Aging & Health A to Z

Informed Consent

Basic Facts & Information

Except under extraordinary circumstances, you have the legal right to make decisions about your body and your medical care. Ideally, these decisions should be made by capable, informed patients after discussion with their physicians and other members of their healthcare team. This basic principle of informed consent is a legal and ethical practice that underlies medical care and research in the US. It is based on our society’s respect for independence and self-determination.

What is Informed Consent?

Informed consent is a legal doctrine stating that you have the power to choose among medically reasonable plans for your care. Carrying out informed consent requires effective communication between you and your healthcare professional.  It also requires that you be able to make informed choices and to discuss many things (as often as needed) with your healthcare team, including the following:

• your diagnosis
• the overall outlook (prognosis)
• the nature of the recommended tests or treatments
• the various options
• the risks and benefits of each options
• likely outcomes of each options

Informed consent does not mean that you can or should dictate your care. If a person asks for tests or treatments that health professionals considers useless or harmful, they do not have to do so. Your healthcare team has a duty to use their skills for your benefit and not to harm you. If you and your healthcare professional disagree about the type of care that you should receive, you should discuss the situation further so that your concerns are made clear and you can reach a decision that is mutually acceptable.

Decision-Making Capability

The process of informed consent makes sense only for people who have the ability to make informed decisions. Adults are presumed to have this capacity when they reach the age of majority.  In the US, this is 18 years of age. This does not change unless the individual is determined to be "incompetent or incapacitated" by a court of law. The terms "incompetent or incapacitated" are legal terms and apply specifically to legal cases in court.

In practical terms, healthcare professionals are sometimes asked to evaluate a person’s capacity to make decisions. If the professional finds that a person lacks the ability to make informed decisions about medical care, that person may be considered "incapable." This is significant because it means that decisions may then be made by someone other than the patient.

The term "diminished capacity" generally refers to specific types of decisions, not all decisions. For example, you may be capable of making decisions about medical care, but not about finances, or vice versa. This selective definition of capacity (often referred to as a "sliding scale") affords people more protection and self-determination. Of course, people who are unconscious or severely mentally impaired may lack capacity to make any decisions.

Judging the Capacity to Make Decisions

Medical Decisions

• ability to understand relevant information
• ability to understand the consequences of the decision
• ability to communicate a decision

Decisions of Self-Care

• ability to care for oneself
• ability to accept the needed help to keep oneself safe

Finances

• ability to manage bill payment
• ability to do calculations and keep track of funds

Last Will and Testament

• ability to remember estate plans
• ability to express logic behind choices

This ability to understand the situation may change over time. For example, a person with delirium may be mentally clear in the morning but confused in the evening.  An example might be having a high fever that clouds your thinking and makes you feel disoriented. When you are capable of making informed decisions, your choices should be respected. If there are times when you are not capable of making informed decisions, these decisions should be postponed (if possible) until you have regained your decision-making capacity.

People may be given a formal test to check their mental status when their capacity is questionable. But, even if someone does poorly on a mental-status test or has impaired memory, they may still have the capacity to make informed decisions. In these situations, extra care may be needed to make sure the person understands the risks, benefits, and consequences of the different plans of care.

It is important not to confuse decision-making capacity with so-called “rational” decisions. Decisions are often based on cultural, ethnic, or religious values and beliefs that vary from person to person. What is rational to one person might not seem rational to another. Requiring rationality would disqualify people who make highly personal or unconventional decisions. Beliefs that are "unwise, foolish, or ridiculous" do not make a person incompetent.

Updated: March 2012
Posted: March 2012