It might seem strange to locate discussion of incompetence under the heading of “exceptions.” Although patient competence serves as a prerequisite for informed consent, surely patient incompetence cannot serve to relieve physicians of all obligations, either ethical or legal, under the doctrine of informed consent. The goals of informed consent—safeguarding patient welfare and autonomy—apply no less to incompetent patients, although they must be pursued differently. The goals of informed consent are pursued on behalf of an incompetent patient by a process of surrogate decision making. A surrogate or proxy participates in the informed consent process on behalf of the incompetent patient. Yet, from the perspective of the physician, the patient’s incompetence constitutes an exception to the usual process of informed consent. A determination of incompetence alters the legal requirements for physician disclosure and for patient consent and thus it is properly regarded as an exception in this sense. This chapter, like the previous two, focuses on the legal doctrine of informed consent and addresses the variation in the legal requirements occasioned by a patient’s incompetence. We leave to others to examine in greater detail the ethical justifications for the legal framework surrounding treatment of incompetent patients (3). It has been recognized since the earliest legal cases dealing with consent that certain individuals are incompetent to consent to treatment and that they may be treated without their consent (4,5). One alternative to treatment without the patient’s consent would be no treatment at all (6), a result that would make a fetish of consent, for it would mean that those lacking the ability to make medical decisions would be required to forgo medical care. The exception for incompetent patients is closely related to the emergency exception. In fact, many situations involve an overlap of the two exceptions, since a number of cases of genuine emergency treatment involve unconscious (and thus incompetent) patients. However, the class of incompetent patients includes more than just those who are unconscious, and situations arise involving the treatment of incompetent patients that are not emergencies.
The protection of health in the care and trust relationship between doctor and patient: Competence, professional autonomy and responsibility of the doctor and decision-making autonomy of the patient
