Capacity and consent in the elderly

Is obtaining consent to healthcare for elderly patients any different from obtaining consent for other patients? 

The same requirements for valid consent to healthcare apply to all patients, elderly or younger.  Valid consent requires:

• capacity to give consent
• consent to be given voluntarily and
• consent to extend to the healthcare proposed. 

Important issues around capacity and vulnerability can arise for elderly patients. 

Assessing capacity
Age or frailty can give an impression of issues with capacity.  However, it should never be assumed that an elderly patient cannot give valid consent due to their age or condition alone.  It may be that they are able to give consent for certain healthcare, and be assisted formally or informally by others for other healthcare decisions.
 
For people to have capacity to make healthcare decisions they need to be able to:

• Understand the information being given, the nature of the decision and its consequences
• Retain the information as necessary to make the decision
• Use and weigh the information in the decision-making process
• Communicate their decision in some way.

 
Patients may have capacity to make some healthcare decisions, but not others.  A patient in the early stages of dementia may still have capacity to make decisions about simple procedures, but perhaps not very complex decisions.
 
Capacity can fluctuate. Lacking capacity on one day does not necessarily mean a patient cannot make the decision later if the treatment can be delayed.  Family and others close to the patient may be able to assist in assessing the likelihood of the patient regaining capacity. 
 
Potential ways to assess a patient’s capacity include:

• Using open ended questions, and not asking leading questions
• Whether the patient is able to paraphrase what they have been told
• If they can explain what the decision means for them, compare alternatives and appreciate possible consequences
• Considering cultural and linguistic diversity and its possible influence
• Whether it is the patient answering questions, but recognising that some patients may appropriately need support and still have capacity.
   

Where any doubt exists, you or an appropriate colleague should assess the capacity of the person to make the decision in question, drawing on the assistance of specialist colleagues as necessary. The assessment and the conclusions should be recorded in the patient’s clinical records.
 
Capacity is not necessarily questioned because of the reasonableness of a patient’s decision.  Patients can appropriately make decisions others might regard as irrational.  However, it may be a trigger for exploring their reasoning, understanding of possible implications and discussing alternative options.
 
Minimising inappropriate influences
How do you manage the risk of elderly patients being pressured into making decisions or having their decisions made for them by family members, carers or others?

Elderly patients can be particularly vulnerable.  Recognising and acknowledging actual and potential elder abuse is a real area of concern for medical practitioners.

There can be both appropriate and inappropriate influences on patient’s healthcare decision-making, whether from family, friends or elsewhere. 

The role of support persons and advocates for patients making a decision, whether informally or formally, is being increasingly recognised.  However, with these roles comes obligations to act in accordance with the patient’s wishes and interests. 

It is important to be conscious of potential influences, and whether they are exerting undue and unnecessary pressure on your patient.  

Things to consider include:

• Be satisfied that consent is given voluntarily by the patient and not under duress
• The behaviour of those around the patient. Is it supportive?
• Are the substitute decision makers considering the best interests of the patient, such as their wishes, preferences and rights?
• Are there any signs or risk factors of abuse, other harm or inappropriate influences?

 
If you have questions around these issues, or are uncertain how to deal with a particular situation, contact the MIGA claims & legal services team. 
Further resources

• MIGA - What is informed consent?
• MIGA - Advance care directives
• MIGA – Substitute consent
• MIGA – Elder abuse
• Capacity Australia – Mini-legal kits    
• NSW Justice – Capacity Toolkit

Links current at 21 April 2019