Risk Management

Mentally Incompetent Patients Pose Informed Consent Challenge

By Claire Harkrider Topp, JD

[ARGUS, July 1993]

Mr. Smith comes to see Dr. Jones, a general ophthalmologist, with complaints of hazy and blurred vision both while reading and driving. In the waiting room, Mr. Smith appears confused and is unable to understand simple directions from the nurse to hang up his coat. Informed of this behavior, Dr. Jones reviews the patient’s chart before calling him in. The medical history indicates Mr. Smith was recently diagnosed with Alzheimer’s disease, although it is in the early stages. The social history indicates Mr. Smith is single, lives with his elderly mother and supports himself as a registered nurse.

Dr. Jones examines the patient, who is cooperative and asks appropriate questions, but appears confused once or twice during the examination. The examination reveals Mr. Smith has bilateral cataracts with a visually impairing cataract in the right eye that should be removed as soon as possible. Mr. Smith appears cooperative and lucid, but due to his Alzheimer’s diagnosis may not be able to give informed consent.

As a general rule, because a patient has the right to participate in decisions affecting his or her physical and mental welfare, ophthalmologists and other health care providers cannot perform a medical procedure on a patient without that person’s informed consent. Failure to obtain this consent can subject an ophthalmologist, and potentially his or her clinic, to tort liability to the patient, even though the ophthalmologist believed the medical procedure was necessary.

The rights of a court-declared mentally incompetent patient are well established. In such cases, the ophthalmologist must obtain authorization for treatment from the patient’s court-appointed legal guardian. Patients who voluntarily commit themselves to a psychiatric facility retain the right to decide on treatment unless subsequently found to be incompetent.

More difficult are cases involving patients like Mr. Smith who have not been declared mentally incompetent by a court, but may be incompetent because they are exhibiting signs of mental illness, are under the influence of drugs or intoxicants, are unconscious, or have other permanent or temporary impairment of reasoning power. In these situations, the ophthalmologist first must conclude that the patient is mentally incompetent, then must obtain proper authorization for treating the patient. Neither task is an easy one.

To determine if a patient like Mr. Smith is incompetent, the ophthalmologist should consider whether the person has sufficient mental ability to reasonably understand the condition, nature and effect of the proposed treatment as well as the attendant risks in pursuing or not pursuing the treatment, and whether the patient is able to make a rational decision as to treatment. Mr. Smith apparently understands his condition and the proposed treatment and risks, especially in light of the fact he is a registered nurse. However, it could be argued that his Alzheimer’s diagnosis and confused behavior indicates he may not grasp the true significance of his medical situation. When Dr. Jones tried to discuss Alzheimer’s disease with Mr. Smith, he denied that Alzheimer’s was impairing him in any way.

Dr. Jones wants to treat Mr. Smith, but understands that an ophthalmologist who considers a patient incompetent must obtain appropriate legal consent. Some state statutes identify a “surrogate” who can consent to medical, dental or surgical treatment for a mentally incompetent person and set forth the procedure for obtaining and documenting this consent. State or local medical societies may be able to provide information about state laws regarding surrogates.

Typically, the surrogate must be competent and may be a parent, spouse, close relative, duly appointed guardian, or the medical director, administrator or superintendent of a health care facility entrusted with the patient’s care. Because consent given by anyone must be informed consent, the ophthalmologist should fully disclose to the surrogate all information regarding treatment that would have been conveyed to the patient.

Ophthalmologists who treat mentally incompetent patients are advised to carefully note the consent process in the patient’s medical record, ensuring that valid authorization for treatment is obtained. The signature of the patient or other individual empowered to give consent should be witnessed, and the ophthalmologist who informs the patient and obtains the consent should be identified in the medical record.

Mr. Smith’s case is complicated because he is single and his patient information form indicates only his elderly mother as a possible surrogate. She might not be competent enough to give informed consent for her son’s surgery.

In emergency cases, where it may be impossible to obtain proper informed consent, ophthalmologists should not hesitate to provide necessary care when immediate treatment is required to preserve life or prevent a serious impairment to health. Even if a state does not have specific legislation relating to emergency treatment of mentally disabled people, the common-law rule that consent to treatment may be presumed in an emergency is recognized explicitly in some statutes and implicitly in others. The ophthalmologist should seek concurrence from another member of the medical staff that an emergency exists and that the proposed treatment is necessary. Thoroughly documenting this concurring opinion along with the facts surrounding the emergency, i.e., the nature of the threat, its immediacy and its magnitude, is imperative in the event the decision to treat is subsequently challenged.

Although Mr. Smith’s case is not an emergency, it is highly preferable that he be treated promptly and while he is cooperative and lucid. Before proceeding with surgery, Dr. Jones should secure a second opinion from another ophthalmologist as if this were an emergency situation, and document in the patient record the concurrence of the other ophthalmologist and the facts and reasoning in going forward with treatment. Finally, Dr. Jones should document that although Mr. Smith was somewhat impaired due to Alzheimer’s, he appeared to understand the risks and benefits of the procedure and was competent to give informed consent. If a claim then arises from an unfortunate result of the cataract treatment, the record will show that Dr. Jones was prudent and careful in taking the necessary steps to obtain informed consent and document the process.