When patients lack decisional capacity, in the absence of an advance directive someone else has to make decisions about medical interventions on their behalf. This may be a person previously mandated by the patient to act as his or her proxy, a person authorised by law or a court order, a member of the patient’s family (see Box 2), or a healthcare professional.4
If the patient’s compromised state is temporary, it may be possible to wait until the patient has regained decisional capacity, but if this is not an option, medical intervention may proceed with the consent of someone the law recognises as an acceptable proxy. If no such proxy is available, intervention to prevent the patient’s death or “irreversible damage to his or her health” may be given, provided the patient has not previously refused such treatment or implied that he or she would refuse it.5
If there is conflict between clinicians’ and a proxy’s opinions about what is in a patient’s best interests (see Box 3), the HPCSA recommends seeking legal advice, with a view to applying for a court order.6 If the situation is an emergency, and there is no time to apply for a court order, intervention to prevent death or irreversible damage to the health of the patient as described above is permissible under the terms of the National Health Act.
Circumstances may arise where it is not easy to determine whether a patient is incapacitated or not. A woman in labour, for example, or a patient on strong analgesia is arguably not in the best position to think through their immediate options in a clearheaded manner. Consider the scenario of a woman with a post-partum haemorrhage who needs an emergency blood transfusion. She refuses, and cannot be persuaded to change her mind. Although her decision may seem irrational (ie, it is putting her life at risk), this in itself cannot be taken as evidence of a compromised decisional capacity (see Box 1, paragraph 4).
In cases like this, it would be helpful to consult with the patient’s family to find out whether the patient’s current expressed wishes are consistent with her character and previously stated preferences and beliefs. You should also discuss your options with senior colleagues and seek legal advice, if necessary. Ideally, a decision like this should be resolved by the courts, but if this is not possible, and it falls to the doctor to decide, it is extremely important to document the reasons for deciding one way or the other, together with details of discussions with the patient, family and colleagues.
When patients being seen over a period of time might conceivably end up in a life-threatening situation requiring a blood transfusion or emergency surgery, it is advisable to explore – and document – beforehand their views about what treatment they will and will not accept. In the above scenario, for example, such a discussion could take place during an antenatal consultation.
Box 2: When an adult patient lacks decisional capacity4
An advance directive must be honoured if the instructions and expressed preferences it contains are appropriate to the circumstances and there is no good reason to believe that the patient had subsequently changed his or her mind.
If there is no advance directive, or an advance directive is not relevant to the current clinical situation, one of the following surrogates (in the order of precedence listed below) may make decisions on the patient’s behalf:
- A proxy mandated in writing by the patient to make decisions on his or her behalf.
- A person authorised by law or a court order.
- The patient’s spouse or partner
- Adult child
- Brother or sister.
If none of the above surrogates exists, or can be contacted, the healthcare professionals responsible for the patient’s care must decide how best to proceed using the “best interests” principle (see Box 3). If the patient has never been mentally competent, or if his or her beliefs, values and preferences are unknown, the best interests principle should be applied by choosing the option a reasonable person would be most likely to prefer. Any treatment that is authorised by law or a court order or is necessary to protect public health may lawfully be carried out under the terms of the National Health Act. The NHA also allows for emergency treatment to prevent either death or irreversible damage to the patient’s health, provided the patient had not previously “expressly, impliedly or by conduct” refused such treatment.
Even if a patient is found to lack the decisional capacity to make an informed choice about the proposed treatment, he or she should still be included as far as possible in the decision-making process.
Box 3: The “best interests” principle
1 “In deciding what options may be reasonably considered as being in the best interests of a patient who lacks capacity to decide, health care practitioners should take into account:
1.1 The options for investigation or treatment which are clinically indicated;
1.2 Any evidence of the patient’s previously expressed preferences, including an advance statement;
1.3 Their own and the health care team’s knowledge of the patient’s background, such as cultural, religious or employment considerations;
1.4 Views about the patient’s preferences given by a third party who may have other knowledge of the patient, for example, the patient’s partner, family, carer, or a person with parental responsibility; 1.5 Which option least restricts the patient's future choices, where more than one option (including non-treatment) seems reasonable in the patient's best interests.
2 The South African Constitution and the HPCSA provides that ‘a child’s best interests are paramount in every matter concerning a child’.”
Source: HPCSA, Seeking Patients’ Informed Consent: The Ethical Considerations (2008), para 10.