Is it okay to order tests or treatments when a patient with impaired decision-making capacity refuses a physical examination?

Ordering Tests When a Patient Refuses Examination

You can order tests or treatments when a patient refuses examination only if the patient lacks decision-making capacity; if the patient has capacity, their refusal must be respected regardless of how unwise it appears, and proceeding without consent constitutes battery.

Critical First Step: Assess Decision-Making Capacity

The entire approach hinges on whether the patient has capacity for this specific decision. Capacity must be formally assessed—never assume incapacity based on diagnosis, age, appearance, or the fact that the refusal seems irrational. 1

Capacity Assessment Framework

A patient has capacity if they can demonstrate all four elements: 2

• Understanding: Can comprehend information about the examination, why it's needed, and what tests might follow
• Appreciation: Recognizes their medical situation and consequences of refusing examination
• Reasoning: Can weigh risks and benefits of examination versus refusal
• Communication: Can express and maintain a choice

Capacity is decision-specific—a patient may have capacity to refuse a simple examination but lack capacity for complex treatment decisions. 1

If the Patient HAS Capacity

Stop. You cannot proceed. Refusal of examination by an adult with capacity is legally binding, even if it will result in the patient's death. 1

• Ordering tests without examination when a capacitated patient refuses the examination itself violates autonomy and constitutes proceeding without valid consent 3, 4
• The refusal does not need to be sensible, rational, or well-considered to be valid 1
• Your only recourse is continued respectful discussion, addressing barriers to acceptance, and documenting the refusal 4

Critical Caveat: Ensure Voluntariness

Even if capacity appears intact, verify the refusal is voluntary and not due to coercion from family, cultural pressure, or misunderstanding. If you suspect duress rather than true incapacity, seek legal advice before proceeding. 1

If the Patient LACKS Capacity

You may proceed with examination and testing based on best interests, but must follow a structured decision-making process. 1

Best Interests Decision-Making Algorithm

1. Document the incapacity determination clearly: 1, 5

   • Record specific evidence of impairment in mind or brain function
   • Document which decision-making elements are impaired (understanding, appreciation, reasoning, communication)
   • Note that all practicable steps to support the patient in making the decision were attempted 1

2. Identify the appropriate decision-maker: 6

   • First priority: Healthcare proxy/agent designated through durable power of attorney or Lasting Power of Attorney (LPA)
   • Second priority: Court-appointed guardian/conservator (if no proxy exists)
   • Third priority: Default surrogates per state statute (typically spouse, adult child, parent, sibling)
   • Final authority: Treating physician makes decisions based on best interests if no surrogate exists 6

3. Apply best interests standard comprehensively: 1

   • Consider the patient's welfare in the widest sense—medical, social, and psychological factors
   • Evaluate the nature of the examination/testing, what it involves, and prospects of benefit
   • Put yourself in the patient's place: What would their attitude likely be? What values have they previously expressed?
   • Consult family members and others close to the patient for their view of what the patient's attitude would be (though failure to consult should not compromise emergency care) 1

4. For serious interventions without available family: 1

   • Consult an Independent Mental Capacity Advocate when the examination/testing involves serious consequences or fine balance of risks and benefits

Documentation Requirements

Create a clear record including: 1, 5

• Grounds for determining lack of capacity with specific examples
• The examination/testing that will be undertaken and why
• How this serves the patient's best interests
• Consultation with surrogates or family (if time permitted)
• Previously expressed wishes or values of the patient

Emergency Exception

In true emergencies where delay to assess capacity or identify surrogates would increase risk of death or serious harm, you can proceed with examination and necessary testing without formal consent, providing care that represents the standard of emergency care. 3, 2 However, this exception is narrow and should not be used to bypass capacity assessment when time reasonably permits.

Common Pitfalls to Avoid

• Never assume incapacity based on mental illness, psychiatric hold status, confusion, or dementia diagnosis alone—these patients may still have capacity for specific decisions 1, 7
• Don't confuse psychiatric commitment criteria with medical capacity—civil commitment permits psychiatric detention but does not authorize involuntary medical treatment 7
• Avoid coercion disguised as persuasion—the power imbalance in the doctor-patient relationship means your enthusiasm for a plan can feel coercive to vulnerable patients 1
• Don't make global capacity determinations—specify which decision the patient cannot make 5