How does the law assess a patient to be incompetent and how are their interests preserved and protected in relation to medical intervention?

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How does the law assess a patient to be incompetent and how are their interests preserved and protected in relation to medical intervention?

Introduction

The consent of the patient can be define as that every person, regardless of age, is presumed to be capable of consenting to or refusing medical treatment unless he or she is found incapable with respect to a specific treatment or plan of treatment. In other words, capacity is presumed unless there is a specific finding of incapacity. Except in cases of emergency, a health care practitioner proposing a treatment is legally required to obtain specific, voluntary, informed consent from a capable patient before initiating it. If the patient is found to be incapable of giving or withholding such consent, it must be obtained from a Substitute Decision Maker. Assessing the capacity of a patient to consent to a treatment is a heavy responsibility, made even more challenging when a young person is involved. (Larcher, 2005, pp. 353-356)

There is no specific age of capacity. The same legal test of capacity applies for patients of all ages, although the means of assessment may differ. For a variety of reasons, young patients may wish to refuse treatment, even when their health care practitioner believes it is essential to their health, perhaps even to their lives. The refusal itself does not constitute incapacity. The health care practitioner must assess each patient's capacity to make a treatment decision. If the patient is capable, then the decision of whether or not to follow the health practitioner's recommendation is completely up to the patient. If the practitioner finds the patient to be incapable to make the decision, it will be made by a Substitute Decision Maker (which includes guardians or parents). This study provides some background to the assessment of the capacity to consent to treatment of young people in general and describes the development of a guide that we hope will help health care practitioners in performing such assessments. The study was developed with consideration of both the medical and legal issues involved. It includes an introduction to the legal test, practical tips for conducting assessments, and information for parents. (Appelbaum, 2007, pp. 1834-1840)

Recent years have seen a movement away from the traditional paternalistic, somewhat protective relationships between physicians and patients toward partnerships that encourage the autonomy of the patient. This trend is evident in the HCCA, whose provisions ensure that the voice of the young but capable patient is heard and respected during discussion of his or her treatment. As often occurs, however, the new legislation has had some unintended consequences that can undermine the therapeutic alliance among the patients, the parents, and the health care team if the situation is not carefully and responsibly managed by all concerned. Capabilty to consent to treatment is a legal term that means the capacity to realize applicable information and to value the fairly ...