How Do I Assess Competence to Give Informed Consent?

Carolyn Buppert, NP, JD


June 19, 2012


If a patient has mild/moderate mental retardation and is deemed competent (eg, no other person has power of attorney), but the individual does not understand the procedure, risks, or benefits, should they sign consents? Who is responsible for ensuring that the patient is competent and understands? What is the law?

Response from Carolyn Buppert, NP, JD
Attorney, Law Office of Carolyn Buppert P.C., Bethesda, Maryland

First, if a patient does not understand the procedure, risks, or benefits, then he or she should not sign a consent form until he or she understands and accepts the risks.

In general, an individual has right to make his or her own decisions if he or she is an adult and has not been adjudged incompetent and appointed a guardian. It is a fairly complicated legal process to declare an individual incompetent and to appoint a guardian who then has the right to make decisions for the individual. So, you might encounter individuals who are less than fully competent to make decisions about surgery but haven't gone through the legal process to have a guardian appointed. In that situation, it is the provider's responsibility -- in the case of surgery, the surgeon's responsibility -- to assess whether the individual understands the necessity for, and risks and benefits of, the surgery and can make an informed decision.

If the procedure is being performed by a nurse, nurse practitioner, or other advanced practice provider, then it is the responsibility of the provider performing the procedure to assess the patient's competency and understanding. This responsibility also applies to a provider who is prescribing: For example, does the patient understand the instructions, risks, and possible side effects of the prescribed medication, and does he or she accept the responsibilities and the risks of taking the medication?

The law on informed consent comes from statutes (in some states) and also from "common law": that is, judge-made law from case decisions. Obviously, it is impractical to for a surgeon to ask a judge whether each patient is competent enough to consent to surgery. So, many decisions about competency are made at the provider level.

Assessing competency and understanding can be difficult. An article about assessing competence includes a tool that may be useful to providers in assessing and informing patients whose capability for understanding is limited: Assessment of Patients' Competence to Consent to Treatment.[1] Another available tool is called Competency to Make Medical Decisions.

If a surgeon or other provider makes a bad judgment -- for example the patient is clearly not capable of making an informed decision and the surgeon operates, and there is a bad outcome -- the patient's family could sue the surgeon for negligence. Then, a judge or jury would need to decide whether (1) an exception applied, such as an emergency situation (where the requirements of consent may be loosened); (2) the patient was capable or incapable of making an informed consent; and (3) the surgeon knew that or should have known that.

Patients who are unconscious or mentally retarded; those who have been adjudged insane; those who cannot read, write, or hear, and those under the influence of sedative drugs or alcohol are generally not competent to give consent. Unless it is an emergency situation, a provider should avoid treating such patients unless a parent or a court-appointed guardian is available to give consent.

Appelbaum[1] states:

If, despite such efforts [to assess and inform the patient], it is clear that a patient lacks the capacity to make treatment decisions, a substitute decision maker must be sought. In emergencies, physicians can provide appropriate care under the presumption that a reasonable person would have consented to such treatment. For patients with advance directives, either the treatment choice that the patient made in advance or the choice of a surrogate decision maker may be indicated. In the absence of an advance directive and when time is available, the recourse is usually to contact family members. Many states have statutes indicating the priority order in which family members may be approached; in general, the order is the spouse, adult children, parents, siblings, and other relatives. Disagreement among family members at the same level of priority can often be resolved by assembling the involved parties for clarification and discussion; intractable disagreement may require resolution by a court.