Consent and Capacity in Intensive Care

Quick Answer

Consent and capacity form the cornerstone of ethical medical practice in the ICU. Valid informed consent requires three elements: the decision must be voluntary (free from coercion), the patient must be adequately informed (including material risks per Rogers v Whitaker), and the patient must have decision-making capacity (understanding, appreciation, reasoning, and communication of choice). In Australia, capacity assessment follows the four-domain test (Grisso and Appelbaum): understanding, appreciation, reasoning, and communication. Fluctuating capacity is common in ICU due to delirium (up to 80% of ventilated patients), sedation, and metabolic derangements, requiring repeated assessment. When capacity is absent, the substitute decision-maker hierarchy (varying by state) provides consent using substituted judgment (what patient would want) or best interests standards. Emergency treatment without consent is legally justified under the common law doctrine of necessity when treatment is urgent, the patient lacks capacity, no substitute is immediately available, and there is no known valid refusal. Special circumstances include Jehovah's Witness blood refusal (binding for competent adults; courts may override for minors under parens patriae), advance care directives (legally binding if valid, specific, and applicable), and mature minors (Gillick competence). Comprehensive documentation of capacity assessments, consent discussions, and emergency justifications is essential for medicolegal protection.

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CICM Exam Focus

What Examiners Expect

Second Part Written (SAQ):

Common SAQ stems:

• "A 72-year-old patient with delirium requires tracheostomy. The family disagrees with the recommended treatment. Discuss the legal and ethical framework for decision-making." (20 marks)
• "A 35-year-old Jehovah's Witness patient presents with massive GI hemorrhage requiring blood transfusion. Outline your approach to consent and management." (20 marks)
• "Describe the elements of valid informed consent and the legal standard for disclosure of risks in Australia." (10 marks)
• "A patient with an Advance Care Directive refusing mechanical ventilation presents unconscious with respiratory failure. Discuss the legal and ethical considerations." (15 marks)

Expected depth:

• Elements of valid consent (voluntary, informed, capacity)
• Rogers v Whitaker material risk test
• Four-domain capacity assessment (Grisso and Appelbaum)
• State-based substitute decision-maker hierarchy
• Common law doctrine of necessity for emergencies
• Specific situations (Jehovah's Witness, minors, advance directives)
• Documentation requirements

Second Part Hot Case:

Typical presentations:

• Delirious patient refusing treatment
• Family disagreement about goals of care
• Patient with advance directive and conflicting family wishes
• Jehovah's Witness requiring urgent surgery

Examiners assess:

• Systematic approach to capacity assessment
• Understanding of substitute decision-maker hierarchy
• Application of ethical principles (autonomy, beneficence, non-maleficence, justice)
• Communication skills with families
• Knowledge of legal framework
• Documentation standards

Second Part Viva:

Expected discussion areas:

• Elements of valid consent and capacity assessment
• Rogers v Whitaker and material risk disclosure
• Substitute decision-maker hierarchy by state
• Emergency treatment without consent
• Specific consent issues (blood transfusion refusal, minors, ACDs)
• Ethical frameworks for conflict resolution

Examiner expectations:

• Safe, consultant-level understanding of medicolegal framework
• Ability to assess capacity systematically
• Knowledge of state-based legislation
• Practical conflict resolution strategies
• Indigenous health considerations in consent

Common Mistakes

• Confusing capacity (clinical assessment) with competence (legal determination)
• Not recognising decision-specific and time-specific nature of capacity
• Assuming delirium automatically means incapacity (may have lucid intervals)
• Not understanding state-specific substitute decision-maker hierarchies
• Inadequate disclosure of material risks (Rogers v Whitaker standard)
• Poor documentation of capacity assessments and consent discussions
• Not involving interpreter services for non-English speakers

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Key Points

Must-Know Facts

1. Valid consent requires three elements: voluntary decision (free from coercion), informed (adequate disclosure of material risks), and capacity (decision-making ability)

2. Rogers v Whitaker (1992): Australian legal standard for disclosure - a risk is "material" if a reasonable person OR the specific patient would attach significance to it (patient-centered, not doctor-centered standard)

3. Capacity assessment (Grisso and Appelbaum): Four domains - Understanding (comprehend information), Appreciation (recognize personal relevance), Reasoning (weigh options logically), Communication (express consistent choice)

4. Capacity is decision-specific and time-specific: Patient may have capacity for simple decisions but not complex ones; capacity fluctuates with clinical condition (delirium, sedation, metabolic state)

5. Delirium and capacity: Up to 80% of mechanically ventilated patients develop delirium; CAM-ICU positive strongly suggests impaired capacity, but brief lucid intervals may allow limited decision-making

6. Doctrine of necessity: Common law allows emergency treatment without consent when: urgent to save life/prevent harm, patient lacks capacity, no substitute immediately available, no known valid refusal

7. Substitute decision-maker hierarchy: Varies by state (e.g., NSW "Person Responsible", VIC "Medical Treatment Decision Maker", QLD "Statutory Health Attorney"); generally: appointed guardian → enduring attorney → spouse/partner → adult children → parents → siblings

8. Advance Care Directives: Legally binding if made with capacity, specific to the clinical situation, and no evidence of revocation; must be followed even if clinician disagrees (but can seek ethics/legal review)

9. Jehovah's Witness blood refusal: Binding for competent adults; for minors, state emergency legislation and parens patriae doctrine allow court-ordered transfusion to save life

10. Documentation is essential: Record capacity assessment (method, findings, domains impaired), consent discussions, information provided, questions asked, and any emergency justifications

Memory Aids

VICS for Valid Consent:

• Voluntary (no coercion)
• Informed (material risks disclosed)
• Capacity present
• Specific to procedure

UARC for Capacity Assessment:

• Understanding (comprehend information)
• Appreciation (recognize applies to self)
• Reasoning (weigh options)
• Communication (express choice)

MEND for Doctrine of Necessity:

• Medically urgent (life-threatening)
• Emergency (cannot wait for SDM)
• No known refusal (check ACD)
• Document thoroughly

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Definition and Epidemiology

Definition

Informed Consent is the process by which a competent patient voluntarily agrees to a medical intervention after receiving adequate information about its nature, risks, benefits, and alternatives. It is both an ethical obligation (respecting autonomy) and a legal requirement (treatment without consent may constitute battery or assault).

Decision-Making Capacity is the clinical determination that a patient can understand, appreciate, reason about, and communicate a medical decision. Capacity is distinct from competence, which is a legal determination by a court.

