In those cases in which the court is called upon to adjudicate competence for the
purposes of consent, the judge relies on the physician's clinical assessment as to the
patient's mental capacity as a point of reference.
e. Temporarily Impaired Judgment. As stated earlier, temporary conditions
causing impaired judgment, that is, depression, anxiety, effects of medication, physical
conditions causing altered mental states, etc., are not grounds for mental incapacity.
The patient's judgment may be clouded, for example, by drugs or infection. If the
patient's condition is not life threatening, the physician is obligated to help the patient
overcome these conditions before providing the information needed to obtain informed
consent.
f. Medicolegal Decisions for Mentally Incapacitated Persons. If the
physician is convinced that the patient is mentally incapacitated, there are several
options available. If the patient's condition is not life-threatening, the physician may
hold off on treatment, and seek psychiatric or other help (chaplain, social services). If
the condition is life-threatening, the physician may provide treatment based on implied
consent and applicable state laws covering such patients, i.e., patients suffering from
mental disease and those who are a danger to themselves or others. The physician or
hospital administrator can seek authorization from the courts to treat the incapacitated
person.
g. Substitute Consent. If a person is judged incompetent, a guardian is
appointed to make decisions on the patient's behalf. The guardian's authority may be
limited to a particular domain, such as business affairs, financial matters, or health care.
(Laws concerning competence and guardianship vary by state.) When someone else
has to provide substitute consent, the physician's responsibility to furnish all relevant
information needed for decision-making is not eliminated. The surrogate decision
maker (the legal guardian, the next of kin, or possibly the physician) acting on behalf of
the patient is entitled to the same information that the patient would have needed to
make an informed decision. Thus, the autonomy of the incompetent patient is, in some
sense, preserved. A guardian, who has legal authority to make most of the decisions
regarding the incompetent person's care, usually provides substitute consent. If there is
no guardian assigned, then the representative of the incompetent adult, perhaps a close
relative makes decisions concerning patient care. (Some patients with inadequate
mental capacity have never been determined to be incompetent by a court, so they do
not have guardians.)
SUBSTITUTE CONSENT IS AN INFORMED CONSENT INVOLVING
Disclosure.
Express consent.
Figure 1-22. A guardian with legal authority or a close relative who makes decisions on
behalf of the incompetent patient usually gives substitute consent.
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