Consent is a legal-medical doctrine which stems from the common law tort of trespass, notions of due process, and various court cases of note; including Schloendorf vs. New York Hospital, the Nazi War Crimes Tribunal (Medical Cases), Cobbs vs. Grant, and Reise vs. St. Mary’s Hospital. Consent respects the autonomy of the individual and is fundamental to medical ethics. Consent is a legal doctrine. Its elements are: (1) disclosure; (2) voluntariness; and (3) competence. It is not absolute. Exceptions to consent include: (1) emergencies; (2) patient requests not to be informed; and (3) “therapeutic privilege.” Consent is also a therapeutic tool that empowers the patient, promotes autonomy, helps identify conflicts, divulges side effects, provides clues to idiosyncratic beliefs and previously unreported symptoms, and opens up channels of communication.
Capacity is a purely medical determination of the integrity of the mind. It assesses: breadth and clarity of consciousness, stability of attention and intention, adequacy of general orientation, ability to store and recall accurate memories, level of intellectual functioning, critical judgment, and interferences from mental disorders. Decision-making capacity is also a medical determination. In the actuality of clinical practice, determination of decision-making capacity is part of every doctor-patient interaction. Its impairment can be looked upon as a symptom as well as a legal threshold. As a symptom, it has a cause, a course, a differential diagnosis; and a treatment - either curative or palliative (using competency enhancing techniques such as lessening the demands on the patient, tailoring the information, involving family, and delaying the decision until competency can be restored).
Competency is a legal judgment reflecting community interest in permitting an individual to retain decisional rights. Incompetence restricts the decision maker’s right to act. Under the doctrine of parens patriae, society seeks to protect incompetents from themselves and from artful others who would do them harm (by exercising undue influence over decision-making). Competency is context-specific and cannot be determined in the abstract. It is a legal conclusion about an individual's likelihood of success at a future task. Its determination depends per force on knowing what the task, what the requisite skills are, and whether the individual's illness seriously impairs those skills. A determination of incompetence is a serious blow to self-esteem and may reverse the individuation of personality structures.
General competency is made up of a ‘laundry list” of specific or partial competencies:
| 1 |
General awareness. |
| 2 |
Factual understanding of relevant issues |
| 3 |
Appreciation of likely consequences of various actions |
| 4 |
Rational manipulation of information. Requires orientation, memory, intellectual functioning, judgment, absence of interfering psychotic percepts, and mood states. |
| 5 |
Ability to function in one's environment. |
| 6 |
Demands on patient. Few demands may not challenge competency. |
Specific Competencies
Testamentary Competency
Did the testator know the extent of his property and the natural objects of his or her bounty, and did he hold both in mind at moment the will was executed. No provision in a will may be the product of an "insane delusion." Undue Influence may void an affected codicil or the entire will. Undue influence requires both testator weakness of mind and coercion by the influencer. The influencer usually holds a special relationship to the testator and typically profits under the will.
Testimonial Competency
Testimonial competence is competence to testify under oath. A person is testimonially competent if he or she is able to accurately perceive an event, remember the event, accurately communicate the event, and understand the oath and responsibility to tell the truth.
A person is contractually competent unless he or she is wholly unable to understand the nature and consequences of the transaction, or unless there is serious weakness of mind and the other party knew it.
Competency to Refuse Treatment With Anti-psychotic Drugs
The clinician first assesses general competency. She then assesses the specific competency to refuse anti-psychotic drug treatment. The testing of competency requires good faith effort to educate the patient about the subject matter of competent decision-making. In California, a mental patient is incompetent to refuse anti-psychotic drugs if, by reason of mental disorder, she cannot understand, or knowingly act upon, information about the proposed medication. Reise v. St. Mary‘s set forth the following factors to consider:
1 Does the individual acknowledge his/her serious mental illness?
2 Does he/she understand the relevant risks and benefits of the proposed treatment, the available alternative treatments, and of no treatment?
3 Is the individual able to understand and to knowingly and intelligently evaluate the information by rational processes?
