Who Makes the Final Decision on Capacity for Surgical Consent
The treating physician (surgeon or anesthesiologist) makes the final determination regarding the patient's capacity to consent for the surgical procedure, not family members, psychiatrists, or other consultants. 1
Initial Capacity Assessment
The first step is for the treating physician to formally assess whether this patient currently has decision-making capacity, despite his psychiatric diagnosis. 2
- Mental illness alone does not automatically mean incapacity - even patients detained under mental health legislation should not be assumed incapable of providing valid consent for medical, surgical, or dental treatment. 2
- The fact that he has not taken medication for a few days does not automatically render him incapable. 2
- Capacity is issue-specific - he may have capacity to consent to hip fracture surgery even if he has paranoid schizophrenia. 2
Structured Capacity Evaluation
The treating physician should assess four key abilities: 3, 1
- Understanding: Can he comprehend the nature of his hip fracture, the proposed surgery, and what it involves?
- Appreciation: Does he recognize that this information applies to him and understand the consequences of accepting or refusing surgery?
- Reasoning: Can he weigh the risks and benefits of surgery versus non-surgical management?
- Expression of choice: Can he clearly communicate a consistent decision?
Any physician can perform this evaluation, though consultation with psychiatry may be helpful but is not required for the final determination. 1
If Patient Has Capacity
If the assessment demonstrates he has capacity, he provides his own consent - no family involvement is needed. 2, 1
If Patient Lacks Capacity
If the treating physician determines he lacks capacity, the physician must proceed under a best interests framework: 2
- The treating physician makes the treatment decision based on the patient's best interests, not family members. 2
- Best interests include consideration of the patient's welfare in the widest sense - medical, social, and psychological factors; the nature and prospects of success of the treatment; what the patient's attitude would likely be; and consultation with those who know the patient. 2
- Family consultation is recommended but not required in emergencies - failure to consult family should not compromise care when urgent treatment is needed. 2
Additional Steps When Family Unavailable
For serious medical treatment (which hip fracture surgery qualifies as) when the patient lacks capacity and no family or close friends are available: 2
- Consultation with an Independent Mental Capacity Advocate (IMCA) should be sought under the Mental Capacity Act. 2
- However, this should not delay necessary emergency surgery.
Check for Advance Directives or Legal Representatives
Before proceeding, verify whether the patient has: 2
- An advance decision (living will) that might refuse the proposed treatment
- A health and welfare Lasting Power of Attorney (LPA) - only this type can make healthcare decisions
- A court-appointed deputy with healthcare decision-making powers
Important caveat: Enduring Powers of Attorney (EPA) only cover financial matters and cannot make healthcare decisions. 2
Documentation Requirements
The treating physician must clearly document: 2
- The grounds for determining capacity or lack thereof
- The treatment that will be undertaken
- How this treatment serves the patient's best interests
- Attempts to consult family or others (if time permits)
Common Pitfalls to Avoid
- Do not assume incapacity based solely on the psychiatric diagnosis - this is the most critical error. 2
- Do not wait for family to arrive if surgery is urgent - the physician can proceed based on best interests. 2
- Do not defer to psychiatry for the final capacity determination - psychiatric consultation may inform the assessment, but the treating physician makes the final call. 1
- Do not confuse capacity for psychiatric treatment with capacity for surgical consent - these are separate determinations. 2