1. Starr, Kristopher T. JD, MSN, RN, CEN, CPEN

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HAVE YOU RUN into a situation where a medical decision had to be made and you were concerned that your patient lacked the mental capacity to understand the issues? What should you do?

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When I teach senior undergraduate BSN students about nursing and the law, one of the key points I focus on involves how any healthcare situation can lead to legal issues. Imagine this scenario. A surgeon, Dr. C, goes into your 75-year-old female patient's room-let's call her Mrs. A-and obtains her consent for an elective procedure in the morning. All the "i"s are dotted and "t"s are crossed. After the surgeon leaves, you get ready to start your preoperative checklist.


When you walk into the room, you find Mrs. A sitting quietly, smiling. You indicate that you're going to start to prepare her for surgery and ask if she had any questions about her procedure tomorrow. She smiles brightly and tells you how wonderful it was that President John Fitzgerald Kennedy came to her room to see her a few minutes ago. Inquiring further, you quickly discover that Mrs. A thinks Dr. C is the 35th President of the United States, believes that the surgical consent form she signed was an RSVP to a White House dinner party, and has no clue that she's scheduled for surgery tomorrow-or ever. What do you do?


A recent study that involved over 3,000 persons (n = 3,746) over age 60 in the inpatient setting between 2000 and 2006 revealed that over 42% required medical decision making; of that group, over 70% lacked decisional capacity. Only two-thirds had advance directives.1 So, apply this to your daily interactions with older adults who may be suffering from dementia. Thinking back to our scenario, how would you resolve the competency issue with our JFK-admiring patient?


Assuming the patient hadn't executed an advance directive with an attached or separate power of attorney (POA) for healthcare, check if your state or locality has a law addressing surrogate decision making. Usually such a law is found in the state's health code. Then you have two legal options:


* Evaluate the potential for getting a POA for healthcare for your patient. If your patient is transiently forgetful or lacks capacity episodically, you could assess the patient during a period of lucidity and try to get the POA executed during that time. This avenue is something you'd recommend to the patient's family and you'd work cooperatively with them to arrange times for assessment. In the inpatient setting, a social worker can generally set this up with the family. In the outpatient or home setting, you'd refer the family to an elder law attorney or the state or county office of services for the aging and/or the local adult protective services agency.


As both a nurse clinician and an elder law practitioner, I often request that the family obtain a certification letter from the patient's primary care provider before I'll draft a POA for a patient with transient lucidity. This document, which assures that the patient was competent to sign legal documents, is both medical backup for my suspicions of transient lucidity and proof of capacity at or near the time of document execution.


* The more intrusive option is to establish a legal guardianship for the cognitively incapacitated patient. In most states, legal guardianship requires both a medical determination of incompetency by a licensed independent provider and a legal determination of incompetency by a judge. Once legal guardianship is instituted by a court of competent jurisdiction, decisional authority rests with the court appointed guardian, who then legally sits in loco parentis or "in place of the parent." In effect, the cognitively incapacitated older adult becomes the minor child and legal ward of the guardian.


So, where does all this legal jargon get us? Back to Mrs. A's JFK sighting. First and foremost, advocate for your patient. The nurse has to call Dr. C and report the capacity concerns. Second, document your findings and your conversation with Dr. C.


In cases like this, nurses are likely to run into resistance from surgeons, especially if they were just in the room and the patient smiled and signed on the dotted line. Remember, you may be the last line of defense for a patient about to undergo a procedure without giving truly informed consent. By taking steps in keeping with state law, you protect yourself from legal liability and the patient from his or her diminished capacity.




1. Silveira MJ, Kim SY, Langa KM. Advance directives and outcomes of surrogate decision making before death. N Engl J Med. 2010;362(13):1211-1218. [Context Link]