Elements of Valid Consent:

Epidemiology

ICU-Specific Data:

• 60-80% of ICU patients lack decision-making capacity at some point during their admission (PMID: 21947231)
• Up to 80% of mechanically ventilated patients develop delirium (PMID: 11594896)
• Only 10-15% of ICU patients have a documented advance care directive on admission (PMID: 30626154)
• Surrogate decision-makers make 70-90% of treatment decisions in ICU (PMID: 25746323)
• Median time from ICU admission to family meeting: 3 days (varies widely)

Australian/NZ Data:

• ANZICS APD data: Most ICU admissions are unplanned, limiting advance care planning
• Victoria: Medical Treatment Planning and Decisions Act 2016 significantly changed SDM hierarchy
• Queensland: Powers of Attorney Act 1998 defines Statutory Health Attorney
• Indigenous Australians: 2-3× higher critical illness rates, often with multiple decision-makers in extended family structures

Risk Factors for Impaired Capacity in ICU:

• Delirium: most common cause (CAM-ICU positive in 60-80%)
• Sedation: propofol, benzodiazepines, opioids impair cognition
• Metabolic derangements: hypoxia, hypercapnia, uremia, hepatic encephalopathy
• Sepsis: systemic inflammation affects cognitive function
• Pre-existing cognitive impairment: dementia, intellectual disability
• Severe acute illness: shock, organ failure
• Psychiatric conditions: psychosis, severe depression, mania

High-Risk Populations:

• Aboriginal and Torres Strait Islander peoples: Higher rates of chronic disease, barriers to advance care planning, extended family decision-making structures
• Māori: Whānau (family) involvement essential, kaumātua (elder) may be key decision-maker
• CALD populations: Language barriers, different cultural approaches to death and dying, family-centered decision-making
• Elderly: Higher prevalence of cognitive impairment and delirium
• Patients with chronic mental illness: May have fluctuating capacity

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Applied Basic Sciences

Legal Framework

Australian Legal Context:

The Australian legal framework for consent and capacity derives from:

1. Common law (case law): Establishes fundamental principles
2. State-based legislation: Guardianship acts, advance directive legislation
3. Professional standards: Medical Board of Australia, CICM, ANZICS guidelines

Key Common Law Cases:

Rogers v Whitaker (1992) - The Material Risk Standard (PMID: Reference case):

This High Court of Australia case established that a doctor has a duty to warn a patient of a "material risk" of treatment. A risk is material if:

1. A reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it; OR
2. The specific patient, if warned of the risk, would be likely to attach significance to it (and the doctor knew or should have known this)

This "patient-centered" standard replaced the "Bolam test" (what a reasonable body of medical opinion would disclose) and places the emphasis on what the patient needs to know, not what the doctor thinks is sufficient.

Implications for ICU:

• Must disclose common risks AND rare but serious risks that would matter to a reasonable person
• Must ask about specific concerns (e.g., risk of paralysis for a pianist)
• Documentation of risk disclosure is essential for medicolegal protection
• Failure to disclose a material risk that eventuates = negligence, even if procedure performed correctly

State-Based Legislation:

Ethical Principles

Beauchamp and Childress' Four Principles (PMID: 7943980):

Tension between principles:

• Autonomy vs beneficence: Patient refuses beneficial treatment
• Autonomy vs non-maleficence: Patient requests harmful treatment
• Individual autonomy vs justice: Futile treatment consumes resources

Substituted Judgment vs Best Interests:

Substituted judgment is preferred as it better respects autonomy by attempting to honor what the patient would have wanted. Best interests is used when no prior evidence of patient's wishes exists (PMID: 25746323).

Psychological and Neurological Basis

Cognitive Requirements for Capacity:

Capacity requires intact:

1. Attention: Ability to focus on information (impaired in delirium)
2. Memory: Retain information long enough to use it (working memory)
3. Executive function: Reasoning, weighing options, planning (frontal lobe)
4. Language: Comprehension and expression
5. Insight: Recognition that information applies to oneself

Delirium and Capacity (PMID: 11594896, 30103283):

Delirium is an acute confusional state characterized by:

• Acute onset and fluctuating course
• Inattention (core feature)
• Disorganized thinking OR altered level of consciousness

CAM-ICU (Confusion Assessment Method for ICU) is the validated screening tool:

• Sensitivity: 93-100%
• Specificity: 89-100%
• RASS ≥ -3 required for assessment (deeper sedation = "unable to assess")

A positive CAM-ICU strongly suggests impaired capacity but is not a formal legal capacity assessment. Patients may have brief "lucid intervals" where capacity is present, particularly during spontaneous awakening trials.

Sedation and Capacity (PMID: 29112706):

Fluctuating Capacity:

• Common in ICU due to changing clinical state, sedation, delirium
• "Windows of opportunity" during lucid intervals
• Document capacity at specific time; reassess if condition changes
• May need to time important discussions during periods of relative lucidity

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Clinical Presentation

Scenarios Requiring Capacity Assessment in ICU

Scenario 1: Delirious Patient Refusing Treatment

• Patient becoming agitated, pulling at lines, refusing to cooperate
• CAM-ICU positive (inattention, disorganized thinking)
• History: No prior advance directive, no appointed SDM
• Challenge: Urgent need for treatment vs apparent refusal

Scenario 2: Patient with Advance Care Directive

• Elderly patient with COPD, known ACD stating "no mechanical ventilation"
• Presents with acute exacerbation, hypoxemic respiratory failure
• Family wants "everything done"
• Challenge: Validating ACD, conflict with family

Scenario 3: Jehovah's Witness with Hemorrhage

• 45-year-old Jehovah's Witness with massive upper GI bleed
• Hemoglobin 52 g/L, hemodynamically unstable
• Patient is alert and oriented, refusing blood transfusion
• Challenge: Respecting autonomy vs preserving life

Scenario 4: Teenager Refusing Treatment

• 16-year-old with diabetic ketoacidosis refusing insulin
• Parents are Jehovah's Witnesses but DKA treatment doesn't involve blood
• Patient claims to understand risks but says "God will heal me"
• Challenge: Assessing Gillick competence; parental authority

Capacity Assessment Process

Step 1: Determine if Capacity Assessment is Needed

• Is there a reason to doubt capacity? (Altered GCS, delirium, psychiatric condition, unusual decision)
• Higher stakes decisions warrant more careful assessment
• Presumption of capacity unless demonstrated otherwise

Step 2: Optimize Conditions for Assessment

• Ensure patient is as alert as possible (lighten sedation if safe)
• Treat reversible causes of impaired cognition (hypoxia, hypoglycemia, electrolytes)
• Use appropriate communication aids (hearing aids, glasses, interpreter)
• Choose optimal time (after rest, when calm, not during acute distress)

Step 3: Screen for Delirium

• Apply CAM-ICU if RASS ≥ -3
• If CAM-ICU positive, capacity likely impaired but proceed with formal assessment if needed

Step 4: Apply Four-Domain Assessment (UARC)

Understanding (Comprehension of information):

• Explain diagnosis, prognosis, proposed treatment, alternatives, risks, benefits
• Ask patient to explain back in their own words
• "Can you tell me what I've explained about your condition?"
• "What do you understand about the treatment I'm proposing?"

Appreciation (Recognition of personal relevance):

• Does patient recognize how information applies to them?
• "How do you think this illness is affecting you?"
• "What do you think will happen if you have/don't have this treatment?"
• Red flag: Denial of illness when clearly unwell

Reasoning (Ability to weigh options):

• Can patient logically compare options and consequences?
• "How did you reach your decision?"
• "What factors are most important to you in making this choice?"
• "What would be the advantages and disadvantages of each option?"

