Assessment on mental capacity to give consent in general practice - what doctors need to know: who, when and how

Mimi MC Wong 黃美彰，Michael GC Yiu 姚家聰

HK Pract 2020;42:38-42

Summary

Mental capacity to give consent to treatment may be affected by certain mental conditions. However, having mental illnesses does not necessarily render someone mentally unfit to give consent. When a patient is deemed capable of consenting to or refusing a treatment, his or her wishes need to be respected. If a patient is incapable of making a treatment decision, a proxy decision needs to be made for the patient according to his or her best interests. The decision can be made based on common law and/or provisions of the Mental Health Ordinance. It is therefore important for doctors to determine if the patient has the mental capacity and doctors need to know how to perform a proper mental capacity assessment. In this article, the steps needed to perform a comprehensive mental capacity assessment will be gone through with some illustrative case examples.

摘要

心智障礙可能影響病人作出同意接受治療的能力。然而，並 非所有精神病患者都不宜作出有關治療的決定。當病人被認 為能夠為自己決定接受治療與否時，他的意願是要得到尊 重。但倘若病人已失去該能力，我們便要基於他的最佳利 益，依據普通法或精神健康條例，安排代為作出治療上的決 定。因此，我們應懂得如何判斷病人在心智方面的行事能力 和進行評估。本文闡述綜合評估精神上行事能力的步驟，並 以個案舉例說明。

Introduction

This article refers to patients aged 18 years and above.

After the change from “Bolam” to “Montgomery”, doctors are now more cautious in getting patient’s consent for medical procedure, especially about the amount of details they should provide to the patients before accepting the consent. ¹ From the perspective of psychiatrists, very often we have to deal with a more fundamental problem, which is about our patients’ mental capacity to give consent. Mental capacity may be affected by certain psychiatric illnesses. However, having mental illnesses does not necessarily render someone mentally unfit to give consent.

Common law presumes that a person has mental capacity to make a decision unless there is evidence that he or she lacks this capacity. ² Under common law, the decision of a person with capacity has to be respected, even if the decision is seen to be unwise, may be detrimental to the person’s health or may even threaten his or her life. Acting without a capable person’s consent constitutes assault and battery. ³ On the other hand, if a person lacks the capacity to make a health care decision, doctors have a legal and ethical duty to act in the patient’s best interests and to safeguard his or her well-being. Failure to do so constitutes negligence or a failure to perform professional duties. ⁴ It is therefore important for doctors to determine if the patient has mental capacity.

Who should assess mental capacity?

This is usually done by the doctor who proposes a treatment for the patient. Any doctor can do the assessment. Psychiatrists would be consulted to do the assessment for complex cases or when it is doubtful regarding the mental fitness of the patient.

Doctors have a duty to give appropriately full information as to the nature of the treatment proposed, and the likely risks. Withholding information on the consequences of refusal or misinforming a patient may make a refusal invalid. It is necessary to give all relevant information to patient, in manageable pieces, with the use of simple language, visual aids and non-verbal means if needed. Hearing or visual impairment shall be corrected and language barrier shall be compensated with formal translator or relatives to assist communication. Adequate time shall be given for the patient to understand and digest the information provided. The patient shall also be allowed to communicate his decision freely and with the help of speech therapist for those with expressive dysphasia.

When mental capacity assessment should be made?

When a patient displays risk factors for impaired decision-making such as having a psychiatric diagnosis, extreme of age, abrupt change in mental state or behaviour and when the decision made not only contradict to what most people would choose but also appears to contradict that individual's previously expressed, capacity assessment shall be made. When a family member or a health-care worker raises concerns about a person’s capacity ⁸ , mental assessment is required for clarification.

Patients with mental illnesses can still have the mental capacity to give consent for medical treatment. Therefore an assessment is necessary. The more complicated the problem, the greater the level of competence is required to make the decision. A patient in early stage of dementia may still have the mental capacity to consent for a colonoscopy but not for a liver transplant. It is important that the freedom for decision-making of patients with mental illnesses is respected. Doctors have to make every reasonable effort to support patients to make their own decisions.

For those who have made unwise decision, it may be related to mental illness, drugs, false assumptions, misinformation, undue influence by others, etc. This will prompt doctors to question in greater details, and consider specialist psychiatric opinion, or even court decision.

Among the consultation referrals received, more commonly, the patients are refusing treatment (proposed to them) instead of accepting it. This will be further elaborated in the illustrative case examples in the end of the article.

How to assess mental capacity?

Sometimes psychiatrists will encounter consultation referrals just asking if the patient is mentally fit to give consent, without indicating the medical procedure needed. Mental capacity to give consent is decisionspecific. We need to assess specifically about the patient’s understanding of a particular treatment. It is also time-specific. In a patient with progressively deteriorating condition like dementia, there is a need to reassess his or her mental capacity if he or she is noted to have change in cognitive function. If the impairment is believed to be temporary or fluctuating, doctor shall decide if it is appropriate to delay the assessment, e.g. in a depressed patient not yet received treatment.

Firstly, we need to think about the following:

• Is there an impairment of, or disturbance in functioning of, the mind or the brain?
• Is the impairment or disturbance sufficient that the person is unable to make the particular decision?
• If there is no impairment of, or disturbance in functioning of the mind or the brain, the person is deemed to have capacity. The nature of the impairment and how the impairment impacts on decision making should be documented.

