The main problem that renders some mentally disordered
patients incapable of informed consent does not, however,
involve these conditions. The problem is that mental disorder
prevents some patients from accepting that they need a medi-
cal intervention. We see this particularly in patients suffering
from psychotic illnesses such as schizophrenia. They may
understand the treatment proposed but still decline or refuse
it because, in their judgment, they are not ill or do not need
treatment for their difficulties. For example, a patient
suffering from psychotic illness may assert adamantly: “I
understand that you think I am ill, I understand your
proposed treatment and potential consequences of my taking
or my not taking the treatment, but I am not ill”, or: “I know I
am ill, I understand the proposed nature and purposes of the
treatment, but I don’t need treatment for it, because my illness
will disappear in the near future when I will be God”. Such
impaired judgment in patients suffering from psychotic
illnesses is inherent to their illness. We clinicians commonly
refer to this kind of judgment about their state of health as a
“lack of insight” into their condition.
That the patient’s acceptance of the need for a medical
intervention should not be prevented by his/her mental disorder,
is a condition necessary for informed consent. If any patient, even
if not mentally disordered, were to agree to treatment when s/he
did not accept that treatment was warranted or necessary, it
would cast serious doubt, to say the least, on whether such a
patient actually gave informed consent for this intervention. Of
course, there may be many reasons, valid or inv alid, for not
accepting that treatment is required. Clinical practice has it that
a patient’s lack of acceptance that treatment is necessary is dealt
with by honouring the patient’s choice irrespective of the
reasons giv en.
20
Pa tient refusals are presumed to be valid
exercises of autonomy. Congruently, the Law Commission has
recommended a “presumption against lack of capacity” and
that the resulting decision should not be regarded as invalid just
because it “would not be made by a person with ordinary
prudence”.
8
However, in the case of a patient who cannot accept that an
intervention is warranted or necessary, owing to a mental disor-
der, such a patient’s choice is not autonomous because it is
deter mined by the mental disorder. This also means that even
if such a patient were to agree to an intervention, it would be
farfetched to attest that s/he actually gave informed consent.
That a patient should believe the information about a
proposed intervention, as suggested in case law,
21 22
is also not
always the appropriate necessary condition to determine
capacity to give informed consent. For example, a deluded
patient may state: “I believe the information you have given
me about the proposed treatment, I believe the treatment may
be beneficial for some and even for me, but I shall not take it
because it does not befit me, being royalty from outer space, to
take the medicine from common humans”.
Of course, mental disorder does not necessarily prevent a
patient from accepting his/her illness and the need for a
medical intervention. Many patients, including those suffer-
ing from psychotic illnesses, do accept their illness and the
need for medical intervention. And, while some may not real-
ise the full extent of their illness, they can none the less give
infor med consent.
The clinician may find it helpful to have the abov e list of four
necessary conditions at hand when questions arise about a
patient’s capacity to giv e consent. It may be helpful in decisions
about specific treatments. For example, say consent is sought to
proceed with electro-convulsiv e treatment (ECT) for a severely
depressed patient who suffers from the Cotard’s delusion that
he is dead already and who therefore considers treatment to be
futile. Say the patient understands what he consents to—that is
ECT, he communicates his decision to go ahead with the ECT, and
he has chosen to follow the recommended advice. He thus meets
the first three conditions necessary for informed consent. He
will still not be capable of giving informed consent to the ECT,
how ever, because his mental illness prevents him from
accepting that he requires treatment.
The list of four necessary conditions may also be helpful in
decisions about a patient’s capacity to consent to participation
in research. For example, a patient who does not accept, owing
to his/her mental disorder, that s/he requires treatment is also
incapable of consenting to participation in research on medi-
cation for his/her illness. This is the case even though s/he
understands the nature and potential consequences of the
research, s/he chooses to participate, and communicates
his/her willingness to participate. The reason is that his/her
mental illness causes him/her to refute the need for efficacious
(non-placebo) treatment. S/he might even think that his/her
participating in the research serves to prove that treatment is
not really necessary. An argument against this stance might
claim that it is not necessary that this patient accept the need
for treatment, because a healthy person may consent to the
use of research medication even though s/he does not need it.
In fact, it is common practice to use healthy volunteers as
controls in medication research. The difference, however, is
that a healthy volunteer’s acceptance of not requiring the
treatment, is not affected by mental illness.
The capacity of a mentally ill patient to give informed con-
sent for a mental and physical clinical examination is a diffi-
cult issue practically, rarely addressed in the literature. The
problem is that it is hardly possible for a clinician to assess a
mentally ill patient’s capacity to give informed consent for a
clinical examination until s/he has examined the mental state
of the patient. Practically, this dilemma is eased in most civi-
lised countries by provisions of law—for example, a mental
health act, which may order or require a doctor to examine a
patient even without a patient’s consent. When informed con-
sent for a mental and physical examination is required,
though, the same conditions are necessary as for informed
consent to treatment and participation in research. A mental
disorder should not prevent a patient from understanding the
nature and purpose of the examination, from choosing
decisively whether to have it done or not to have it done, from
communicating his/her consent, and from accepting that the
examination is needed or warranted.
THE EXTENT OF INCAPACITY TO GIVE INFORMED
CONSENT
The Law Commission recommended, and the British govern-
ment accepted, a “functional approach” in determining
whether a person has the capacity to make a particular
decision.
8–10
This approach focuses on whether the individual is
able to make a decision at the time when it has to be made. It
allows for an individual to be incapable of making a particular
decision at one point in time, but indeed capable to make it at
another time—for example, after recovery. It also allows for
situations where the individual is capable of making some
decisions, but incapable of making others.
The conditions necessary to give informed consent, as they
have been identified above, are concordant with this
“functional approach” to making decisions. Capacity to make
decisions is not to be confused, however, with the capacity to
give informed consent. Capacity to make decisions is required
for someone to give informed consent, but informed consent
requires more than capacity to make decisions. It requires—
for example, trust and lack of coercion.
67
Moreover, informed
consent requires more than mere capacity. As seen above, it
requires that a mental disorder does not prevent “actual”
understanding of what is being consented to (rather than a
mere capacity to understand).
Furthermore, incapacity to give informed consent extends
to incapacity to give informed consent to medical interven-
tions for mental as well as physical conditions. For example,
say a patient were to agree to a medical intervention for his
gangrenous leg, but his mental disorder prevented him from
42 Van Staden, Krüger
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