Communication (Expression of consistent choice):

• Is choice clear and stable over time?
• Can patient articulate their decision?
• Reassess consistency (for non-urgent decisions, ask again later)

Step 5: Document Findings

• Record method of assessment (CAM-ICU, structured interview)
• Note findings in each domain
• State conclusion: capacity present/absent for the specific decision
• If capacity absent, identify reversible factors and reassessment plan

Capacity Assessment Tools

MacArthur Competence Assessment Tool for Treatment (MacCAT-T) (PMID: 9326381):

• Standardized semi-structured interview
• Evaluates understanding, appreciation, reasoning, choice
• Gold standard for research
• Time-consuming (15-20 minutes); less practical for ICU

Aid to Capacity Evaluation (ACE):

• Shorter structured assessment
• Yes/No questions in each domain
• More practical for bedside use

Clinical Judgment:

• Most common approach in ICU
• Informal conversation-based assessment
• Less standardized but more feasible
• Should still address all four domains

CAM-ICU (PMID: 11594896):

• Screens for delirium, not formal capacity assessment
• Positive CAM-ICU = likely impaired capacity
• Negative CAM-ICU = proceed with formal capacity assessment if needed

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Investigations

Assessment Tools

CAM-ICU Scoring:

CAM-ICU Interpretation:

• Delirium present: Feature 1 + Feature 2 + (Feature 3 OR Feature 4)
• Requires RASS ≥ -3 to assess

RASS (Richmond Agitation-Sedation Scale):

Capacity Assessment Documentation Template:

CAPACITY ASSESSMENT - [Specific Decision]
Date/Time: ____
Assessor: ____
Clinical Context: ____

Pre-assessment:
- CAM-ICU: Positive/Negative/Unable to assess
- RASS: ____
- Reversible factors addressed: Yes/No (specify)
- Communication aids used: ____

Assessment by Domain:
1. UNDERSTANDING: (Can patient explain condition, treatment, risks?)
   Finding: Intact / Impaired
   Evidence: ____

2. APPRECIATION: (Does patient recognize personal relevance?)
   Finding: Intact / Impaired
   Evidence: ____

3. REASONING: (Can patient weigh options logically?)
   Finding: Intact / Impaired
   Evidence: ____

4. COMMUNICATION: (Is choice clear and consistent?)
   Finding: Intact / Impaired
   Evidence: ____

CONCLUSION: 
For the specific decision regarding [treatment], this patient:
[ ] HAS decision-making capacity
[ ] DOES NOT have decision-making capacity

If no capacity:
- Reversible factors: ____
- Plan for reassessment: ____
- Substitute decision-maker identified: ____

Signature: ____ Date: ____

Laboratory and Imaging

Investigations for Reversible Causes of Impaired Capacity:

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ICU Management

Obtaining Valid Consent in ICU

When Patient Has Capacity:

1. Information Disclosure (Rogers v Whitaker standard):

   • Nature of proposed treatment
   • Expected benefits
   • Material risks (common AND rare but serious)
   • Alternatives (including no treatment)
   • Uncertainties
   • Answer patient's questions

2. Ensure Voluntariness:

   • Patient free from coercion by family, staff, or institution
   • Adequate time for decision (where clinically possible)
   • No manipulation or undue influence

3. Verify Capacity:

   • Apply UARC assessment if any doubt
   • Document capacity finding

4. Obtain and Document Consent:

   • Verbal consent is legally sufficient for most ICU interventions
   • Written consent for surgical procedures, high-risk interventions
   • Document discussion, information provided, questions, decision

When Patient Lacks Capacity (Non-Emergency):

1. Identify Substitute Decision-Maker:

   • Check for appointed guardian or enduring attorney (medical)
   • Apply state-specific hierarchy (see below)
   • Verify identity and relationship

2. Obtain Substitute Consent:

   • Explain situation to SDM
   • Provide same information as would give to patient
   • SDM should use substituted judgment (what patient would want)
   • If patient's wishes unknown, use best interests standard

3. Document:

   • SDM identity and relationship
   • Basis for SDM's decision (known patient wishes vs best interests)
   • Information provided
   • SDM's decision

Substitute Decision-Maker Hierarchy (State-Specific)

New South Wales (Guardianship Act 1987 - "Person Responsible"):

1. Guardian appointed by Guardianship Division
2. Enduring Guardian appointed by patient
3. Spouse or de facto partner (including same-sex)
4. Carer (non-paid, provided domestic support)
5. Relative or friend

Victoria (Medical Treatment Planning and Decisions Act 2016):

1. Medical Treatment Decision Maker appointed by patient
2. Guardian appointed by VCAT
3. Spouse or domestic partner
4. Primary carer
5. Adult child
6. Parent
7. Adult sibling

Queensland (Powers of Attorney Act 1998):

1. Attorney under Enduring Power of Attorney
2. Guardian appointed by QCAT
3. Statutory Health Attorney:
   • Spouse (including de facto)
   • Adult child aged 18+
   • Parent
   • Adult sibling aged 18+

Western Australia (Guardianship and Administration Act 1990):

1. Guardian appointed by State Administrative Tribunal
2. Enduring Guardian
3. Spouse or de facto partner
4. Adult child
5. Parent
6. Sibling

South Australia (Advance Care Directives Act 2013):

1. Substitute Decision-Maker appointed by patient
2. Spouse or domestic partner
3. Adult child
4. Parent
5. Adult sibling
6. Other person who has close relationship

Emergency Treatment Without Consent

Common Law Doctrine of Necessity:

Emergency treatment without consent is legally justified when ALL of the following conditions are met (PMID: 15383008):

1. Urgency: Treatment is necessary to save life or prevent serious harm to health
2. Incapacity: Patient lacks decision-making capacity
3. No substitute available: SDM cannot be identified or contacted in time
4. No known refusal: No valid Advance Care Directive refusing the treatment
5. Best interests: Treatment is what a reasonable practitioner would consider in patient's best interest

Statutory Reinforcement (varies by state):

• NSW: Guardianship Act 1987, Section 37 (urgent medical treatment)
• VIC: Medical Treatment Planning and Decisions Act 2016, Section 53
• QLD: Powers of Attorney Act 1998, Section 63

Documentation for Emergency Treatment:

EMERGENCY TREATMENT WITHOUT CONSENT
Date/Time: ____
Patient: ____

1. Clinical Emergency:
   - Condition: ____
   - Why treatment is urgent (life-threatening/serious harm): ____

2. Incapacity:
   - Reason patient lacks capacity: ____
   - CAM-ICU result: ____
   - RASS: ____

3. Substitute Decision-Maker:
   - SDM not available because: ____
   - Attempts to contact: ____

4. Advance Care Directive:
   - Checked: Yes/No
   - ACD present: Yes/No
   - Relevant refusal: Yes/No

5. Treatment Provided:
   - Intervention: ____
   - Rationale (best interests): ____

Signature: ____ Date/Time: ____

Special Consent Situations

Jehovah's Witness and Blood Transfusion (PMID: 21299281, 25310156)

Competent Adult Jehovah's Witness:

• A competent adult's informed refusal of blood transfusion is legally binding
• Must verify:
  • Patient has capacity
  • Decision is voluntary (not under family pressure)
  • Patient understands consequences (including death)
  • Refusal is specific to blood products (some accept components)
• Document carefully
• Provide all non-blood alternatives
• Cannot override even if patient will die

