Capacity Assessment for Surgical Consent

Initial Assessment

• Mental illness alone does not automatically mean incapacity, even patients detained under mental health legislation should not be assumed incapable of providing valid consent for medical, surgical, or dental treatment, as stated by the Anaesthesia society 1, 2, 3
• The fact that a patient has not taken medication for a few days does not automatically render them incapable, according to the Anaesthesia guidelines 1
• Capacity is issue-specific, a patient may have capacity to consent to hip fracture surgery even if they have paranoid schizophrenia, as noted by the Anaesthesia society 3

Structured Capacity Evaluation

• The treating physician should assess four key abilities: understanding, appreciation, reasoning, and expression of choice, with appreciation being the ability to recognize that the information applies to the patient and understand the consequences of accepting or refusing surgery, as stated by the Anaesthesia society 1

If Patient Has Capacity

• If the assessment demonstrates the patient has capacity, they provide their own consent, no family involvement is needed, according to the Anaesthesia guidelines 1

If Patient Lacks Capacity

• The treating physician makes the treatment decision based on the patient's best interests, not family members, considering medical, social, and psychological factors, as stated by the Anaesthesia society 2, 5
• Best interests include consideration of the patient's welfare, the nature and prospects of success of the treatment, what the patient's attitude would likely be, and consultation with those who know the patient, as noted by the Anaesthesia society 2, 5, 6, 3
• Family consultation is recommended but not required in emergencies, failure to consult family should not compromise care when urgent treatment is needed, according to the Anaesthesia guidelines 2, 5, 6, 3

Additional Steps

• Consultation with an Independent Mental Capacity Advocate (IMCA) should be sought under the Mental Capacity Act when the patient lacks capacity and no family or close friends are available, as stated by the Anaesthesia society 7, 8, 2, 6, 3
• However, this should not delay necessary emergency surgery, as noted by the Anaesthesia society 2

Check for Advance Directives or Legal Representatives

• Before proceeding, verify whether the patient has an advance decision (living will) that might refuse the proposed treatment, a health and welfare Lasting Power of Attorney (LPA), or a court-appointed deputy with healthcare decision-making powers, as stated by the Anaesthesia society 7, 8, 5, 6
• Enduring Powers of Attorney (EPA) only cover financial matters and cannot make healthcare decisions, according to the Anaesthesia guidelines 7, 8, 5, 6, 9

Documentation Requirements

• The treating physician must clearly document the grounds for determining capacity or lack thereof, the treatment that will be undertaken, how this treatment serves the patient's best interests, and attempts to consult family or others (if time permits), as stated by the Anaesthesia society 2, 5, 1, 6

Common Pitfalls to Avoid

• Do not assume incapacity based solely on the psychiatric diagnosis, this is the most critical error, as stated by the Anaesthesia society 1, 2, 3
• Do not wait for family to arrive if surgery is urgent, the physician can proceed based on best interests, according to the Anaesthesia guidelines 2, 5, 6, 3
• Do not confuse capacity for psychiatric treatment with capacity for surgical consent, these are separate determinations, as noted by the Anaesthesia society 1, 2