Capacity to Refuse Psychotropic Med Assessment Questions
| A |
Communication a Choice |
| 1 |
Have you decided to go along with your doctor's prescription? Tell me your decision? |
| B |
Factual Understanding of the Issues |
| 2 |
Tell me what your doctor told you about: |
| a) nature and seriousness of your condition, |
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| b) recommended medication, |
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| c) possible benefits from this treatment, |
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| d) possible risks (or discomforts) of treatment, |
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| e) other possible treatments (if any) & their risks and benefits. |
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| f) possible risks and benefits of no treatment at all. |
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| 3 |
You mentioned that your doctor told you of a (low, medium, high) chance that (named risk) might occur. How likely do you think the (risk) might be for you? |
| 4 |
Why is your doctor giving you this information? What does he/she expect you |
| C |
Appreciation of the Situation and Its Consequences |
| 5 |
Please explain what you really believe is wrong with your health now? |
| 6 |
Do you believe you need treatment? What is treatment likely to do for you? |
| 7 |
Why do you think your doctor has recommended (specific drug) for you? |
| D |
Rational Manipulation of Information |
| 8 |
How did you reach the decision to refuse the medicine? |
| 9 |
What factors did you consider and how did you balance them? |
Medical patients are presumed competent to accept or refuse medical care. This presumption can be rebutted by evidence of decisional incapacity. This requires finding a mental status defect responsible for a specific inability to understand and knowingly and intelligently act upon consent information. This is a clinical finding that can be made by the treating doctor. Psychiatric input may be helpful but neither a psychiatrist nor a psychiatric diagnosis is required.
Clinical incapacity, however, is not legal incompetency - a judicial determination. Keep in mind that a patient who is incapacitated for medical decision-making can neither consent nor refuse medical care. If such incapacity is present, what then? In an emergency, consent may be presumed and treatment given. If it is not an emergency, California law allows for a petition under Probate Code Section 3200 et seq. A judge will review the case and make a judicial finding and issue a Court order. In most cases, a surrogate decision-maker will be appointed to consent to a proposed treatment plan. Such petitions can be expedited.
What about urgent but not emergent situations when incapacity may be short duration? California law does not specifically deal address such situations. The CMA and the AMA suggest the treating doctor may rely on long established medical customs. This means, in the absence of a pre-designated surrogate decision-maker (durable power of attorney for health care decisions, court-appointed guardian, etc.), the treating doctor should turn to the patient’s spouse, parents, adult children, or other close relative to act in the role of surrogate decision-maker. The surrogate consents for the patient. In doing so, he or she – or they – act as would the patient were the patient able to act. If the patient’s wishes are not known, the surrogate then acts in the patient’s “best interests.” If the surrogates are in conflict with each other or with the treating doctor, a court petition should be sought.
Many times, the treating doctor seeks out a psychiatrist not to comment on a patient’s mental status but to put a patient on a “5150.” In such cases, LPS and only LPS criteria apply. Keep in mind LPS holds do not permit the treating doctor to go forth with medical. Patients placed on holds are to be transferred to psychiatry wards unless too ill to be moved. Even in situations where holds are appropriate, the treating doctor’s consent problem still must be resolved as described above.
d5325.1:
Persons with mental illness have the same legal rights and responsibilities guaranteed all other persons.
d5325.2:
Any person who is subject to detention shall have the right to refuse treatment with anti-psychotic medication.
d5326.2:
To constitute voluntary informed consent, the following information shall be given to patient in a clear and explicit manner:
| (a) |
The reason for treatment: nature and seriousness of the illness. |
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| (b) |
The nature of procedures to be used: probable frequency and duration. |
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| (c) |
The probable improvement expected with or without such treatment. |
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| (d) |
The nature, degree, duration, and the probability of the side effects and significant risks, commonly known by the medical profession, of such treatment, including its adjuvants, especially noting the degree and duration of memory loss (including reversibility) and how/what extent they may be controlled, if at all. |
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| (e) |
That there exists a division of opinion as to the efficacy of the proposed treatment, why and how it works and its commonly known risks and side effects. |
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| (f) |
The reasonable alternative treatments, and why the physician is recommending this particular treatment. |
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| (g) |
and that if he or she consents, has the right to revoke his or her consent for any reason, at any time prior to or between treatments. |
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d810:
A judicial determination of incapacity should be based on evidence of a deficit in one or more of the person's mental functions rather than on a diagnosis of a person's mental or physical disorder.
d811:
(a) Determination shall be supported by evidence of a deficit in one of the following mental functions:
(1) Alertness and attention, including, but not limited to, the following:
(A) Level of arousal or consciousness.
