Healthcare Professionals and Supporting decision-making and assessing capacity

Fiona, who has advanced dementia, is cared for at home by her daughters Vera and Helga. She is admitted to hospital with abdominal pain and found to have gallstones. The surgeon, Dr Lee, recommends that she have her gallbladder removed.

Dr Lee meets with Fiona to discuss the surgery but, even after providing appropriate decision-making support, Dr Lee is concerned that Fiona may not have capacity to make the decision to consent to surgery. He explains to Fiona and her daughters that she would like to undertake a functional assessment of Fiona’s capacity.

Fiona’s daughters are present for the assessment to support Fiona. After the assessment is concluded, Dr Lee explains to Vera and Helga that Fiona lacks the capacity to make her own decision. Fiona does not have an advance healthcare directive or decision-making representation order in place. Dr Lee consults with Vera and Helga to try and ascertain what Fiona’s will and preference might be in relation to whether or not to have the surgery, but they are unable to agree on this.

Dr Lee’s own clinical judgement favours surgery but he acknowledges that not operating would also be a reasonable course of action. Vera feels that the surgery might be too dangerous for Fiona, while Helga fears a recurrence of abdominal pain. Fiona is currently not able to express her will and preferences and has not made any previous statement of her will and preferences that might inform any decision about the surgery. 

Dr Lee notes that neither daughter has legal authority to give or refuse consent on behalf of Fiona. He also notes that Fiona is now stable and that the issue of whether to operate or not can reasonably be deferred for a few weeks to allow further consideration and she may be able to make the decision herself then. Dr Lee explains to Vera and Helga that if the surgery becomes absolutely necessary and Fiona lacks capacity to decide about it at that time, a court application may be necessary so as to seek an order to proceed with surgery.

Comment: This vignette examines when it might be necessary to consider a court application. Neither Vera nor Helga has decision-making authority to decide regarding their mother’s proposed surgery. However, they clearly have ‘a bona fide interest in the welfare of the relevant person’ and Dr Lee appropriately consults them, especially in regard to ascertaining the past and present will and preferences of the relevant person. 

In the event that the surgery became absolutely necessary, and Dr Lee finds that Fiona lacks capacity for this decision at that time, there could be a referral to the Circuit Court, which in the first instance would determine whether Fiona has capacity for this decision. If the court decides that Fiona has capacity, then her decision is respected. If the court decides that she lacks capacity for this decision, then it can make the decision for her or invoke the necessary level of decision-making support under the Assisted Decision-Making (Capacity) Act 2015.