MEDICAL CASES

Medical Cases

Medical Cases

Introduction

The capacity to consent to treatment, also known as treatment consent capacity (TCC) and medical decisionmaking capacity , is a civil legal capacity with important ethical, legal, and functional aspects. TCC is a fundamental aspect of personal autonomy and selfdetermination and refers to a person's cognitive and emotional capacity to consent to medical treatment. TCC involves the capacity not only to accept a treatment but also to refuse a treatment, or to select between treatment alternatives. Legally, TCC forms the cornerstone of the medical-legal doctrine of informed consent, which requires that a valid consent to treatment be not only informed and voluntary but also competent. Functionally, TCC may be viewed as an “advanced activity of daily life” that is an important aspect of health and independent living skills in both younger and older adults. As such, it is a critical functional and life skill considered by probate courts conducting guardianship determinations.

From a legal standpoint, TCC is a distinctive civil capacity. Issues of TCC generally arise in a medical setting and usually involve a physician, a psychologist, or some other clinician, not a legal professional, as decision maker. These clinical judgments of TCC are rarely subject to judicial review. Accordingly, while clinicians do not determine TCC in a formal legal sense, their decisions often have the same effect insofar as a patient can effectively lose decisional authority.

Over the past 30 years, consent capacity has emerged as a distinct field of legal, ethical, clinical, and behavioral research. Clinical and cognitive models of TCC, and associated assessment instruments, have been developed for evaluating TCC. TCC is often tested using four standards drawn from case law and the psychiatric literature: the capacities to

“evidence” or express a treatment choice (expressing choice),

“appreciate” the personal consequences of a treatment choice (appreciation),

“reason” about treatment (reasoning), and

“understand” the treatment situation and choices (understanding).

There is also a fifth consent ability of making a “reasonable” treatment choice (reasonable choice), which is used experimentally but not clinically. These consent abilities represent different legal thresholds for evaluating TCC and have served as the conceptual basis for instrument development and clinical and cognitive studies.

Human Rights Act

Legal Aspects of TCC

TCC is a fundamental aspect of personal autonomy in our society. Clinicians are ethically and legally obligated to respect patients' right of self-determination with respect to medical care. The doctrine of informed consent protects this right of self-determination by requiring that a legally valid consent to treatment be informed, voluntary, and competent. As such, a diagnostic or therapeutic intervention that is performed on a person lacking the capacity to consent—regardless of its intended benefit—may often represent a technical battery and be actionable under the law.

Medical-Legal Model of Consent Capacity

As discussed above, a medical-legal model of TCC incorporating specific consent abilities, or standards, has been developed from case law and the psychiatric literature. These standards are set forth below in order of proposed difficulty for patients with dementia:

S1. The capacity simply to “evidence” or express a treatment ...