Incapacitated Jehovah's Witness:

• Check for Advance Care Directive refusing blood
• Valid ACD is legally binding
• If ACD exists, follow it
• If no ACD, SDM may consent to blood if in patient's best interests
• BUT respect known prior expressed wishes if specific and recent

Jehovah's Witness Minor (PMID: 23944634, 30252516):

• State emergency legislation allows blood transfusion to save minor's life
• Parens patriae: state can protect child's best interests
• NSW: Children and Young Persons (Care and Protection) Act 1998, s174/175
• VIC: Children, Youth and Families Act 2005
• Courts consistently override parental/minor refusal when life-threatening
• Seek urgent court order if time permits; proceed under necessity if not

Practical Approach:

1. Assess capacity carefully
2. Confirm refusal is specific (some accept albumin, fractionated products)
3. Document the "card" (Advance Medical Directive carried by members)
4. Offer all alternatives (cell salvage, erythropoietin, antifibrinolytics, iron, restrictive transfusion)
5. For minors: escalate urgently to hospital administration, seek court order
6. For life-threatening emergency in minor: transfuse under necessity, document

Minors and Gillick Competence (PMID: 23944634)

Marion's Case (1992): Australian recognition of Gillick competence - a minor can consent to treatment if they have "sufficient understanding and intelligence to enable them to understand fully what is proposed."

Assessment of Gillick Competence:

• Understand nature and purpose of treatment
• Appreciate likely effects and risks
• Grasp alternatives
• Retain information to make decision
• Weigh information and express choice
• Understanding corresponds to complexity of decision

Consent for Minors:

Parental Responsibility:

• Both parents generally have equal authority
• One parent's consent is usually sufficient
• If parents disagree on major treatment, may need court involvement
• Court can override parental refusal if in child's best interests

Advance Care Directives (PMID: 27032549, 30626154)

Types of Advance Care Directives:

Validity Requirements (vary by state):

• Made by person with capacity at time of creation
• Voluntary (no coercion)
• In writing and signed
• Witnessed appropriately (state-specific requirements)
• Not revoked (can be revoked orally or in writing while competent)

When to Follow ACD:

• Document is valid
• Applies to current clinical situation
• Patient currently lacks capacity
• No evidence patient changed their mind

When ACD May Not Be Followed:

• Not specific to current situation
• Made without adequate information about current condition
• Evidence patient revoked or changed views
• Circumstances have changed significantly
• Clinical situation not anticipated when ACD made

Conflict with ACD:

1. Confirm validity
2. Assess applicability to current situation
3. Seek clarification from SDM if appointed
4. If genuine conflict, seek ethics and/or legal consultation
5. Document reasoning carefully

Communication and Conflict Resolution

Family Meeting Structure (PMID: 24887459):

1. Preparation:

   • Review patient's condition, prognosis, goals
   • Identify key decision-makers
   • Arrange interpreter if needed
   • Choose quiet, private location

2. Opening:

   • Introductions (all staff present)
   • Establish shared understanding of meeting purpose
   • Ask family what they understand

3. Information Sharing:

   • Clear, jargon-free language
   • Present diagnosis, prognosis honestly
   • Pause for questions
   • Check understanding (teach-back)

4. Exploration:

   • "What do you think [patient] would want?"
   • "What are the things most important to [patient]?"
   • Elicit substituted judgment if possible

5. Recommendation:

   • Provide clear medical recommendation
   • Explain reasoning
   • Frame in terms of patient's values/goals

6. Deliberation:

   • Allow time for questions
   • Address concerns
   • May need follow-up meeting

7. Closing:

   • Summarize decisions
   • Document
   • Arrange follow-up

Conflict Resolution (PMID: 24438418):

Indigenous Health Considerations:

• Aboriginal and Torres Strait Islander peoples:

  • Extended family decision-making structures (not just "next of kin")
  • May need community elder or cultural liaison involvement
  • "Sorry Business" may affect timing of discussions
  • Use Aboriginal Health Worker or Aboriginal Liaison Officer
  • Allow time for family to gather
  • Respect cultural practices around dying and death

• Māori:

  • Whānau (extended family) involvement essential
  • Kaumātua (elder) may be key cultural authority
  • Tikanga (Māori customs) should be respected
  • Involve Māori Health Worker or Kaiāwhina
  • Spiritual considerations important (tapu, noa, wairua)

Documentation Requirements

Minimum Documentation for Consent:

1. Date and time of discussion
2. Who was present
3. Information provided (diagnosis, treatment, risks, benefits, alternatives)
4. Patient's questions and answers given
5. Capacity assessment (if any doubt)
6. Decision made (consent given/refused)
7. Signature of person obtaining consent
8. Written consent form for high-risk/surgical procedures

Minimum Documentation for Substitute Consent:

1. Reason patient lacks capacity
2. Identity of SDM and relationship/authority
3. Basis for SDM's decision (known patient wishes vs best interests)
4. Information provided to SDM
5. SDM's decision

Minimum Documentation for Emergency Treatment:

1. Nature of emergency
2. Reason patient lacked capacity
3. Efforts to contact SDM
4. Check for Advance Care Directive
5. Treatment provided and rationale
6. Reassessment plan

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Monitoring and Complications

Ongoing Capacity Monitoring

Daily Assessment:

• Perform CAM-ICU at least twice daily for all ventilated patients
• Reassess capacity before any significant treatment decision
• Document trends in cognitive status

Triggers for Capacity Reassessment:

• Improvement in clinical condition
• Lightening of sedation
• Resolution of metabolic derangement
• Patient expressing wish to participate in decisions
• Change in treatment plan requiring consent

Complications of Inadequate Consent Process

Legal Risks:

• Battery: Treatment without valid consent
• Negligence: Failure to disclose material risks (Rogers v Whitaker)
• Assault: Physical examination without consent

Clinical Risks:

• Patient distress from unwanted treatment
• Family conflict and breakdown of therapeutic relationship
• Delayed treatment while resolving disputes
• Moral distress in staff

Medicolegal Protection:

• Comprehensive documentation
• Use of structured consent processes
• Ethics consultation for difficult cases
• Second opinions for major decisions
• Family meetings with clear communication

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Prognosis and Outcome Measures

Capacity Recovery

Factors Predicting Capacity Recovery:

• Resolution of delirium
• Successful weaning from sedation
• Correction of metabolic derangements
• Treatment of sepsis
• No permanent neurological injury

Timeline:

• Delirium-related incapacity: Usually resolves within days to weeks
• Post-operative cognitive dysfunction: May persist for weeks to months
• Hypoxic brain injury: May be permanent
• Pre-existing dementia: Generally irreversible

Documentation Quality

Audit Measures for Consent Documentation:

• Percentage of high-risk procedures with written consent
• Completion of capacity assessment documentation
• Identification of substitute decision-makers
• Advance care directive screening on admission
• Family meeting documentation

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Progressive Difficulty Assessments

Basic Level (Foundation Knowledge)

Question 1: Elements of Valid Consent

Q: List the three essential elements of valid informed consent.

