Disability and the Decisional Capacity to Vote

Bioethics-in-the-News-logoThis post is a part of our Bioethics in the News series

By Devan Stahl, PhD

When Voting Rights Are Barred
With upcoming elections only weeks away, many Americans with disabilities will be barred from voting as a result of state competency and guardianship laws.

Eager to cast his vote in the November elections, David Rector has once again had his voting rights denied by a judge in the Superior Court in San Diego, California. In 2011, Rector suffered brain trauma that left him unable to speak or walk. At that time Rector’s fiancée was appointed to be his conservator and a judge ruled his brain injury disqualified him from voting. According to Rector’s fiancée, Rector avidly follows the news and is informed on political issues. Rector cannot speak, but he uses an eye tracking communication device and can read and comprehend.

Rector’s case is another in a long line of cases where persons who can and want to vote have been disenfranchised as a result of a disability. After protests, a complaint filed by the Disability and Abuse Project, and a DOJ investigation, Governor Jerry Brown signed Senate Bill 589, which changed the standard for voting from the person’s ability to fill out a voter registration document to the person’s ability to express a desire to participate in the voting process. The new law went into effect January 1, 2016, and many presumed Rector would have his voting rights restored. On August 29, 2016, Rector met with a judge and used his electronic eye tracking device to declare “I, David Rector, want my voting rights restored immediately.” The judge, however, was not convinced, saying she needed more evidence that Rector wishes to vote. Even with the upcoming presidential election, there is still no plan by elected officials to reinstate voting rights to the approximately 32,000 conservatees who are currently restricted from voting a result of the original law.

The Current Landscape of State Laws

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Image description: Text on a blue background reads “feel the power of the disability vote.” The words “feel the vote” are in white, and the words “the power of disability” are in red. Image source: Flickr Creative Commons.

Rector’s case is hardly an anomaly. Only 11 states do not have some type of law which disqualify persons from voting because they have a mental disability, although most require a court to determine a person does not have the capacity to vote. In many states, however, individuals with guardians or conservators are routinely barred from voting. A study done by a lawyer working for the Disability and Abuse Project found nearly 90% of persons in L.A. County with conservators had been disqualified from voting. In some states, persons with mental disabilities are asked a series of questions to prove they understand the political landscape, such as knowing who the current governor or mayor is or even why they want to vote or how they will vote on particular issues.

Persons with disabilities, like other minority groups, have historically had their right to vote infringed. The Voting Rights Act allows persons who cannot read or write or have any disability to receive assistance from any person of their choice in order to vote and prohibits tests from being used to deny people the right to vote. Provisions of the Americans with Disabilities Act also ensures people with disabilities have the right to vote and reasonable provisions must be in place to allow them to do so. Requiring persons to have the capability of filling out a voter registration form or answer certain political questions amounts to a reinstitution of the literacy test. In many states, persons with disabilities are being disenfranchised.

Supporters of laws that limit persons with guardians or conservators from voting argue such laws limit voter fraud, because persons with disabilities are vulnerable to exploitation by their caregivers who may pressure them to vote a certain way. There is little data to suggest this is happening and the assertion is generally demeaning when applied to all persons with mental disabilities or guardians. Unfortunately, there are still pervasive stereotypes that persons with mental disabilities cannot express preferences or are universally incompetent.

The appointment of a conservator or guardian, and even the declaration of incompetency is not a measure of whether a person has the decision making capacity to vote. Conservatorships and guardianships help ensure persons have their basic needs, including health and safety, met. Persons with a wide range of conditions, including autism spectrum disorder, traumatic brain injury, and cerebral palsy are awarded guardians. Many persons have limited guardianship, which means they have someone, like a family member, help manage financial decisions, but are perfectly capable of voting and expressing political opinions.