Then, we need to consider the 3 points below:

1. Can the patient understand and retain the information relevant to the decision in question?
2. Does he or she believe that information?
3. Does he or she weigh that information in the balance to arrive at a choice?

If the answer is no to any of the questions, the patient is assessed to have a lack of mental capacity.

The nature of the problem, the recommended treatment, its pros and cons, as well as alternative treatment and their pros and cons are explained to the patient in a simple nature so that they can understand.The ability to understand is related to intelligence and cognitive function and may also be affected by mental illnesses and severe anxiety.

It is not uncommon when we are doing the assessment for mental capacity, the patients cannot tell us what the doctors have told them about the medical treatment proposed. It may be a problem with their ability to retain the information, or they are not told anything about the treatment yet. Clear documentation about what is explained to the patient is important.

It is also good practice if the doctor doing the assessment can be present when the treating team is explaining the proposed treatment to the patient so that the assessor will know what has been told and assess if the patient can retain the information.

The assessor shall also ask the patient how the choice is reached with emphasis on the reasoning of the process, not the outcome of the decision. The assessor shall decide whether the patient can manipulate the information logically and rationally and information told to him or her is not affected by distorted cognition and impaired judgment as a result of underlying mental illness like depression or dementia.

What if the patient is assessed to be incapable to give consent?

Where patient is assessed to be incapable to give consent, others may need to make decisions on their behalf.

In Hong Kong, Part IV B (guardianship) and Part IV C (consent by two doctors) of the Mental Health Ordinance deals with the medical treatment of mentally incapacitated persons who have mental disorder or mental handicap. ⁶ When an adult has been rendered unconscious in a traffic accident, the practice of seeking the consent of a relative prior to treatment is a misconception. A relative has no legal right to either consent or refuse. However, it is a good practice to consult relatives, providing that such consultation causes no delay that may adversely affect the patient. Where treatment is not urgently needed, all reasonable steps must be taken to ascertain whether there is a guardian. Valid and applicable advance decisions or court-appointed deputy must be respected. If these are not available, Part IV C of the Mental Health Ordinance gives a doctor the power to provide urgent or nonurgent medical treatment to a mentally incapacitated patient without consent, provided that the patient does not understand the nature and effect of the treatment. The treatment must also be necessary and in the patient’s best interests

Best interests of patient are central to all clinical decisions. Doctors shall identify all factors the patient will consider if making the decision by him/herself and consider his or her past wishes and feelings, beliefs and values. Patient’s relatives, caregivers, or close friends shall also be consulted. It is important to consider the prospect of the patient regaining capacity in future, and delaying decision till then. The less restrictive options shall be considered to achieve the same goal. In case of disagreement between legal guardian and treating doctor regarding the necessary treatment for the patient, court decision shall be sought.

Part IV C of the Mental Health Ordinance cannot be used for “special treatment”. “Special treatment” is defined as medical or dental treatment "of an irreversible or controversial nature" as specified by the Secretary for Food and Health including organ donation and sterilisation. ⁷ Court approval is needed for these conditions or disputed cases.

Illustrative case examples involving mental capacity assessment

Case 1:

A 40-year-old man with schizophrenia was diagnosed to have colon cancer. He refused curative treatment. He understood the information given to him about treatment options and could retain the information. However, he did not believe that he had colon cancer. He thought that the symptoms were caused by his persecutors playing tricks on him. Therefore, he believed the only way was to seek help from the chief executive instead of having any surgery. He was assessed to be mentally unfit to refuse the treatment in view of his active psychotic symptoms due to paranoid schizophrenia.

Case 2:

A 45-year-old severely depressed woman was sent to the hospital after a drug overdose. She was alert and she refused treatment for her drug overdose. She understood the consequence for refusing the treatment and she was able to believe that she was in a critical condition. She still refused treatment and stated that life had no meaning for her anymore and she did not want to live any longer. She was assessed to have severe depression with sense of hopelessness and active suicidal ideas. Her decision was very likely a result of her negative cognitions which was related to her depression. She was unable to weigh the information given to her rationally and logically. She was assessed to be mentally incapable to refuse treatment due to her underlying depressive disorder.

Case 3:

A 55-year-old man was brought to the Accident & Emergency Department as he was found to be drunk. Suspicious shadows were found in his chest X-ray and further investigations were needed. He refused all further investigations without providing reasons. This patient was likely to be transiently incapacitated due to his alcohol intoxication state. Since he is likely to recover within days, it is better to wait for him to be sober and reassess his mental capacity to consent for the investigations.

Conclusion

All doctors need to recognise the increasing importance of proper mental capacity assessment. When a patient is deemed capable of consenting to or ref using a treatment, his or her wishes should be respected. If a patient is incapable of making a treatment decision, a proxy decision needs to be made for the patient according to his or her best interests. The decision can be made based on common law or provisions of the MHO. Doctors have a legal duty of care to their patients, they would be failing in that duty if they do not give treatment in that patient’s best interest just because of the lack of capacity to make a decision about the treatment.

Acknowledgment

There is no financial support and no conflict of interest.