A:

1. Voluntary: Decision made freely without coercion
2. Informed: Adequate disclosure of information including material risks
3. Capacity: Patient has decision-making ability for the specific decision

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Question 2: Capacity Domains

Q: List the four domains of decision-making capacity assessment.

A: (UARC)

1. Understanding: Comprehension of relevant information
2. Appreciation: Recognition of how information applies to oneself
3. Reasoning: Ability to weigh options logically
4. Communication: Ability to express a clear and consistent choice

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Question 3: Material Risk

Q: According to Rogers v Whitaker, when is a risk considered "material"?

A: A risk is material if:

1. A reasonable person in the patient's position would attach significance to it; OR
2. The medical practitioner knows or should know that the particular patient would attach significance to it

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Question 4: Emergency Treatment

Q: List four conditions that must be met to provide emergency treatment without consent under the doctrine of necessity.

A:

1. Treatment is urgent (life-threatening or serious harm imminent)
2. Patient lacks decision-making capacity
3. No substitute decision-maker immediately available
4. No known valid refusal (Advance Care Directive)

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Intermediate Level (Applied Knowledge)

Question 1: Case-Based Scenario

Stem: A 68-year-old woman is admitted to ICU with community-acquired pneumonia and respiratory failure. She requires intubation and mechanical ventilation. On Day 3, she is CAM-ICU positive and RASS -1. Her daughter asks you to place a PEG tube as she "wouldn't want to starve." You are unable to contact the patient's husband.

Q1: Does this patient have decision-making capacity? Justify your answer. (3 marks)

A1:

• CAM-ICU positive indicates delirium (1 mark)
• Delirium significantly impairs capacity, particularly understanding and reasoning (1 mark)
• However, capacity is decision-specific and should be formally assessed if a non-urgent decision is needed (1 mark)

Q2: Who has the authority to consent to PEG insertion in New South Wales? (3 marks)

A2: Under the Guardianship Act 1987 (NSW), the "Person Responsible" hierarchy is:

1. Guardian appointed by Guardianship Division (if any) (1 mark)
2. Spouse (husband in this case) - takes precedence over daughter (1 mark)
3. Daughter would only have authority if husband is unavailable or there is no spouse (1 mark)

Q3: What should you do in this situation? (4 marks)

A3:

1. Continue efforts to contact husband as he is the legal Person Responsible (1 mark)
2. PEG is not an emergency; can wait for appropriate SDM (1 mark)
3. Consider whether patient may regain capacity to decide herself (delirium may resolve) (1 mark)
4. Document attempts to contact husband and explain to daughter why she cannot consent at this time (1 mark)

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Question 2: Advance Care Directive

Stem: A 75-year-old man with severe COPD presents with acute exacerbation. He has an Advance Care Directive stating "I do not wish to be placed on a ventilator if I develop respiratory failure." He is now unconscious with PaCO2 of 12 kPa and PaO2 of 5 kPa on high-flow oxygen. His wife says "You must intubate him. He would never want to die like this."

Q: Outline your approach to this clinical and ethical dilemma. (10 marks)

A:

Assessment of ACD Validity (3 marks):

• Was it made when patient had capacity?
• Was it witnessed appropriately?
• Is it applicable to current situation? (This appears directly relevant)

Conflict Analysis (2 marks):

• ACD is specific and directly applicable (no intubation for respiratory failure)
• Wife's request conflicts with documented patient wishes
• Substituted judgment (what patient wanted) takes precedence over wife's opinion

Ethical Framework (2 marks):

• Autonomy: Patient has right to refuse treatment, even life-sustaining
• ACD extends autonomy into periods of incapacity
• Wife may be experiencing distress and denial

Management (3 marks):

• If ACD is valid and specific, it is legally binding (1 mark)
• Provide non-invasive support (NIV if acceptable to patient's wishes, oxygen, comfort care) (1 mark)
• Have compassionate discussion with wife; explain legal obligation to follow ACD; offer ethics consultation if conflict persists (1 mark)

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Exam Level (CICM Second Part Standard)

SAQ Practice: See dedicated SAQ section below

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SAQ Practice

SAQ 1: Consent and Capacity in Delirious Patient

Time Allocation: 10 minutes Total Marks: 20

Stem:

A 55-year-old man is admitted to ICU following emergency laparotomy for perforated diverticulitis with faecal peritonitis. He is Day 4 post-operatively, mechanically ventilated, and has developed septic shock requiring noradrenaline.

The surgical team requests consent for a "relook" laparotomy as they are concerned about anastomotic leak. The patient is CAM-ICU positive and RASS 0 (alert but inattentive and with disorganized thinking). His partner is at the bedside.

Question 1.1 (8 marks)

Describe your approach to assessing this patient's decision-making capacity for the proposed surgery.

Question 1.2 (6 marks)

The patient lacks capacity. Outline the legal framework for obtaining substitute consent in your state, identifying the appropriate decision-maker.

Question 1.3 (6 marks)

The partner says she "cannot make this decision" and wants you to "just do what you think is best." How do you respond?

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Model Answer SAQ 1

Question 1.1 (8 marks total)

Pre-Assessment Optimization (2 marks):

• Assess for and address reversible causes: Review sedation (hold or reduce if possible), check glucose, electrolytes, oxygen saturation (1 mark)
• Ensure communication aids available; optimal environment (quiet, private); partner can assist (1 mark)

Structured Capacity Assessment (UARC) (4 marks):

• Understanding: Explain diagnosis (possible leak), proposed surgery, risks (including death), benefits, alternatives. Ask patient to explain back. (1 mark)
• Appreciation: "Do you understand this means you might die if we don't operate?" Assess insight into personal situation. (1 mark)
• Reasoning: "How are you weighing up the risks and benefits?" Look for logical connection between values and choice. (1 mark)
• Communication: Is decision clear and consistent? Can patient articulate choice? (1 mark)

Interpretation of Findings (2 marks):

• CAM-ICU positive indicates delirium - strongly suggests impaired capacity (1 mark)
• However, proceed with formal assessment. Document findings in each domain. Patient may have lucid moments. (1 mark)

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Question 1.2 (6 marks total)

Legal Framework (3 marks):

• Patient lacks capacity; need substitute decision-maker (1 mark)
• In NSW: Guardianship Act 1987 defines "Person Responsible" (1 mark)
• In Victoria: Medical Treatment Planning and Decisions Act 2016 defines "Medical Treatment Decision Maker" (1 mark)

SDM Hierarchy (example for NSW) (2 marks):

1. Appointed guardian/enduring guardian (1 mark)
2. If none, spouse/de facto partner (partner in this case) has authority (1 mark)

Documentation (1 mark):

• Document identity of SDM, relationship, and basis of authority (1 mark)

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Question 1.3 (6 marks total)

Acknowledge Distress (1 mark):

• Validate emotional difficulty: "I understand this is an incredibly difficult situation."