Health Care Ethics and Capacity
In health care, it is common to speak of decision making capacity as the capacity to decide on a particular question or treatment. Capacity is never a universal declaration, rather it is an assessment given by a physician as to whether a person as the capacity to decide something in particular. Mental disability or cognitive impairment never automatically disqualify a person from making important medical decisions. Simply because a person does not have the capacity to make one kind of complicated decision does not mean he or she is barred from making other kinds of decisions.

Unfortunately, courts and laws are rarely so nuanced. Physicians, then, have an important obligation to speak up on such issues. Most physicians, particularly ones who work regularly with patients with intellectual and developmental disabilities, know their patients exhibit a wide range of competencies. The bar for the capacity to vote, as outlined in the Voting Rights Act, should be low. No tests ought to be given and no person should be required to answer a series of questions aimed at proving their political knowledge. Only those who are so incapacitated they are unable to express any sort of opinion should be prevented from voting. Persons like David Rector, Roberta Blomster, and Stephen Lopate who express a desire to vote, should never be denied. Just as with health care decisions, the burden should be on physicians or the courts to prove a person does not have the decision making capacity to vote, not on the person with the disability to prove they do. Those who want to vote should be able to vote, and our medical community should both support and fight for their right to do so.

Devan Stahl photoDevan Stahl, PhD, is an Assistant Professor in the Center for Ethics and Humanities in the Life Sciences and the Department of Pediatrics and Human Development in the Michigan State University College of Human Medicine.

Join the discussion! Your comments and responses to this commentary are welcomed. The author will respond to all comments made by Thursday, October 6, 2016. With your participation, we hope to create discussions rich with insights from diverse perspectives.

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References

  1. 42 U.S.C. Sec. 1973-aa-6 – Voting Assistance for Blind, Disabled or Illiterate Persons. Accessed September 6, 2016. https://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/pdf/USCODE-2011-title42-chap20.pdf
  2. Blood, Michael R. “People with Disabilities Denied Voting Rights, Groups Says,” Associated Press, July 10, 2014. http://www.pbs.org/newshour/rundown/disabled-people-denied-voting-rights-group-says/
  3. Colemen, Thomas F.  “Delay and Denial of Voting Rights in California.” Daily Journal, August 26, 2016. http://spectruminstitute.org/votingrights/daily-journal-op-ed-2016
  4. Colemen, Thomas F.  “Voting Rights of People with Developmental Disabilities: Correcting Flaws in the Limited Conservatorship System, May 25, 2014. http://www.disability-abuse.com/conferences/voting-rights-of-conservatees.pdf
  5. Complaint at 42 U.S.C 1973aa, 42 U.S.C 1973aa-6, 42 U.SC 12132, 29 U.SC 794(a), Spectrum Institute v. Los Angeles Superior Court,” filed July 10, 2014. http://disability-abuse.com/doj/complaint.pdf
  6. “Disabled California Man Seeks to Have Voting Rights Restored.” Aug 24, 2016. http://www.cbs8.com/story/32827542/disabled-california-man-seeks-to-have-voting-rights-restored
  7. Fessler, Pam. “Disabled and Fighting for the Right to Vote,” National Public Radio,  September 4, 2016. http://www.npr.org/2016/09/04/492430780/disabled-and-fighting-for-the-right-to-vote.
  8. “History of Voting Rights,” MassVote, 2013. Accessed September 6, 2016. http://massvote.org/voterinfo/history-of-voting-rights/
  9. Larson, Aaron. What is a Conservatorship” Expert Law, August 20, 2016. http://www.expertlaw.com/library/estate_planning/conservatorship.html
  10. Leonard, Kimberly. “Keeping the ‘Mentally Incompetent’ From Voting,” The Atlantic, October 17, 2012. http://www.theatlantic.com/health/archive/2012/10/keeping-the-mentally-incompetent-from-voting/263748/.
  11. Neil, Martha. “DOJ Investigates California Court Restrictions on Voting by Intellectually Disabled Persons. ABA Journal, May 22, 2015. http://www.abajournal.com/news/article/doj_investigates_california_court_restrictions_on_allowing_intellectually
  12.  “Restored Voting Rights Sought for California Disabled People,” Newsmax, September 6, 2016. http://www.newsmax.com/US/US-Disabled-Voters/2016/08/23/id/744795/
  13. SB No. 589.736 – Voting: Voter Registration: Individuals with Disabilities and Conservatees. October 10, 2015. http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB589
  14. “Ten Myths About Decision-Making Capacity” A Report by the National Ethics Committee of the Veterans Health Administration. September 2002. http://www.ethics.va.gov/docs/necrpts/NEC_Report_20020201_Ten_Myths_about_DMC.pdf.
  15. U.S. Department of Justice Civil Rights Division, “The American Disabilities Act and other Federal Laws Protecting the Rights of Voters with Disabilities,” September 2014, https://www.ada.gov/ada_voting/ada_voting_ta.htm.
  16. “Victory! New Voting Protections for 50,000 Californians Living with Disabilities,” Oct. 10, 2015. https://www.aclunc.org/news/victory-new-voting-protections-50000-californians-living-disabilities.

