Specialist Neuropsychiatric Liaison Service
brain . mind . body integrative health
Patients suffering illnesses of brain or mind often require support in dealing with legal matters.The most common areas of concern are when a:
It is highly advisable that Psychiatrists be involvedwhenever any of these circumstances arise, as they are the only medical profession formally trained in the assessment and application of medical law and applied ethics.
There are various reasons why someone would need to be appointed to safeguard another’s affairs, ranging from financial, personal or otherwise. This need could arise due to mental illness, physical disability, or illness set on by old age.
Whatever the reason, any interested party may approach the High Court for the appointment of a curator bonis or a curator ad personam. This process is known as a curatorship application.
Types of curators
There are typically three types of curators, namely:
Who is susceptible to curatorship?
Any person incapable of managing their own affairs may be placed under curatorship. It could be that the person is mentally ill or physically disabled; it could also be that the person has a gambling addiction or a substance dependency and as a result thereof squanders his estate.
In matrimonial matters, curators could be used to safeguard the interests of minor children, where such interests often form the very dispute between parents and which may not always be sufficiently protected by an overworked family advocate.
A person who is compis mentis (in other words, a person with full mental capacity), but incapable of managing his own financial affairs may be declared a prodigal. In such an instance, a curator bonis may be appointed without the need for a curator ad litem. This is particularly useful in awards for damages where the amount awarded needs to be protected, but the person is of sound mind.
What is the process?
Initially, a request for the application of curatorship is brought by a friend, family member or care-giver. In some cases, an institution may bring the application.
In accordance with Rule 57 of the Uniform Rules of Court, the High Court is then requested to make an order declaring the patient to be of unsound mind and incapable of managing his own affairs.
Supporting affidavits by two medical practitioners, of which one must be a psychiatrist, must be provided.
The Court will then appoint a curator ad litem. This person will generally be an Advocate or an Attorney nominated by the person bringing the application, whose duty will be to represent the patient and compile a report on the investigation into possible curatorship appointment candidates. The findings will then be presented to the Master of the High Court, as well as the Court.
The curator ad litem is also responsible for recommending the appointment of a curator bonis or ad personam. The curator ad litem’s report is filed with the Master of the High Court who files a Master report either refusing or accepting the curator ad litem’s findings.
If the Master approves the appointment, he will give a list of the powers to be held by the curator. The matter is then set down again for hearing and a final order will be granted by the judge.
It is imperative to remember that in South Africa, there is no legal enduring power of attorney.
Thus, if the patient has given a family member or a friend a power of attorney to act on his behalf, this power of attorney falls away if the patient’s mental capacity diminishes below the legal threshold. Should this person continue to act in terms of the power of attorney, their actions amount to fraud.
The best interest of the patient, minor or prodigal is what should be uppermost in the mind of a curator. A relationship of great trust is created and it is of the utmost importance that the curator does not abuse his or her position.
2. Consent to Medical Treatment
In most situations, obtaining a patient’s valid consent to a procedure or treatment is a simple matter of following straightforward guidelines, but circumstances can occasionally develop in which conflicting principles must be resolved and this can pose a dilemma for clinicians.
To treat competent patients without their valid consent is a violation of their constitutional rights and transgresses a fundamental principle of medical law.
The basic rule is simple: no-one has the right to touch anyone else without lawful justification and if doctors do so it may well undermine patients’ trust as well as violate their rights to physical integrity.
The only exception to this rule is when the patient lacks the capacity (by virtue of his or her lack of maturity or a mental impairment) to give valid consent, in which case someone else has to make decisions on the patient’s behalf.
There are three components to valid consent:
Legal capacity has two components – age and decisional capacity.
The age component of legal capacity is determined by legislation – ie, the age at which the law confers certain rights and obligations on individuals at different stages in their lives.
The age of full legal capacity in South Africa is 18. In terms of consent to clinical treatment, this means that people of 18 and older should be assumed to have the decisional capacity to make choices on their own behalf, unless there is good reason to believe that they have a mental impairment that compromises their ability to make specific decisions.
Children of 12 or older who have the maturity to understand the implications of a proposed treatment may consent on their own behalf. If a surgical procedure is being proposed, the child's consent must be accompanied by a parent or guardian's written assent.