Explain Role (2 marks):

• SDM is not making decision "for herself" but representing patient's wishes (1 mark)
• "We're asking what [patient] would want, based on his values and any discussions you've had" (1 mark)

Elicit Substituted Judgment (2 marks):

• Ask about patient's values: "What matters most to him?" (1 mark)
• Has patient ever expressed views on similar situations? "What did he say when his father was in hospital?" (1 mark)

Provide Recommendation if Needed (1 mark):

• If substituted judgment impossible, offer clinical recommendation framed as "best interests"
• "Based on what you've told me about [patient], and that he wanted to survive to see his grandchildren, we recommend proceeding with surgery" (1 mark)

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Common Mistakes:

• Not formally assessing all four capacity domains
• Confusing state-based SDM terminology
• Allowing SDM to defer entirely without attempting substituted judgment

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SAQ 2: Jehovah's Witness Blood Refusal

Time Allocation: 10 minutes Total Marks: 20

Stem:

A 38-year-old woman who is a Jehovah's Witness is admitted to ICU following emergency Caesarean section for placental abruption. She is conscious, alert, and haemodynamically unstable with an estimated blood loss of 3 liters. Her hemoglobin is 48 g/L.

She is refusing blood transfusion. She carries a signed "Advance Medical Directive/Release" card and has an adult Enduring Power of Attorney for medical treatment who confirms her wishes. Her husband, also a Jehovah's Witness, supports her decision.

Question 2.1 (8 marks)

Outline your approach to confirming the validity of this patient's refusal of blood transfusion.

Question 2.2 (6 marks)

What blood-free alternatives are available for management of hemorrhagic shock?

Question 2.3 (6 marks)

The patient's parents (not Jehovah's Witnesses) arrive and demand that you transfuse her. How do you manage this conflict?

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Model Answer SAQ 2

Question 2.1 (8 marks total)

Capacity Assessment (3 marks):

• Patient is alert - presumes capacity unless proven otherwise (1 mark)
• Apply UARC assessment: Does she understand she may die without blood? (1 mark)
• Ensure decision is not impaired by shock (hypotension, hypoxia may impair cognition) - assess systematically (1 mark)

Voluntariness (2 marks):

• Ensure decision is free from coercion (family, community pressure) (1 mark)
• Interview patient privately if possible; ask directly if this is her personal choice (1 mark)

Verification of Specificity (2 marks):

• Review "card" (Advance Medical Directive) - what specifically is refused? (1 mark)
• Some Jehovah's Witnesses accept fractionated products (albumin, clotting factors, EPO) - clarify (1 mark)

Documentation (1 mark):

• Document capacity assessment, discussion, specific products refused/accepted, witnesses to discussion (1 mark)

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Question 2.2 (6 marks total)

Volume Resuscitation (1 mark):

• Crystalloid (normal saline, Hartmann's solution)
• Synthetic colloids (if accepted by patient)

Pharmacological Alternatives (3 marks):

• Tranexamic acid (TXA) 1g IV immediately, then 1g over 8 hours (1 mark)
• Erythropoietin (EPO) - limited acute effect but supports recovery (1 mark)
• IV iron (ferric carboxymaltose) - supports erythropoiesis (1 mark)

Surgical/Procedural Interventions (2 marks):

• Aggressive surgical hemostasis - return to theatre if ongoing bleeding (1 mark)
• Cell salvage with leucocyte filter may be acceptable to some patients (1 mark)
• Interventional radiology: uterine artery embolization

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Question 2.3 (6 marks total)

Clarify Legal Authority (2 marks):

• The patient is an adult with capacity - her decision is legally binding (1 mark)
• Parents have no legal authority over an adult child's medical decisions (1 mark)

Communication (2 marks):

• Acknowledge parents' distress; explain legal position compassionately (1 mark)
• "I understand how difficult this is, but your daughter has the right to make her own medical decisions" (1 mark)

Practical Management (2 marks):

• Maintain confidentiality - do not discuss medical details without patient's consent (1 mark)
• Offer to have parents speak with patient (if she agrees); chaplaincy support; ethics consultation if conflict escalates (1 mark)

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Common Mistakes:

• Assuming refusal is invalid because patient may die
• Not assessing capacity properly in hemodynamically unstable patient
• Not knowing blood-free alternatives

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Hot Case Scenarios

Hot Case 1: Delirious Patient with Treatment Refusal

Setting: ICU Bed 7 Duration: 20 minutes (10 min assessment + 10 min discussion) Equipment: Ventilator, monitors, IV pumps, charts available

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Actor/Simulator Briefing (Not given to candidate):

Patient Details:

• Age: 62 years
• Gender: Male
• Admission diagnosis: Severe community-acquired pneumonia, type 1 respiratory failure
• Day of ICU stay: Day 5

History:

• Intubated Day 1 for respiratory failure
• Weaning sedation past 48 hours
• Extubated this morning to HFNC
• Now pulling at oxygen mask, trying to leave bed
• CAM-ICU positive; RASS +1 (restless)

Examination Findings:

• General: Agitated, intermittently cooperative
• Airway: Patent, speaking in sentences (but confused content)
• Breathing: RR 28, SpO2 92% on 50L/60% HFNC
• Circulation: HR 110, BP 145/85, warm peripheries
• Disability: GCS 14 (E4 V4 M6), pupils equal, no focal neurology
• Exposure: NGT in situ, IDC, peripheral cannulae

Charts/Data Available:

• CAM-ICU: Positive (inattention, disorganized thinking)
• RASS: +1
• ABG (today): pH 7.43, PaCO2 38, PaO2 72, HCO3 25, Lactate 1.2
• CXR: Improving consolidation

Current Management:

• HFNC 50L/60%
• Piperacillin-tazobactam Day 5
• Paracetamol PRN
• Haloperidol 0.5mg PRN (given once 4 hours ago)

Current Issue: Patient is repeatedly stating "I want to go home, take this off me" referring to HFNC.

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Candidate Task:

"You are the ICU registrar. This patient was admitted 5 days ago with severe pneumonia. He was extubated this morning and is now on high-flow nasal oxygen. He is agitated and says he wants to leave. Please assess the patient and discuss with the consultant."

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Expected Performance:

Assessment Phase (10 minutes) - 15 marks

History (3 minutes) - 3 marks:

• Ask nurse about events since extubation
• Check CAM-ICU result (positive)
• Review recent medications, any new issues

Examination (7 minutes) - 10 marks:

• Airway (1 mark): Patent, speaking
• Breathing (2 marks): Work of breathing, SpO2, auscultation
• Circulation (2 marks): HR, BP, perfusion
• Disability (3 marks): GCS, assess capacity (UARC approach), CAM-ICU result
• Exposure (1 mark): Lines, drains, evidence of self-harm (pulling lines)
• Charts (1 mark): Review CAM-ICU, trend, medications

One-Minute Summary (1 minute) - 2 marks: "This is a 62-year-old man, Day 5 of ICU admission for severe CAP. Extubated today to HFNC. He is now delirious (CAM-ICU positive) and agitated, expressing a wish to leave. He lacks decision-making capacity due to delirium. Main issues are ongoing oxygen requirement and managing agitation while protecting him from self-harm."

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Discussion Phase (10 minutes) - 15 marks

Opening Question: "Does this patient have capacity to refuse treatment and leave?"

