Who Has The Capacity To Consent?

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The premise behind requiring informed consent to be given prior to beginning medical treatment is preserving an individual’s right to be informed of, and agree or disagree to, a treatment or procedure that has been recommended by a medical professional. In order to be considered to be able to consent to such treatment or procedure, a medical professional must cover several topics with a patient that are related to the recommended course of action, including:

(1) The condition being treated;

(2) The nature and character of the proposed treatment or surgical procedure;

(3) The anticipated results from the proposed treatment or surgical procedure;

(4) The recognized possible alternative forms of treatment; and

(5) The recognized serious possible risks, complications, and anticipated benefits involved in the treatment or surgical procedure, as well as the recognized possible alternative forms of treatment, including non-treatment.

Capacity is a requirement to informed consent. Capacity includes the ability to make a choice, to understand relevant information, to appreciate a situation and its consequences, and to manipulate information rationally.

The rules to consent are nuanced. Adults deemed to obtain the requisite capacity have the right to refuse a recommended treatment or procedure, even if the refusal is counterproductive to their own health. In other words, a doctor cannot force a patient to make a decision as that would be considered coercion. Further, it is well within a patient’s rights to change their mind regarding treatment. For example, if a patient, after receiving proper disclosure from the treating physician, decides to undergo treatment, that same patient has the right to stop treatment at any point.

However, in some instances, a physician may disclose all the material that is possible to cover, but the patient may lack the requisite capacity to give informed consent to treatment. A person must be assumed to have capacity unless it is established that they lack capacity. To be considered to have the capacity to the extent necessary to make an informed decision regarding medical treatment, the patient should be able to:

  • Understand the medical treatment that is being recommended
  • Understand why the treatment is being recommended
  • Understand the benefits, risks, and alternatives of the treatment that is being recommended
  • Understand the likely consequences of refusing the recommended treatment

A lack of capacity may exist for many reasons, including: unconsciousness; mental health conditions; learning disabilities; brain damage and intoxication by way of alcohol or drug use.

If it has been determined that the patient is unable to make an informed decision regarding treatment due to a lack of capacity, the treating physician should make all subsequent medical decisions with the patient’s best interest in mind. Best interests include what the patient’s wishes would be if they were competent; the patient’s general well-being; and the patient’s religious beliefs. When it comes to respecting a patient’s religious beliefs, this is particularly important when a blood transfusion is being recommended as a proper course of treatment. Jehovah’s Witnesses hold a strong belief that the Bible prohibits ingesting blood and thus are unable to receive and/or give blood.

Additionally, if the patient is deemed incapable of being able to properly give consent, the physician should make a strong attempt to gain consent from another person on behalf of the patient before proceeding with treatment if at all possible. If an agent was not previously appointed or a conservator has not been put in place by the patient or the patient’s family, the physician should try to bring in a surrogate for the purposes of making health care decisions on behalf of the patient. This person should know about the patient’s condition; be actively involved in the patient’s life; be willing and able to make the decision in an informed manner; and have no conflict of interest with the patient. Examples of such a person include: the patient’s spouse, the patient’s parent or guardian, the patient’s sibling, or a relative of the patient.

If the patient is in need of medical help and the situation is an emergency, the physician is generally excused from needing to obtain informed consent from the patient or a family member since it is likely that any delay would be detrimental to the health of the patient.

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