Case: Consent and Capacity - Advanced Case - Discussion


Team: Clinical Ethics in Emergency Medicine
Posted on April 10, 2015


Case: Consent and Capacity - Advanced Case - Discussion

Team: Clinical Ethics in Emergency Medicine

Date: This is not a timed event.


1) Do you have his consent to proceed with imaging? Would you honour this refusal of care? Why or why not?

He has not given you consent to proceed. However some important elements to this case will determine if you honour his refusal or not.

a) The most important is if he has decision-making capacity (DMC) - which is necessary to either consent to a test or make an informed refusal

b) The potential risks of his choice - A patient with DMC can refuse even life-saving care, so the fact that there may be a very serious outcome if he refuses (quadriplegia from an undiagnosed cervical spine injury) is not a sufficient reason to go ahead. But it makes it even more important to assess his DMC quickly and accurately, and some would argue that he has to have a high level of DMC to make such a serious decision and have it respected

c) The fact that he is intoxicated raises concerns that he does not have DMC - but does not define him as incapable. DMC is a functional and situation specific determination.  

2) How would you assess this patient's decision-making capacity?

The key elements of decision-making capacity are:

a) Does the patient know what their options, and express a specific choice

b) Does the patient understand the consequences of acting on that choice

c) Is there some consistency between the patient's expressed values and the choice they have made 

[the first 2 elements are quite clear in law and ethics, the last one is a little more controversial and is more an expression of an ethical understanding of DMC rather than a legal one]


So a basic capacity assessment involves:

a) Identify medical problems and conditions that impair the patient’s ability to think and reason, and treat those as much as possible.

b) Clearly articulate for the patient the issue at stake, or the decision that needs to be made

c) Describe the various options to the patient and what is likely to happen if each of them is chosen

d) Ask the patient to explain to you what they understand the options to be, and the implications of their choice

e) Ask them what their decision is and why they chose it (they do not need to convince you this is the best choice - just establish some type of logical link between what they want to achieve and why this makes sense for them)

f) Make a decision as to whether the patient has sufficient DMC to proceed with this choice


3) How would your capacity assessment affect your subsequent actions in this case?

If you determine the patient has sufficient DMC to refuse imaging then you should allow them to make their choice. In fact - if you determine the patient has capacity and yet proceed with unwanted treatments or investigations you could be liable for assault and/or battery. In cases where there are significant potential risks associated with a certain choice and/or if the patient's choice is not consistent with your recommendations you should clearly document the discussion and your capacity assessment. 


If you determine the patient lack DMC to make the decision at hand then you should:

a) Deal with the most immediate and serious medical concerns –

b) See if you can restore their DMC by addressing treatable issues impairing their capacity  

c) Look for prior wishes (such as an advance directive) that are relevant to the current situation.

 d) Find the appropriate substitute decision-maker for this patient

 e) Reassess frequently since DMC may change over time

 f) Document your assessment and all steps taken


Remember that the Emergency Exception to Consent only allows you to proceed with treatment if:

a) Treatment is immediately required to preserve life or limb

b) The patient has left no prior wishes expressing a desire not to receive the treatment

c) An appropriate substitute decision-maker is not available

d) A reasonable person in a similar situation would agree to the treatment