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29 Responses to Disability and the Decisional Capacity to Vote

  1. Patti J. Magyar, RN, MSN, JD says:

    A law barring voting right automatically based on Conservatorship status, without a competency hearing, is unethical and lazy law making! This specific gentleman should be physically accomodated, as needed, and these laws need to be changed! Such law is presumptive and insulting to very capable human beings. State Legislators: please protect the rights of your very capable constituents!

  2. Devan Stahl says:

    I agree Patti, thanks for your comment. This survey is a few years old now, but for those interested, check to see how your state laws affect the voting rights of persons with disabilities here: http://www.bazelon.org/LinkClick.aspx?fileticket=-Hs7F_Ohfgg%3D&tabid=543
    If you disagree with how your state handles voting rights, write to your elected officials and let your voice be heard.

  3. Brittany King says:

    Hi Dr. Stahl,

    You make an excellent point when you say that the burden of proving an individual is unable to vote should lie with physicians and the court rather than the individual having to make a case for themselves. As it is with the concept of “innocent until proven guilty”, so it should be in this issue: “given the right to vote until proven incapable.” It is important that the medical community take an active part in advocating for these individuals, as they are often unaware of or do not have access to the appropriate resources to make their voices heard. Leaders in medicine must make this a priority when they encounter patients who have guardians. Voting is one of the most basic rights in America, and if an individual expresses a desire to vote, they should be able to.

    • Devan Stahl says:

      Thanks Brittany, I hope to make more clinicians aware of these laws so they can become advocates for their patients and help them to access the information they need to vote. Clinicians are in a unique position to understand and assess the capacity of their patients and help the public to understand why such laws are harmful.

  4. jennacholmes says:

    “Requiring persons to have the capability of filling out a voter registration form or answer certain political questions amounts to a reinstitution of the literacy test.”

    I couldn’t agree more! As a social work student who has worked with children and adults with moderate to severe cognitive impairment, it was disheartening to read about the inappropriate benchmarks for persons with disabilities who wish to vote. Students are often able to use technology and audio visual aids to voice their needs and choices, often with a strong understanding of the context and consequences of their decision.

    There are several reliable and valid cognitive assessment tools that can be used to assess an individual’s functioning. Although none of them focus specifically on politics or voting, they provide a good snapshot of a person’s self-awareness, interests, and concerns. This seems a better test of voting capacity than filling out a voter registration form.

    Too often I saw people underestimate the abilities of the students I worked with. I fear that by not allowing those with cognitive impairment to vote, it will further society’s perception that cognitively disabled people are lazy or incapable. Worse yet, it may perpetuate that belief in those people themselves.

    • Devan Stahl says:

      Thanks Jenna, given your background your voice is important in this conversation. Unfortunately, the stigma surrounding disability remains in our culture and far too many people underestimate the abilities of persons with impairments. The ADA requires accommodations like the ones you have mentioned, but such accommodations are routinely ignored. We need more people like yourself advocating for both accommodations and a change in the social perceptions of persons with disabilities.

