinicians must determine the source of the inconsistency with respect to the process or content of a patient’s decision-making. In this paper, we outline common types of inconsistency and analyze them against widely accepted elements of capacity. We explore the question of whether inconsistency necessarily entails a deficiency in a patient’s capacity. While inconsistency may count as primafacie evidence of incapacity—enough evidence to justify a closer look—when making such determinations, it is important for clinicians to slow down, inquire about the reasons underlying the inconsistency and clearly show which of the elements of capacity the patient fails to satisfy.