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Consent, capacity and the right to say no

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To the Editor: Snow and Fleming identify an important and often ignored problem.1 Without commenting on their specific case, we would point out that assessing a patient’s medical decision-making capacity is part of every medical encounter,2 usually as an informal process and often without deliberative thought.

There are many pitfalls in the process, in Australia as elsewhere.3,4 Formal capacity assessment is not always required and not always triggered when needed. Competence is a legal construct varying across jurisdictions, but most capacity assessments by medical practitioners are not challenged and therefore not subjected to judicial review.5,6 The statement that all the doctors involved in the case described by Snow and Fleming agreed that the patient had capacity should be treated with caution — doctors may disagree about capacity but often keep their opinions to themselves. In difficult cases, it would be preferable to discuss the patient’s capacity with the other members of the treating team. We do not believe that the legal advice to the hospital that a neuropsychology report trumps a medical opinion is correct. Rather, we suggest that formal assessment of capacity…