  5. Paige Moore says:

    Hi Dr. Stahl!

    I sincerely enjoyed reading this article especially given the fact that I did not know these problems persisted for the disabled in our country. In the mainstream news you hear a lot about fear of voter fraud especially with recent laws and restrictions that are aimed at minorities. However, the disabled are never really mentioned in those arguments. As with a lot of voter fraud arguments, there is not sufficient enough evidence to point to this being a regular phenomenon, a point that you mentioned in your article regarding caregivers.

    I just recently filed for my absentee ballot for this upcoming November election. On the form there were multiple explanations given as to why you were not able to be in your precinct on the day of the election. One was that you were not physically able to or that you were elderly. There is a large portion of the older adult population that are suffering from mental decline, however you do not see our courts asking for proof that they are mentally capable of voting. If we allow older adults, which do have the right to vote, but may have dementia or other forms of cognitive decline, why is that the disabled are having their rights taken from them and are having to prove their mental capabilities in a court of law?

    Thanks for the blog post, and for a thought-provoking topic!

    • Devan Stahl says:

      Hello Paige,
      Thankfully, a diagnosis of dementia does not automatically disqualify people from voting. There appears to be a perception that anyone who qualifies for a conservator or guardian cannot make any decisions on their own, which is untrue in many circumstances. Since such folks have already had to go through the court system to obtain a guardianship, they are easy targets for having their voting rights stripped. Hopefully, we can start a larger conversation about the stigma attached to disability and our culture’s misunderstanding of the decisional capabilities of persons with impairments.

  6. Karah Ley says:

    Thank you Dr. Stahl for bringing light to this ethical concern and I strongly support your stance. Being a social work student, as well as a disability advocate, this type of voter discrimination is very disheartening to hear.

    My older brother is on the more severe side of the autism spectrum and is non-verbal; therefore with his cognitive status he has never been able to display interest in voting. However, if he did, I would expect with his rights being protected under the Voting Rights Act and Americans with Disabilities Act that accommodations would be made for him. Unfortunately, reality shows that this is not the case. Instead, this social injustice is just another added layer to the many oppressive obstacles that people with disabilities have to face every day in our society.

    My biggest concern is why are these policies not being consistently enforced? Why are these individuals who want to vote not given the opportunity or chance? I am afraid that I know the answer… Stigma and discrimination. And as a social work student and disability policy advocate, it is unacceptable to accept this.

    • Devan Stahl says:

      Hi Karah, thanks for your input. I am also dismayed when the federal protections afforded to persons with disabilities are so routinely ignored. Unfortunately, this is all too common, and I’m afraid your correct that its likely in large part due to stigma and discrimination.
      If you have not checked it out, Professor Rosemarie Garland-Thomson has written a wonderful piece for the New York Times about the disability pride movement, which can be found here:
      http://www.nytimes.com/2016/08/21/opinion/sunday/becoming-disabled.html?partner=IFTTT&_r=1
      It has garnered a lot of response!

  7. Mallory Brettrager says:

    Dr. Stahl,

    I’m really amazed by this. When you think of a population with disabilities you tend to not think about their basic rights being taken away, well at least I don’t. So thank you for shining light on this topic.
    It makes me think of a movement I saw on social media yesterday. A good friend of mine is deaf and is usually pretty vocal about a lot of issues she faces in her day to day life. How to she has to really fight for proper communication channels so she can participate in a majority of the aspects of her life. Yesterday there was a movement throughout the deaf community sharing their struggles with the hashtag Hearing Privilege.
    Overall, I’m just really shocked about this issue and hope that there are some strong advocates going to bat for this population. Thank you for again for making me away of such a shocking issue.

