Vol. 18 No 3 | Spring 2016
A psychiatrist’s role in times of doubt
Dr Martien Snellen
Dr Geoff Thompson
Neil Murdoch QC
BA, LLB (Hons)

This article is 8 years old and may no longer reflect current clinical practice.

Psychiatrists are able to assist their gynaecological colleagues should any doubt exist regarding a patient’s ability to give informed consent for a particular medical or surgical intervention. In particular, two scenarios need to be considered:

  1. when there is a suspicion that a patient’s mental condition or cognitive capacity compromises their ability to give informed consent; and
  2. when a patient being treated as an involuntary patient needs non-psychiatric medical/surgical treatment.

Informed consent is considered to be given when a patient agrees to a proposed course of management based on their participation in a risk-benefit analysis. This requires that a patient acting autonomously must be competent to understand and decide for themselves, be free of any third-party coercion and be provided with all the relevant facts to make a decision. Those facts should include disclosure of the expected outcome of non-treatment, the risks of the proposed treatment and the expected benefit, and the risks and benefits of any alternative treatment. We need to remember that patients have both an ethical and legal right to make bad decisions, although most treatment refusals and withdrawals of consent to treatment are based on disruptions in the doctor-patient relationship. Communication problems between doctor and patient, lack of trust of the treating source and psychopathologic factors may all play a role. However, many medical practitioners are likely to attribute such dissonance to a patient’s lack of capacity or competence.

In Australia, the legal requirements involved in obtaining informed consent are principally derived from the law of negligence, as modified by statute. It is the medical practitioner’s legal duty to communicate to a patient who is considering a medical intervention the material risks of the proposed intervention. In Australia, two main legal principles will be considered:

  1. Did the medical practitioner disclose the pros and cons of each of the possible courses of management, and in particular, all of the risks that a reasonable person in the patient’s position would be likely to attach significance to?
  2. Did the medical practitioner disclose all of the risks of the possible courses of management that they knew, or should have known, the particular patient would attach significance to?

These requirements may seem rather onerous, but there is nothing in the above that sits outside of what is considered to be good medical practice. Obtaining consent involves good communication with patients that is positively beneficial in its own right, through increasing patient understanding, managing expectations, improving compliance and fostering a sense of empowerment and control. These principles are subject to what is referred  to as ‘the therapeutic privilege’. That is, a medical practitioner is said to be justified  in withholding information when they judge on reasonable grounds that the patient’s health, physical or mental, might be seriously harmed by the information. Although this exception to the general rule may appear to be of particular relevance to management of the mentally ill, in practice it is hardly ever employed. Its limits are unknown and reliance on it would be fraught with peril.

The first principle is covered by disclosing to the patient all known risks (including risks speculated in the medical literature) no matter how unlikely or unusual. As for the second, all that you have to do is ask the patient ‘do you have any specific concerns regarding the proposed treatment?’

Beneficence alone is no longer adequate. Within such doctrines were the imperative that medical practitioners have an ethical obligation to act, to the best of their judgment, for the benefit of patients, while at the same time doing no harm. There  is nothing wrong with this sentiment. However, historically, the ethos of ‘doctor knows best’ prevailed: patients were required to be obedient if they wished to receive treatment, and moral deception was considered justifiable. Things have changed since the middle of last century and the principle of autonomy has prevailed. It holds that a patient has the right to protect their bodily integrity, and is entitled to evaluate the different risks and dangers associated with each medical decision before making their choice.

Key points

Psychiatrists can assist their gynaecological colleagues to ensure that a patient is able to give informed consent for a medical procedure should any doubt exist regarding capacity to provide such consent. This involves establishing that the elements of competence, voluntariness, disclosure, recommendation, understanding, decision and authorisation have been addressed. Should a particular patient be unable to give informed consent due to mental impairment, a surrogate or third party may be legally authorised to consent to treatment on their behalf. In cases of emergency, in particular if an intervention is considered to be life-saving, treatment may proceed without informed consent. Clear and detailed documentation of the process in which informed consent is established or contested is essential.


The bioethicists Beauchamp and Childress suggest that there are seven key elements that constitute the principle of informed consent:

  1. Competence
  2. Voluntariness
  3. Disclosure
  4. Recommendation
  5. Understanding
  6. Decision
  7. Authorisation

Competence refers to a patient’s ability to understand a treatment option, deliberate regarding its risks and benefits, form a decision based on this deliberation and communicate their decision adequately. Should a patient be a minor (variously defined across different jurisdictions) or be deemed mentally or psychologically incompetent, a third party or surrogate may be required to make a decision on their behalf.

Voluntariness refers to the idea that a person acts voluntarily if they will an action in the absence of external constraints and coercions. However, surrogate decision-makers may be authorised to make treatment decisions when the patient is deemed to lack the competence to make decisions on their own behalf that are conducive to their best health outcome.

Disclosure refers to the provision of all relevant information regarding the condition, the prognosis, the possibilities of management and recommended course of action, together with information as to the material risks and benefits of any proposed treatment, alternative treatment or non-treatment. As a matter of principle, the following must be considered:

  • The nature of the risk (what is it?)
  • The magnitude of the risk (how big is it?)
  • The probability the risk might materialise (how likely is it?)
  • The imminence of risk materialisation (when will it happen?)