2. Decisional capacity
There are two overriding principles to bear in mind regarding a person’s capacity to consent to treatment:
Decisional capacity (also referred to as “mental capacity”) is variously defined as the capacity to make decisions in light of information about the relevant risks, benefits and consequences of the proposed intervention, specifically being able to:
Decisional capacity is not an “all or nothing” concept. A patient might, for example, be perfectly capable of grasping the implications of minor surgery to remove a sebaceous cyst, but be unable to comprehend all the risks and benefits associated with a bowel resection. The capacity to consent to treatment is, therefore, decision-specific.
A patient’s decisional capacity might also fluctuate over time – even in the course of a day – so the time at which consent is sought may be crucial.
Assessing decisional capacity
A person’s decisional capacity, or lack thereof, should not be judged simply on the basis of age, appearance, condition or any aspect of his or her behaviour.
If a patient’s decisional capacity is in doubt, a formal assessment should be carried out. In general, this means conveying information to the patient, discussing it to gauge his or her understanding and then asking questions about the salient points to see if the patient has grasped them. The focus should be on the reasoning the patient employs to arrive at a decision, rather than on the choice the patient makes – ie, not what the patient decides, but how he or she decides.
Patients with cognitive impairment should be supported and encouraged as much as possible to exercise their decisional capacity. This means delivering information in a form that they can understand and using visual and other aids to assist them if necessary. A speech and language therapist, a translator, or other professionals with special skills or knowledge might be needed to help with communication.
Other aspects to consider are the timing and location of an assessment. A patient’s mental state may fluctuate in the course of a day, so choosing the best time to assess someone is important. It is also important to be aware of the possible impact of the environment – if it is strange or intimidating, it may inhibit the patient or make him or her tense and agitated.
Even if a patient lacks decisional capacity, they should still be involved, as far as possible, in decisions that affect their lives. Patients who lack the decisional capacity to consent to treatment may still be able to assent (ie, indicate their willingness to go along with the proposed treatment).
The process of assessing a patient’s decisional capacity should be carefully documented, including all the evidence gathered to inform the judgment about the patient’s decision-making abilities – eg, past decisions made by the patient, the views of family and carers, and the results of formal functional tests.
Compromised decisional capacity
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, or a healthcare professional.
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.
If there is conflict between clinicians’ and a proxy’s opinions about what is in a patient’s best interests, the HPCSA recommends seeking legal advice, with a view to applying for a court order. 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.
The National Health Act 2003 makes it an offence to provide a health service to a user without the user’s informed consent.
Moreover, the National Patients Health Charter (2008) states: “Everyone has a right to be given full and accurate information about:
for one to make an informed decision that affects any one of these elements.”
Patients overtly coerced into undergoing treatment they plainly do not want may rightly claim that their “consent” was not given freely and is therefore not valid.
Cases of overt coercion are rare, but there are many circumstances in which patients may feel that they have been covertly pushed into accepting treatment they would prefer not to have had. For example, patients may sometimes find it very difficult to say “No” to the proposed treatment, or to challenge the doctor’s assumption that they would have no objections to going ahead, so it is best to check that they have no misgivings before proceeding.
Involuntary mental health patients
Under the Mental Health Care Act 2002, involuntary and assisted mental health care users do not lose their right to consent to treatment for illnesses other than mental illnesses, except where “a mental health care practitioner deems a user to be incapable of consenting to treatment or an operation due to mental illness or intellectual disability”. In such cases, a court-appointed curator or a family member may consent on the patient’s behalf. If none of these people are available, the head of the institution may grant consent.
Treatment for mental illnesses may only be given without the patient’s consent within the terms of the Mental Health Care Act 2002 – ie, if authorised by a court or a Review Board or in an emergency where failure to treat would result in “death or irreversible harm to the user” or in the user “inflicting serious harm to himself or others” or to property.
The Department of Health’s National Policy on Testing for HIV (“the Policy”) sets out the conditions that must be met for informed consent to HIV tests to be considered valid. Both pre- and post-test counselling is advisable.
While the issue of consent to disclosure of confidential information lies outside the scope of this booklet, it should be touched upon here because the health and wellbeing of the sexual partners of HIV-positive patients raises ethical concerns that are not easy to address if the patient refuses to disclose his or her HIV status. In this situation, the HPCSA offers the following guidance:
“If the patient refuses consent, the health care practitioner should use his or her discretion when deciding whether or not to divulge the information to the patient’s sexual partner, taking into account the possible risk of HIV infection to the sexual partner and the risks to the patient (eg, through violence) that may follow such disclosure.
Aside from anonymised testing of existing blood and tissue samples, the only circumstances in which HIV testing may be conducted without informed consent are:
Implied and express consent
Patients undergoing invasive procedures will normally give express consent – either by signing a consent form or stating that they agree to go ahead with treatment.
