Volume 202 - Issue 8
Consent, capacity and the right to say no
Authors: Peter D Bastian, Adeleen Eng, Linley A Denson and Lynn Ward
Med J Aust 2015; 202 (8): 417. || doi: 10.5694/mja14.01750
Published online: 4 May 2015
Published online: 4 May 2015
The pitfalls in assessing patients’ decision-making capacity
To the Editor: Snow and Fleming identify an important and often ignored problem.1 Without commenting on their specific case, we would point out that assessing a patient's medical decision-making capacity is part of every medical encounter,2 usually as an informal process and often without deliberative thought.
There are many pitfalls in the process, in Australia as elsewhere.3,4 Formal capacity assessment is not always required and not always triggered when needed. Competence is a legal construct varying across jurisdictions, but most capacity assessments by medical practitioners are not challenged and therefore not subjected to judicial review.5,6 The statement that all the doctors involved in the case described by Snow and Fleming agreed that the patient had capacity should be treated with caution — doctors may disagree about capacity but often keep their opinions to themselves. In difficult cases, it would be preferable to discuss the patient's capacity with the other members of the treating team. We do not believe that the legal advice to the hospital that a neuropsychology report trumps a medical opinion is correct. Rather, we suggest that formal assessment of capacity provides reliable evidence7 and should be considered within an interdisciplinary discussion to optimise patient outcomes.
Snow and Fleming's article has prompted a review of the use and utility of neuropsychology reports within our hospital.
Competing interests
No relevant disclosures.
References
- Snow HA, Fleming BR. Consent, capacity and the right to say no. Med J Aust 2014; 201: 486-488. 1
- Tunzi M. Can the patient decide? Evaluating patient capacity in practice. Am Fam Physician 2001; 64: 299-308. 2
- Bastian P, Ward L, Denson L. Pitfalls in medical practitioners' assessment of decision-making capacity. Psychiatr Psychol Law 2015. In press. 3
- Ganzini L, Volicer L, Nelson W, Derse A. Pitfalls in assessment of decision-making capacity. Psychosomatics 2003; 44: 237-243. 4
- Darziņs P, Molloy DW, Strang D. Who can decide? The six step capacity assessment process. Adelaide: Memory Australia Press, 2000. 5
- Purser KJ, Rosenfeld T. Evaluation of legal capacity by doctors and lawyers: the need for collaborative assessment. Med J Aust 2014; 201: 483-485. lefthere
- Vellinga A, Smit JH, van Leeuwen, et al. Instruments to assess decision-making capacity: an overview. Int Psychogeriatr 2004; 16: 397-419. 7