Consent and Capacity

When patients give their consent to a procedure, they give their doctor permission to touch them without fear of being sued for battery or assault. Despite this legal protection, a doctor might still be sued for negligence if his or her actions fall below accepted professional standards or if he or she fails to inform the patient adequately of the risks inherent in the procedure. In order for consent to be valid, a patient must have the capacity to decide on a particular course of action. A person is deemed to have capacity if they can

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  Understand the information relevant to the decision to be made

  
  
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  Retain the information in their mind

  
  
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  Weigh the information in the balance as part of the decision-making process

  
  
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  Communicate the decision

Capacity is not an all-or-nothing state, so a patient’s ability to make a choice may depend on how complex the factors involved in the decision are. Simple choices, with minimal consequences, may be reached by those who have limited ability for complex analysis, whereas increasingly complicated decisions associated with greater risks demand ever increasing degrees of capacity. A person who has capacity has the right of absolute autonomy over his or her body and may refuse investigation or treatment even if this results in dire consequences.¹ Disagreeing with one’s doctors or making seemingly illogical or foolish decisions does not necessarily reveal a lack of capacity.

In the United Kingdom, under the terms of the Mental Capacity Act (MCA) of 2005, all people aged 16 and older are presumed to have capacity unless proven otherwise. No one can give consent on behalf of another adult who lacks capacity unless that person has been entrusted with the patient’s lasting power of attorney (LPA) in a formal legal process. If an adult lacks capacity and has not appointed an LPA, his or her doctors are obliged to make treatment decisions on that person’s behalf. These decisions must be in the best interests of the patient.

For many women, labor is an extremely painful and mind-altering experience. It is understandable that the anesthesiologist in attendance might question the patient’s ability to give genuinely informed consent because a woman in the grip of frequent and powerful contractions, who may also have taken strong analgesia, may have a limited ability to participate meaningfully in the decision-making process. However, in the eyes of the law and of the medical profession, a woman in labor retains capacity and therefore the absolute right to determine what happens to her body in all but the most extreme situations. This remains true even if her decisions seem irrational, are contrary to medical advice, and may lead to severe injury or death. This was tested in court in the case of R v. Collins.² In this case, the patient, S, was in her thirty-sixth week of pregnancy when she developed severe preeclampsia. She was determined to deliver naturally and refused any treatment for the preeclampsia or to undergo cesarean delivery despite the risk this posed to her own life and to that of her unborn child. The Appeal Court judge ruled that an adult of sound mind is entitled to refuse treatment and, no matter how “morally repugnant” it might seem, this principle is not altered by her pregnant state because the fetus enjoys no legal personality or personhood.

Guidance on consent from the Association of Anaesthetists of Great Britain and Ireland (AAGBI) acknowledges that a laboring woman may be subject to many factors that might compromise her capacity, including “drugs, fatigue, pain or anxiety” but that “the compromise will need to be severe to incapacitate her.”³

Birth Plans

A birth plan is a record of a woman’s preferred plan of care for labor and will often include references to methods of pain relief. The birth plan does not have any formal legal status but should be respected by healthcare professionals as an expression of the woman’s values and wishes. If the patient were to lose capacity, her birth plan might give doctors added insight to assist them in making decisions in her best interests. Except in the most extreme of cases, however, a woman is presumed to retain capacity during labor and so is at liberty to change her mind and request an epidural at any point, even if her birth plan contains statements to the contrary.

The MCA of 2005 gave legal authority to “advance decisions” (the kind usually associated in our minds with decisions about end-of-life care), and women are at liberty to write these prior to labor. Should the woman lose capacity, an advance decision that has been witnessed and countersigned by a legal official is binding on the doctors. Patients may refuse stipulated treatments and interventions in their advance decisions, but they may not insist on treatment. To stress the point, such an advance decision would only be activated should the woman lose capacity. While she retains capacity, she is still at liberty to change her mind about her treatment options.

Jehovah’s Witnesses often make advanced decisions forbidding healthcare professionals from administering blood products. These patients are usually well informed and settled in their religious beliefs, but it is important to have an honest conversation with them about the risks of blood loss during even the most “low risk” labors and to ascertain exactly which blood products and treatments, if any, are acceptable to them. It is good practice to clarify unambiguously that they would refuse blood products even if this refusal might result in their death. It is therefore important that these women are seen by the anesthesiologist prior to delivery so that their exact wishes can be established. A list of products that can and cannot be given should be clearly documented in their notes, along with whether or not they will accept cell salvage. This documentation should be signed and dated and countersigned by the patient.