In order to obtain consent, the patient must understand the consequences of their decision.  Sometimes an otherwise level-headed person who is under enough stress, pain, or medication is not able to make such an important decision.  Each patient’s case needs to be evaluated on an individual basis with all external factors considered.

Minors
Rules regarding the legal capacity of a minor when it comes to consenting to treatment will vary from state to state.  Some state laws say that minors are not legally capable of providing consent for their own treatment. Many states take it on a case by case basis – looking at the “mature minor” criteria, emancipation, and if the minors are actually parents themselves.  Providers should look at the state laws for obtaining consent from minors before making a decision.  There are many details to circumstance surrounding a minor being allowed to consent on their own.

Guardianship and Conservatorship
Patients under guardianship or conservatorship may or may not legally have the capacity to provide consent.  The scope of the guardianship or conservatorship must be considered before determining if the guardian should be making medical decisions on behalf of the patient.  Some guardians preside over the estate or property only.  There must be documentation of guardianship over the PERSON before they can be deemed responsible for consent to medical treatment.

Patients may object to their guardian’s decisions.  Providers should do two things before ignoring the patient’s objections and going with the guardian’s decision.  First, the provider should obtain the documentation proving the guardianship is legally binding.  Second, the provider must decide if they believe that the guardian is acting with the patient’s interest in mind.  After those two tasks are complete, the physician can override the patient’s objections for the guardian’s consent. Knowing  who is authorized to consent on behalf of the patient, prior to the treatment recommendation, can avoid unnecessary confrontations with the patient and doubts about who is authorized to consent.

Mental Capacity
Physicians should have a clear vision of the patient’s mental capacity before obtaining consent.  Providers must have supporting documentation of the patient’s ability to make a sound decidison. Patients must fully understand the nature and consequences of the treatments before being allowed to consent or decline.  Providers should question the patient’s intelligence and awareness levels at the time of securing the consent, in order to be sure it is valid.

Factors that providers should look for, regarding mental capacity of patients consenting to treatment are:

• Severe mental illness
• Shock or trauma
• Crippling physical injury or illness
• Alcohol or drug abuse

All of these factors can have the same effect on the patient’s ability to consent to treatment.

Cycling Mental Status
Problems arise when patients’ mental status goes through cycles.  Patients who have periods of confusion or disorientation may still be legally capable of providing consent. A patient can legally provide consent while they are in a lucid state of mind with the ability to understand the nature and consequences of the treatment.

If the patient is not lucid during the consent process and the provider determines that they are not able to understand the consequences of the decisions being made, the provider can deem the patient incapable of consent. Medical providers have a responsibility to keep detailed documentation of the reason the patient was deemed incapable of consent.  Proof may be requested, at a later date, to demonstrate that the patient lacked the mental ability to understand the nature and consequences of the treatment.