Written consent should be taken where:
However, consent is often implied by the patient’s compliance, an obvious example being when a patient rolls up a sleeve so that a blood sample can be taken. Nevertheless, patients should be told about the nature and purpose of any examination, investigation or procedure beforehand.
Any discussions with patients about the risks and benefits of a proposed procedure or treatment should be documented in the medical record.
Recording consent and consent forms
The presence of a signed consent form does not in itself prove valid consent to treatment – the important factors will always be the quality, extent and accuracy of the information given beforehand. Being able to demonstrate this afterwards depends on contemporaneous notes recording the key points discussed and relevant warnings given to the patient.
Patient information leaflets
Numerous studies have shown that patients retain comparatively little information given to them during a consultation, particularly if they are anxious or in pain. Many patients find it helpful if they are given written information as a reminder of the key points discussed.
However, written information is not a substitute for detailed discussion with patients and must be seen as an adjunct to, not a replacement for, that discussion. If information leaflet are used to augment discussion with a patient, this should be documented in the patient’s notes.
“Although the term ‘consent’ implies acceptance of treatment, the concept of informed consent applies equally to refusal of treatment or to choice among alternative treatments. Competent patients have the right to refuse treatment, even when the refusal will result in disability or death.”
Consent law would be completely pointless if it did not protect a patient’s right to refuse treatment. Doctors may not override a patient’s refusal of treatment simply because they think it is a foolish or illogical decision. And they may not disregard patients who choose not to take their advice.
If the patient is not giving clear reasons for refusing the proposed treatment, it may be worth probing a little further to find out whether he or she is harbouring hidden fears and anxieties that could be assuaged with further information and discussion. Any such discussion, however, must be conducted sensitively and respectfully, otherwise it could be construed as coercion.
Occasionally, it may be appropriate to assess the patient’s decisional capacity, but the patient’s refusal should never, in itself, be taken as evidence of lack of decisional capacity. If the patient is capable, he or she should be given all material information to ensure that the refusal is truly informed. Available alternatives should then be offered, with a reminder that the patient may change his or her mind.
Patients with decisional capacity may also withdraw consent for continuing treatment. If, during a procedure, a patient indicates that he or she wants you to stop, you should stop the procedure as soon as it is safe to do so and then explain the consequences of not proceeding further, without implying coercion. It is important to let patients know that stopping a procedure will not compromise their care.
The rights of patients who lack decisional capacity should also be respected in this regard. If they indicate that they want a procedure to stop because they are in pain or discomfort, their wishes should be complied with, as above.
3. Advance directives
An advance directive is a statement made by a competent adult in anticipation of a time in the future when he or she may lack the capacity to make healthcare decisions. Such statements usually take the form of advance refusal of specified treatments, but may also contain information about the patient’s values and beliefs.
The HPCSA states: “Where a patient lacks the capacity to decide, health care practitioners must respect any valid advance refusal of treatment.”
It further recommends encouraging patients with terminal conditions to appoint a proxy to make decisions on their behalf in the event of their losing decisional capacity. Moreover, patients should be given the opportunity to write a directive setting out their wishes regarding their future care to guide those who will be tasked with deciding what is in their best interests.
If there is any doubt about the validity or applicability of an advance decision (eg, there is reason to believe that the patient might have had a change of mind since drawing up the directive, or the current circumstances do not correspond to those specified in the directive), the patient should be provided with care to secure his or her best interests while the issue is resolved, if necessary by reference to the courts.
All decisions to withdraw or withhold treatment, either with or without the patient’s consent, should be fully and clearly documented in the patient’s medical record and accessible by all those involved in the patient’s care. Such documentation should include:
4. Do Not Resuscitate (DNR) orders
The decision not to institute CPR if it is likely to be successful should not be taken lightly, or in isolation. If the patient is competent, he or she should be involved in the decision making, as should the family (with the patient’s consent). Ideally, the whole healthcare team should also be consulted.
Ultimately, though, the decision rests with the senior clinician in charge of the patient’s care.
Such decisions should not be made on the basis of assumptions about the patient’s age, condition or perceived quality of life, but on a clinical assessment of the potential benefits and burdens of resuscitation on the individual, taking into account what is known about the patient’s views, beliefs and wishes and those of his or her close relatives.
If a DNR order is made, this should be clearly documented in the patient’s notes, together with the reasons for the decision and the process of decision making.