  8. Mallory Brettrager says:

    Dr Stahl, (sorry is this is my second comment my computer is acting up)

    I found this whole post really shocking. It really is an issue that I wasn’t ever aware of. It’s amazing that a whole population can be discriminated in such a huge way.
    I think there are a lot of people with disabilities who really have to fight for everything in their lives. A friend of mine is deaf and she really has to fight to have proper communication channels wherever she goes. I can’t imagine how exhausting that must be.
    I was also really shocked by the statistic that 90% of the population in LA can’t vote. When you say 90% do you mean the entire community or the disabled community?

    Thank you for shinning some light on this topic. I really hope eventually these issues can be brought to an end

  9. kaeshona austern says:

    As I was reading this post I kept thinking about that Late Show bit where someone goes out on the street to ask people simple questions such as “who is the vice president?”. Inevitably an astounding number of people are not able to correctly answer these questions. If everyone were questioned prior to being awarded the right to vote such as is done in some states with persons with mental disabilities, how many people would be barred from the polls? Or, if understanding the political landscape, such as knowing who the current governor or mayor is or being able to articulate why an individual wants to vote is going to be used as a threshold to prove intellectual disability, there would certainly be a huge rise in the number of intellectually disabled individuals in this country!

    Current policies regarding the rights of disabled individuals to vote strikes me as blatant and purposeful discrimination.

    • Devan Stahl says:

      Good point Kaeshona, a sizeable portion of our electorate might not be able to correctly respond to the kinds of political questions that are supposedly being asked of some persons with disabilities in our country. There has always been debate about whether or not voting is a constitutional right, but I think there are compelling reasons to think it is:

      http://www.theatlantic.com/national/archive/2012/09/voting-right-or-privilege/262511/

      Of course, it would be nice if every voter was informed about the persons and issues they were voting on, but if voting is a right and if we think the remaining provisions of the Voting Rights Act are important, we ought not to subject voters to quizzes.

  10. Chelsea Hoffmann says:

    First, I find it hard to believe the Judge that denied Mr. Rector the right to vote in the upcoming election would have her decision swayed even if he proved through other tests that he is competent enough to vote and is well informed and up to date on politics (though I don’t think he should have to be put through these tests in the first place). He clearly proved through a test in court, under oath, with his Fiancee there to verify his statements, that he is an informed citizen and deserves the right to vote. From where I’m standing, it sounds like the Judge had already made up her mind before Mr. Rector even came into the courtroom. I would like to see this Judge’s record on rulings similar to this one to see if there is a pattern in her decision making.
    Second, it is a real shame that persons who have disabilities are being denied their right to vote, and that they are being forced to prove that they are capable of making a well informed decision. Chances are there are a lot more people out there, who are not labeled as having disabilities, that are less politically informed that Mr. Rector, who are still allowed to vote. These people have not had to prove that they are competent of making an informed decision that is their own and not based on other’s opinions. Just because someone has a disability does not mean that they cannot think for themselves and make informed decisions. People live with disabilities, they are not their disability.

    • Devan Stahl says:

      Chelsea, thanks for your comment. I wasn’t at this court hearing and I can only comment on what information I was able to read, so I don’t know the rationale of this judge, but yes I agree from the reports the ruling seems odd at best. Perhaps more information will come to light and more people will protest these kinds of laws and rulings.

  11. Zoe Cutie says:

    Hello Dr. Stahl,
    “The bar for the capacity to vote, as outlined in the Voting Rights Act, should be low. No tests ought to be given and no person should be required to answer a series of questions aimed at proving their political knowledge.”

    As a social worker I completely agree with you, once you become of age and are capable of making a decision you should be able to vote. If there is to be any questions asked to people with disabilities to prove their political knowledge, it then also be applied to the entirety of the voting populous as well to be fair to all.

    I am glad that you believe that as physicians it is your obligation to speak up on this issue! I am curious if you have any specific ideas about how physicians can make a change surrounding this ethical dilemma? As a social worker, advocating for clients is one of the most defining aspects of the profession, and I’m curious as to how someone in a different profession would handle advocating for their clients.

    Thank you!
    Zoe

    • Devan Stahl says:

      Thanks for your comment Zoe. Since physicians are already routinely asked to evaluate the decision making capacity of their patients, I think they could be advocates in the courtroom and as public spokespeople. As social workers, I’d be curious how do you and other advocate for your patients?

