Journal of Law, Medicine and Ethics 47 (4):751-757 (2019)

Peter Koch
Villanova University
The use of decision-making capacity assessments in clinical medicine is an underdeveloped yet quickly growing practice. Despite the ethical and clinical importance of these assessments as a means of protecting patient autonomy, clinicians, philosophers, and ethicists have identified a number of practical and theoretical hurdles which remain unresolved.2 One ethically important yet largely unaddressed issue is whether, and to what extent physicians ought to inform and obtain consent from patients prior to initiating a capacity assessment. In what follows, I address the following question: Must, or should, physicians obtain consent for capacity assessments? I argue that physicians have an ethical obligation to obtain express patient consent for capacity assessments, and in doing so, I challenge the predominant view which requires physicians to merely inform patients without obtaining consent. I then identify an underlying philosophical paradox that complicates the clinician's duty to obtain consent: in short, consent is needed for an assessment of one's ability to consent. Finally, I recommend a practical solution to this paradox of consent for capacity assessments by proposing a model of double consent from both the patient and health care representative.
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DOI 10.1177/1073110519897752
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References found in this work BETA

Some Limits of Informed Consent.O. O'Neill - 2003 - Journal of Medical Ethics 29 (1):4-7.
Informed Consent Is the Essence of Capacity Assessment.Jeffrey P. Spike - 2017 - Journal of Law, Medicine and Ethics 45 (1):95-105.
Assent is Not Consent.Amanda Sibley, Mark Sheehan & Andrew J. Pollard - 2012 - Journal of Medical Ethics 38 (1):3-3.

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Citations of this work BETA

Focusing on Partnership in the Context of Limited Decision-Making Capacity.Neal W. Dickert - 2019 - Journal of Law, Medicine and Ethics 47 (4):758-759.

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