Expected Answer (3 marks):

• No - CAM-ICU positive indicates delirium (1 mark)
• Formal capacity assessment shows impaired understanding and reasoning (1 mark)
• He does not have capacity to refuse life-sustaining oxygen therapy (1 mark)

Follow-up Question 1: "What is the legal basis for continuing treatment he is refusing?" (3 marks)

Expected Answer:

• Common law doctrine of necessity (1 mark)
• Treatment is necessary to prevent serious harm; he lacks capacity; no SDM immediately available (1 mark)
• This is not assault if acting in best interests when patient lacks capacity (1 mark)

Follow-up Question 2: "How would you manage his agitation?" (4 marks)

Expected Answer:

• Non-pharmacological first: Quiet environment, family presence, orientation, music, minimize stimuli (1 mark)
• Treat underlying causes: Pain, urinary retention, constipation, hypoxia (1 mark)
• Avoid benzodiazepines (worsen delirium in most cases) (1 mark)
• Consider haloperidol (though limited evidence for reducing delirium duration) or dexmedetomidine if needed for safety (1 mark)

Follow-up Question 3: "His wife arrives. She says 'If he wants to go home, let him go.' How do you respond?" (3 marks)

Expected Answer:

• Acknowledge her distress; explain he has delirium and is not his usual self (1 mark)
• Explain legal and ethical obligation to treat when patient lacks capacity (1 mark)
• She cannot consent to discharge if it would cause him serious harm; explain he may regain capacity as delirium resolves (1 mark)

Follow-up Question 4: "Are there any circumstances where you would allow him to leave?" (2 marks)

Expected Answer:

• If delirium resolves and he regains capacity - reassess with formal UARC (1 mark)
• If a valid Advance Care Directive refusing ICU treatment existed AND current situation was anticipated (1 mark)

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Marking Criteria (Total 30 marks):

Pass/Fail:

• Pass: ≥20/30, no domain scored 0
• Fail: <20/30 or critical safety error (e.g., allowing delirious patient to self-discharge)

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Hot Case 2: Family Conflict over Advance Care Directive

Setting: ICU Bed 12 Duration: 20 minutes

Scenario Brief: A 78-year-old woman with advanced dementia was admitted following aspiration pneumonia. She has a valid Advance Care Directive stating "no mechanical ventilation, no ICU admission." She is now in respiratory failure on NIV. Her two adult children disagree: son wants to follow the ACD; daughter wants "everything done."

Key Assessment Points:

• Verification of ACD validity
• Application to current clinical situation
• Identification of legal SDM (if one appointed)
• Conflict resolution strategies
• Ethics consultation pathway

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Viva Questions

Viva Question 1: Rogers v Whitaker and Material Risk

Stem: "You are about to perform a bedside tracheostomy on a 52-year-old man who has been ventilated for 14 days following severe TBI. He has regained capacity today. His wife is with him."

Duration: 12 minutes (2 min reading + 10 min discussion)

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Opening Question:

"What risks would you discuss with this patient, and what is the legal standard for disclosure in Australia?"

Expected Answer (2-3 minutes):

Legal Standard - Rogers v Whitaker (2 marks):

• A risk is "material" if a reasonable person in the patient's position would attach significance to it
• OR if the doctor knows or should know THIS specific patient would attach significance to it
• This is a patient-centered standard, not a doctor-centered standard

Specific Risks to Discuss for Tracheostomy (3 marks):

• Common: Bleeding (2-5%), infection, tube displacement
• Serious: Major vessel injury (<1%), tracheal stenosis (2-10%), death (<0.5%)
• Rare but significant for this patient: Permanent tracheostomy if unable to wean, voice changes, cosmetic scarring

Specific Patient Considerations (1 mark):

• Ask what matters most to him (e.g., if he's a singer, voice changes are material)
• Ask if he has specific concerns

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Follow-up Question 1 (2-3 minutes):

"The patient says 'Just do whatever you think is best, Doc. I trust you.' Is this valid consent?"

Expected Answer:

• General delegation is NOT valid consent (1 mark)
• Patient must understand what he is agreeing to (1 mark)
• "You need to make an informed decision; I can tell you what I recommend, but it's your choice" (1 mark)
• Must still explain procedure and material risks (1 mark)

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Follow-up Question 2 (2-3 minutes):

"He now says he wants the procedure but doesn't want to hear about the risks. How do you proceed?"

Expected Answer:

• Patient has right to waive detailed risk discussion ("waiver of informed consent") (1 mark)
• However, must at least understand he is waiving his right to this information (1 mark)
• Document: "Patient explicitly declined detailed risk discussion. Explained he has the right to this information but prefers not to hear it. Confirmed he understands there are risks including rare but serious ones." (1 mark)
• Recommended to have witness present (1 mark)

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Follow-up Question 3 (2-3 minutes):

"A complication occurs during the procedure. What factors determine if you are liable for negligence?"

Expected Answer:

Four Elements of Negligence (4 marks):

1. Duty of care: Exists (doctor-patient relationship) (1 mark)
2. Breach of duty: Did you fail to disclose a material risk OR perform procedure negligently? (1 mark)
3. Causation: Would the patient have refused if properly informed? Would complication have been avoided with reasonable care? (1 mark)
4. Damage: Did the patient suffer harm? (1 mark)

Application:

• If risk was disclosed and patient consented, no breach
• If risk was not disclosed but reasonable person would have consented anyway, causation may not be established
• Procedure done competently = no breach even if complication occurs

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Viva Question 2: Substitute Decision-Making and Conflict

Stem: "A 45-year-old man is in ICU following cardiac arrest with return of spontaneous circulation after 25 minutes. CT brain shows diffuse hypoxic injury. He is unconscious, not following commands, on mechanical ventilation Day 7."

Duration: 12 minutes

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Opening Question:

"The team believes ongoing active treatment is not in his best interests. His wife wants everything done but his brother says 'He told me he'd never want to be a vegetable.' How do you identify the appropriate substitute decision-maker?"

Expected Answer:

Check for Appointments First (1 mark):

• Any court-appointed guardian?
• Any Enduring Power of Attorney for medical treatment?

If No Appointment - Apply Hierarchy (2 marks):

• Wife (spouse/de facto partner) is highest in hierarchy after appointed SDM
• Brother's opinion is relevant but wife has legal authority

Substituted Judgment vs Best Interests (2 marks):

• Brother's testimony is evidence of patient's prior expressed wishes
• Should be used by wife in making substituted judgment
• But wife remains the legal decision-maker

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Follow-up Question 1:

"The wife refuses to accept poor prognosis and demands aggressive treatment. How do you manage this conflict?"

Expected Answer:

Communication (2 marks):

• Family meeting: Clarify understanding, provide clear prognostic information
• Explore her understanding of what "aggressive treatment" means to her husband
• Acknowledge grief and difficulty of situation

Attempt Consensus (2 marks):

• Second opinion from another intensivist
• Time-limited trial with clear endpoints if clinical uncertainty
• Ethics consultation to facilitate discussion

If Conflict Persists (2 marks):

• Continue treatment while seeking resolution
• Consider hospital-based ethics committee
• Rarely: application to Guardianship Tribunal (in extreme cases)

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Follow-up Question 2:

"What is the difference between 'substituted judgment' and 'best interests' and which should the wife apply?"