      • Zoe Cutie says:

        Well it really depends on the situation and what would be most beneficial, and what resources are available to us as well. It could be something as simple as providing counseling services to talk through the frustrations and feelings the client is experiencing, to helping the client get into contact with a lawyer or legal help. Or it could be something like advocating to law makers or raising awareness for the issue to organizations that have an interest in the issue as well. There are many different things that a social worker does to help and advocate for clients and it really just depends on the individual situation!

  12. Thanks for this article, Dr. Stahl. This is a valuable reminder of how important it is to be thinking about what constitutes capacity and humanity. You bring up a great point about physicians speaking up on behalf people with intellectual or physical disabilities. I have taught many excellent students with disabilities and I believe the U.S. will be a greater place when more of their votes are counted.

    • Devan Stahl says:

      Thanks Professor Payne, those of us in academia should also feel obligated to advocate for our students and encourage them to be outspoken about their rights in this country.

  13. Anne Osgood says:

    Hello Dr. Stahl, thank you for writing about this topic. in voting seasons, like we are experiencing now, I am always surprised by how many people are unaware of different populations being denied the right to vote or of f different types of voting fraud or discrimination at the polls. I remember my Civics class from 9th(?) grade in high school, which seems overly simplistic now that we see how many states have different limits on people with disabilities, or felons, or even whether or not someone can vote without a straight ticket. I know your post is about physicians’ responsibilities to their patients in advocating for their rights, but the overall tone of this topic to me reflects at how many injustices still exist in voting. Many accounts on various social media platforms share stories about people being barred from polls, or not having enough ballots and shutting down early, and recently some photos circulating of old voter’s registration cards, giving the right to vote to literate African Americans and poor whites who did not own land. It is important to recognize that living with a disability or a felony does not remove a person’s citizenship, and I am glad to see that physicians recognize that they can play a part in righting this wrong.

    Thanks,
    Anne Osgood

    • Devan Stahl says:

      Thanks Anne, you make a good point. Of course it is not only persons with disabilities who are marginalized in the voting process, though perhaps the issues I brought up are not as widely discussed in the media. Ideally everyone in our country should have the opportunity and accessibility to vote. We should continue talking about these issues so that those who didn’t learn about them in civics class (or have forgotten) will realize there still exists many barriers to voting in our democracy.

  14. Virginia Vasquez says:

    Thanks for bringing this issue to light. I never really thought about this issue, prior to reading this post. I am surprised even with a new ruling that individuals with disabilities are still bringing denied the right to vote. I agree that physicians should be the ones to decide that an individual is not competent enough to vote. I am curious as to know when they would make this type of decision. Would they make this decision when they are stating that an individual is not competent enough to make their own decisions? When they request guardianship? Or would they make this decision during an office visit? I am glad you are requesting that the physicians get involved because these are the individuals who work directly with the disabled individuals. They can determine what level of competency their clients are. Do you think if a physician request the decision to be over ruled for David Rector, that it could change the judge’s decision? Thanks again for bringing this dilemma to the forefront. I think this is very important to note, especially with this presidential election right around the corner.

  15. Devan Stahl says:

    Good questions Virginia. Traditionally, physicians will review the decision making capacity of patients in their hospital or clinic if they have reason to believe the patient is not capable of making medical treatment decisions for him or herself. Physicians are also called upon, however, to make judgments about persons who are signing legal documents, such as estate wills, if there is question about the persons ability to understand what they are signing. Persons who are requesting conservators or guardians do not necessarily need a physician to say they have a certain level of mental or physical capacity as this is a decision made by the court system. It would not be unheard of, however, to gather testimony from a physician who can speak directly to a person’s capacities, especially if the conservatorship is being granted because diminished mental abilities.

