Do You Know the Difference Between Competence and Capacity?

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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 filmmaking. He is the writer and director of the critically acclaimed Boundary Layer.

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We Discuss:

• What Competence Actually Means in Legal Terms
• Defining Medical Decision-Making Capacity
• Real-Life Dilemmas in Emergency Medicine
• The Right Terminology in Documentation
• What Physicians Get Wrong in Court
• How to Testify Like a Pro
• How to Handle Yes/No Cross-Examinations
• One Legal Nugget You Should Never Forget

Mentioned in this episode:

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Decision Making Capacity Free Template

Need to document decision-making capacity quickly and accurately? I created this free resource so you don’t have to waste time looking up the elements each time. It’s an example of how it can be done—use it as a guide and make it your own.

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