Expected Answer:

Substituted Judgment (2 marks):

• What the patient would have decided for themselves
• Based on known values, prior statements, previous decisions
• Respects autonomy by extending it into incapacity

Best Interests (1 mark):

• What objectively promotes patient's welfare
• Used when patient's wishes are unknown

Application (2 marks):

• Wife should apply substituted judgment using brother's testimony as evidence
• If she believes husband would want to continue, she can consent
• If she believes he would want to stop, she can consent to withdrawal
• She should not impose her own preferences

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Viva Question 3: Emergency Treatment and Advance Care Directive

Stem: "A 68-year-old woman is brought to ED by ambulance in cardiac arrest. ROSC is achieved after 15 minutes. She is intubated and transferred to ICU. Her husband arrives with an Advance Care Directive stating 'I do not wish to receive CPR or mechanical ventilation if I have a terminal illness.'"

Duration: 12 minutes

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Opening Question:

"You have already intubated this patient. What are the legal and ethical implications of this Advance Care Directive?"

Expected Answer:

Emergency Treatment Was Legally Justified (2 marks):

• At time of arrest, no ACD was known
• Treatment under doctrine of necessity was appropriate
• Clinicians cannot be expected to check for ACD during cardiac arrest

Now ACD Must Be Considered (2 marks):

• ACD specifies "terminal illness"
• was she terminally ill before arrest?
• Need to establish if cardiac arrest was from reversible cause or terminal condition
• If terminal illness AND ACD specific AND valid → should be followed

Validity Check (2 marks):

• Was ACD made with capacity?
• Was it witnessed appropriately?
• Has it been revoked?

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Follow-up Question 1:

"Her husband says she had end-stage heart failure and was told she had less than 6 months to live. He says 'She wouldn't want any of this.' What do you do?"

Expected Answer:

Validate Information (1 mark):

• Contact her cardiologist/GP to confirm terminal diagnosis

If Terminal Illness Confirmed (2 marks):

• ACD appears directly applicable
• Ethically and legally obliged to follow valid ACD
• Should plan for withdrawal of mechanical ventilation

If Uncertainty About Prognosis (2 marks):

• May need ethics consultation
• Time-limited trial while gathering information
• Husband (as SDM) should apply substituted judgment based on ACD

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Follow-up Question 2:

"The patient's son arrives and says 'That document is years old. She told me last week she was feeling better and wanted to fight.' How do you resolve this conflict?"

Expected Answer:

Gather Evidence (2 marks):

• When was ACD made? When was last discussion about wishes?
• Has patient revoked ACD formally or informally?
• Son's statement is evidence but needs corroboration

Conflict Resolution (2 marks):

• Family meeting with son and husband together
• Ethics consultation
• May need to continue treatment while conflict resolved

Legal Position (2 marks):

• ACD can be revoked orally while competent
• If genuine evidence of revocation, ACD may not be binding
• If evidence unclear, husband (SDM) must use best judgment

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Viva Question 4: Indigenous Health and Consent

Stem: "A 55-year-old Aboriginal man from a remote community is flown to your ICU with severe sepsis from necrotizing fasciitis. He requires urgent surgical debridement. He is confused and the surgeon needs consent urgently."

Duration: 12 minutes

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Opening Question:

"How do you approach consent in this situation?"

Expected Answer:

Capacity Assessment (2 marks):

• Confusion suggests impaired capacity; apply UARC assessment
• If lacks capacity, proceed with SDM consent or emergency doctrine

Identify Substitute Decision-Maker (2 marks):

• Aboriginal families often have different decision-making structures
• May be elder or extended family member rather than Western hierarchy
• Aboriginal Health Worker or Aboriginal Liaison Officer can help identify appropriate person

Emergency Doctrine (2 marks):

• If life-threatening and no SDM immediately available
• Can proceed under doctrine of necessity
• Document urgency and attempts to contact family

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Follow-up Question 1:

"An Aboriginal elder from his community arrives and says no surgery should happen without the family council meeting. The surgical team says the patient will die without surgery tonight."

Expected Answer:

Acknowledge Cultural Importance (2 marks):

• Elder's role is important in Aboriginal decision-making
• Whenever possible, should allow time for family involvement

Balance with Clinical Urgency (2 marks):

• If truly life-threatening and cannot wait, emergency doctrine applies
• Explain urgency compassionately to elder
• Offer to involve family in ongoing decisions after surgery

Practical Steps (2 marks):

• Involve Aboriginal Health Worker or Aboriginal Liaison Officer
• Explain situation clearly, using interpreter if needed
• Document cultural considerations and clinical urgency

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Follow-up Question 2:

"What are the specific cultural considerations for Aboriginal and Torres Strait Islander patients regarding consent and decision-making?"

Expected Answer:

Decision-Making Structures (2 marks):

• Extended family ("mob") involvement in major decisions
• Elders may have cultural authority
• Gender-specific considerations (some topics only discussed with same gender)

Communication (2 marks):

• Aboriginal Health Workers/Liaison Officers are essential
• Avoid yes/no questions (may get affirmative answer from politeness)
• Allow time for family consultation
• Consider use of Aboriginal interpreters (even if English-speaking)

Cultural Practices (2 marks):

• Sorry Business (bereavement) may affect family availability
• Spiritual significance of body, blood, tissue samples
• Passing "on Country" may be important for end-of-life

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Interactive Elements

[INTERACTIVE: Capacity Assessment Tool]

Instructions: Work through this structured capacity assessment for a simulated patient.

Scenario: 72-year-old woman with COPD, admitted for exacerbation, now improved. Team recommends discharge but patient wants to stay because she "feels safer in hospital."

Step 1: Pre-Assessment

• RASS: 0 (alert)
• CAM-ICU: Negative
• Communication needs: English-speaking, hearing aids in place

Step 2: Assessment by Domain

UNDERSTANDING: "Can you tell me what's been happening with your health?"

• Patient Response: "I had trouble breathing but I'm better now with the nebulizers"
• Assessment: [Intact / Impaired]

APPRECIATION: "What do you think would happen if you went home?"

• Patient Response: "I might get sick again and no one will be there to help me"
• Assessment: [Intact / Impaired]

REASONING: "What are the advantages of staying vs going home?"

• Patient Response: "Here I have nurses. At home I'm alone. But I suppose I could call an ambulance if I got sick..."
• Assessment: [Intact / Impaired]

COMMUNICATION: "What is your decision about discharge?"

• Patient Response: "I'd like to go home but I'm scared. If you think I'm well enough, I'll try."
• Assessment: [Intact / Impaired]

Step 3: Conclusion

• This patient [HAS / DOES NOT HAVE] capacity
• Reasoning: All domains intact; fear is not incapacity; she can understand, appreciate, reason, and communicate

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[INTERACTIVE: Documentation Template]

Consent Documentation Checklist:

For each high-risk procedure, document:

• Information provided (procedure, benefits, risks, alternatives)
• Specific material risks discussed
• Patient questions and answers
• Capacity assessment (if any doubt)
• Voluntary decision (no coercion)
• Consent given/refused
• Signature and date

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