Recommendation refers to informing the patient of the opinion of the medical practitioner for the best treatment option.

A medical practitioner discusses treatment options with a patient and her partner.

Understanding is a much more vexed issue. A clinician cannot presume that the provision of medical information results in any particular patient appreciating the full nature and implications of any proposed treatment. Here we advise that the provision of information and the seeking of a decision and authorisation for such treatment be separated in time, where feasible. A patient needs to be given time to contemplate what they have been advised and have the opportunity to clarify any concerns or any misunderstanding that they may have. The medical practitioner should explore the patient’s understanding of the risks involved in the treatment and of the implications of non-treatment or alternative treatment before a decision is made.

Any decision to proceed with treatment needs to be made by a patient free of coercion, undue persuasion, manipulation by (misinformation or otherwise) and maleficence. Once such a decision is made it needs to be adequately communicated. Prior to surgery it has become mandatory that an informed consent to treatment form is signed. However, the evidentiary value of this form is limited if all that is disclosed by such a signature is that a discussion has occurred while revealing nothing as to what was discussed with the patient. Detailed clinical documentation of what transpired during the process of obtaining informed consent is essential. In some circumstances it may also be useful for this process to be witnessed by a third party.

Mental illness or psychological disturbance can compromise any or all of the above seven key elements. However, just because a person is unable to make informed decisions regarding their mental health, it does not mean they are incompetent to make decisions regarding their physical health. For example, a woman may be suffering from a psychotic illness that compromises her ability to appreciate that she is mentally unwell, yet at the same time she may properly be able to consent to a dilatation and curettage to address her menorrhagia.

‘All patients are presumed to be competent to consent until it is demonstrated that they are not.’

It is an incorrect assumption that people with a mental illness are uniformly deficient in decision-making abilities and it should be considered that impairment of decision-making may be selective. In each and every case, an individualised assessment of residual capacity must occur. Many patients with severe mental illness are unable to recognise they are mentally unwell or psychologically impaired; however, this does not necessarily mean that they are unable to recognise that they are physically unwell and in need of treatment. The question of competence is specific to the decision that needs to be made. Just because a patient disagrees with a medical practitioners’ opinion, it does not mean that they lack the ability to understand. A psychiatrist is able to assist other medical practitioners to ascertain that any particular patient within any healthcare scenario is able to give informed consent for the proposed treatment or whether any of the aforementioned key criteria cannot be met.

While competence can be seen in absolute terms (it either exists or it does not), capacity exists on a spectrum between the highly educated, materially secure, physically and mentally unimpaired mature adult to the illiterate, poor, physically unwell, depressed, brain-injured person suffering chronic pain and under the influence of medication or other substances. A competent patient may have a reduced capacity to make decisions. Factors that may affect competence and capacity to consent include: being under the influence of alcohol or drugs (prescribed, over-the-counter or illicit); delirium; cognitive impairment through dementia or other progressive neurological disease; intellectual disability; brain injury; communication disability; pain; fatigue; sleep deprivation; anxiety; depression and psychosis. Impairment of capacity to consent may also fluctuate.

In Australia, each state and territory has a Mental Health Act that determines that a person with a mental illness may be treated against their will if they do not have the capacity to recognise they need treatment and are a risk to either themselves or others, or risk further deterioration in their physical or mental health. Such treatment needs to occur in the least restrictive environment and be subjected to an external review process.

Should a patient lack competence to consent to essential non-psychiatric treatment, a third party may be enabled to make the decision on their behalf. Such third parties or surrogates include: parents on behalf of a minor, persons appointed by legislated bodies pursuant to guardianship legislation, a patient’s appointee under a medical power of attorney and a psychiatrist authorised by the relevant Mental Health Act. When medical treatment is required to save a patient’s life, to prevent serious damage to a patient’s health or to prevent the patient suffering or continuing to suffer significant pain or distress, such action as is necessary can be taken without seeking authorisation from any person. However, should an authorised person be readily available to give consent, good practice suggests that it should be sought.

Factors that will influence whether a third party can or should provide informed consent for a treatment on behalf of another include the imminence of any risk of non-treatment and the severity of the risk of non-treatment. Should a patient’s mental condition be temporary and a proposed gynaecological treatment not essential or not an emergency, a decision to proceed with treatment should be delayed until the patient regains capacity. However, should it be deemed that a treatment is essential and urgent, or that a patient’s capacity to give informed consent is unlikely to change, then authority to proceed with treatment should be sought from the appropriate third party or surrogate. A distinction needs to be made between essential and urgent treatment and elective or non-essential treatment.

Further reading

Beauchamp TL, Childress JF. Principles of Biomedical Ethics. 6th ed. New York, NY: Oxford University Press 2009.
Leo RJ. Competency and the Capacity to Make Treatment Decisions: A Primer for Primary Care Physicians. Prim Care Companion J Clin Psychiatry. 1999 Oct;1(5):131-141.
Snellen M, Thompson G, Murdoch N. The Process of Obtaining Informed Consent when Prescribing Psychopharmacology in Pregnancy. In: Psychopharmacology and Pregnancy: Treatment Efficacy, Risks and Guidelines. Eds. Galbally M, Snellen M & Lewis A. Springer 2014:5-17.

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