As a doctor I suggested to my patient admitted at hospital that they undergo lifesaving chemotherapy. My patient who has a history of depression has refused the treatment and has instead opted for herbal medication which in my professional opinion has no documented success in treating cancer. The patient is visibly distressed and wants to be discharged from the hospital at the earliest opportunity. I fear they do not have capacity to make this decision but am unsure what I should do?
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Answer by Neha Sharma, Hillsdale 2036 NSW
- Law about patients objecting to medical treatment is unclear and there are many different circumstances that may warrant urgent action on behalf of the doctor to make a decision for a patient they believe lacks capacity.
- The law recognises a rebuttable (refutable) right of autonomy for all adults and accepts that an adult has the capacity to consent to or refuse medical treatment. This means that they are presumed to have capacity until evidence is provided that convinces the court that they do not.
- If you do not believe your patient is lacking capacity to make a decision you should advise them of the consequences of refusal but must not unnecessarily make them stay at the hospital or forcefully administer treatment to them.
- The right to autonomy is rebutted (overturned) if it is established that an adult lacks capacity to make a particular decision.
- A patient may have an enduring guardianship document that enables another authorised person to make health decisions on behalf of the patient in emergency circumstances and where the patient lacks decision-making capacity.
- A person is generally considered as lacking decision-making capacity if:
- they cannot show evidence of understanding the consequences of their decision;
- they cannot comprehend and retain the information provided; or
- they display signs of disbelief and refuse to believe the diagnosis.
- The court recommends doctors to act according to the best interests of their patient until the issue is legally resolved.
- You may keep your patient in the hospital under observation if:
- you suspect your patient lacks capacity to make a decision regarding the treatment; and
- you believe that there is a foreseeable risk that on discharge they might harm themselves or somebody else.
- You should also obtain a professional assessment as to their decision-making capacity from a psychiatrist or psychologist.
- Depending on the circumstances you may require a court order to administer treatment to a person who lacks decision-making capacity and is not under a valid enduring guardianship agreement.