(B) Orientation to time, place, person, and situation.
(C) Ability to attend and concentrate.
(2) Information processing, including, but not limited to, the following:
(A) Short- and long-term memory, including immediate recall.
(B) Ability to understand, communicate with others, verbally or otherwise.
(C) Recognition of familiar objects and familiar persons.
(D) Ability to understand and appreciate quantities.
(E) Ability to reason using abstract concepts.
(F) Ability to plan, organize, carry out actions in one's rational self-interest.
(G) Ability to reason logically.
(3) Thought processes. Deficits may be demonstrated by the following:
(A) Severely disorganized thinking.
(B) Hallucinations.
(C) Delusions.
(D) Uncontrollable, repetitive, or intrusive thoughts.
(4) Ability to modulate mood and affect. Deficits may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, which is inappropriate in degree to the individual's circumstances.
(b) A deficit in mental functions listed above may be considered if the deficit significantly impairs the person's ability to understand and appreciate the consequences of his or her actions with regard to decision in question.
(c) In determining whether deficit is so substantial that the person lacks capacity... court may take into consideration the frequency, severity, and duration of periods of impairment.
d812:
A person lacks the capacity to make a decision unless the person has the ability to (1) communicate the decision, and (2) understand and appreciate, to the extent relevant, all of the following:
| (a) |
Rights, duties, and responsibilities created by, or affected by the decision. |
| (b) |
Probable consequences for the decision maker and persons affected... |
| (c) |
Significant risks, benefits, and reasonable alternatives... in the decision. |
d813:
(a) For judicial determination, person has capacity to give informed consent to medical treatment if person is able to do all of the following:
| (1) |
Respond knowingly and intelligently to queries about treatment. |
| (2) |
Participate in decision by means of rational thought process. |
| (3) |
Understand all of the following items of minimum basic medical |
| treatment information with respect to that treatment: |
| (A) |
Nature and seriousness of the illness, disorder, or defect. |
| (B) |
Nature of the medical treatment that is being recommended. |
| (C) |
Probable benefits and risks of medical intervention that is being recommended and the serious consequences of lack of treatment |
| (D) |
The nature, risks, and benefits of any reasonable alternatives. |
(b) A person who has capacity to give informed consent to a proposed
medical treatment also has capacity to refuse consent to that treatment.
d3201:
| (a) |
A petition may be filed to determine that a patient has the capacity |
| (b) |
A petition may be filed to determine that a patient lacks the capacity... |
| (c) |
In determining [in]capacity to consent to medical treatment, court may |
| consider the frequency, severity and duration of periods of impairment. |
d3204: The petition shall state, or set forth by medical all of the following so far as is known to the petitioner at the time the petition is filed:
| (a) |
The nature of the medical condition that requires treatment. |
| (b) |
The course of treatment that is considered to be medically appropriate. |
| (c) |
The threat to the health of the patient if authorization for the recommended course of treatment is delayed or denied by the court. |
| (d) |
The predictable or probable outcome of the recommended treatment. |
| (e) |
The available alternatives, if any, to the treatment recommended. |
| (f) |
The efforts made to obtain an informed consent from the patient. |
| (g) |
If the petition is filed on behalf of a medical facility, the name of the person to be designated to give consent behalf of the patient. |
| (h) |
The deficit or deficits in the patient's mental functions listed in subdivision (a) of Section 811 which are impaired, and identifying a link between the deficit and the inability to respond knowingly and intelligently to queries about the treatment or inability to participate in the treatment decision by means of a rational thought process. |
d3208:
Court may make an order... If untreated, there is a probability the condition will be life endangering or result in serious threat to health of patient.
Health and Safety d1418.8
Physician in a skilled nursing facility or intermediate care facility determines resident lacks decision-making capacity and there is no person with legal authority to make decisions on behalf of the resident…A resident lacks decision-making capacity if resident is unable to understand the nature and consequences of the proposed medical intervention, including its risks and benefits, or is unable to express a preference...A person with legal authority to make medical treatment decisions on behalf of a patient is a Durable Power of Attorney for Health Care, a guardian, a conservator, or next of kin…Physician shall not be required to obtain a court order pursuant to Probate d3201. The facility shall conduct an interdisciplinary team review and the interdisciplinary team shall oversee the care of the resident.
Child Custody