  16. Tori Jeffries says:

    Hello Dr. Stahl,

    So my thoughts pretty much accompany a lot of other responders and seeing that so many of us (social workers especially, all professions included) have the same opinion, there is a lot that can change if we actually take the time to put action into our awareness of this issue regarding people coping with disabilities and their voting rights. In my opinion, their voting rights are our voting rights because we all matter and make a difference together. How can you actually ask someone “why they want to vote” and even worse “how they will vote” – shouldn’t anyone’s political views be personal, unless that person wanted to share that information? It’s a right, why should you have to give any reasoning for something that is a right to you.

    Honestly, I feel like this is just another reason to limit anyone from voting and expressing their political views. People should never be denied the right to vote just because they have a developmental disability, this does not give fair judgment to their actual competency at all.

    Also, I would like to think that medical research done by many physicians influence and reflect in the “competency level” of the voting laws for disabled people. Not all medical research is 100% correct and this is another reason why these laws should be reevaluated, taking into consideration more the actual competency of someone coping with a disability, rather than focusing on the “incompetence’s” of a person coping with a disability. Dr. Stahl, I am curious to know more about how medical research effects the laws of just people in general, but especially our disabled population and their right to vote? How is incompetency measured? Who is contributing to this research and decisions? Just a thought – very insightful blog by the way, the more we are aware of these kinds of issues, the more we can speak up about them.

    Thank You,
    Tori Jeffries

  17. Devan Stahl says:

    Hi Tori, thanks for your thoughts and questions. As far as I know the state laws barring people with guardians and conservators from voting have nothing to do with medical research, it’s merely a presumption made by legislators that such persons do not have the mental capacity to vote. Physicians are required to measure the decision making capacity of their patients when there is question about that particular patient’s capacity to make a particular decision about a particular medical treatment. These are physician judgments based on the particular physician’s experience and ability to measure decision making capacity. Such judgments also have nothing to do medical research per se. In addition, there is not one standard used by physicians to determine capacity. In general, patient’s who are being asked to make treatment decisions should (1) make and communicate a choice (2) understand and appreciate the medical information (3) make decisions consistent with their own values and goals, (4) their decisions shouldn’t be the result of delusions, and (5) the patient should use reasoning when making a choice. (From, Bernard Lo, Resolving Ethical Dilemmas: A Guide for Clinicians, 5th edition. Philadelphia: Lippincott, Williams & Wilkins, 2013. 79.)
    I imagine similar standards are used when determining if persons have the capacity to make other kinds of legal decisions (such as estate wills) though the laws generally only say something like, the person is ‘of sound mind’ which is not defined legally.
    The bar for the decisional capacity to vote, however, ought to be lower than the decisional capacity to make a life or death treatment decision or perhaps even the ability to execute a will of one’s estate.
    At present, I don’t know what that standard would be to determine if someone has the decisional capacity to vote. Perhaps some of you have ideas or guidelines you think should be used?

    • Patti J. Magyar, RN, MSN, JD says:

      I agree, Dr. Stahl, that the decisional capacity for a mentally disabled individual should be relatively low. An election vote is not a life or death decision or one directly impacting a US citizen’s personal financial safety. Some may argue the latter is at stake with political elections, but others may argue that even allegedly “informed votes” are not and perhaps cannot ever be fully informed given the media filter to which we are all subjected. And it would be scary to venture to what extent the average “informed” American adult with decision-making capacity looks hard and takes time to access more objective reviews of candidates and their positions held on issues.

      The tricky aspect is that even elderly people with dementia can have periodic and for some and especially early in their disease, may have long term moments of lucidity. When fluctuating lucidity is in question, the reliability of the person becomes trickier. However, people with mental health disorders can be well-managed when on medications or have other evidence of prolonged clarity in mentation.

      It would be interesting to learn what the probate courts have determined as an acceptable threshhold; but because of this being a state-based law or standard, it would be a weighty undertaking to compile every state’s informally established standard, if any. And, alternatively, there may not be many cases “on the books” in this regard. Perhaps this among some other difficult topics begs the question of a national standard.

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