Medical Ethics, Capacity and Consent — Viva

Long Case Viva Defence

Candidate's opening statement (model answer)

"Mrs Margaret Hayes is a 78-year-old woman with advanced Alzheimer disease, bed-bound and requiring full nursing care in a residential aged-care facility, who is admitted with an aspiration pneumonia and hypoxia, and who presents the team with a complex ethical dilemma: she lacks capacity for the decision about the intensity of treatment, she has no advance care directive, and her enduring guardian son is demanding intensive care and intubation that the treating team considers futile and harmful in her advanced dementia. [1]

Her main problems are:

1. Aspiration pneumonia with hypoxia, the acute presentation.
2. Advanced, irreversible Alzheimer disease with a critically impaired ability to participate in decisions.
3. An ethical dilemma about the appropriate intensity of treatment, with a conflict between the family's demand for intensive care and the team's judgement of futility.
4. The absence of an advance care directive, which forces a best-interests decision.
5. The son's grief, which is driving the demand for everything and which must be addressed in the goals-of-care conversation. [1]

My approach is to confirm her incapacity with a formal two-stage capacity assessment, to make the decision in her best interests using the substituted judgement standard in consultation with her enduring guardian son, to hold a structured goals-of-care conversation that explores what she would have wanted and explains the likely poor outcome of intensive care in advanced dementia, to propose a ceiling of ward-based active treatment with no ICU escalation and no cardiopulmonary resuscitation paired with symptom control and family support, and to escalate to a second opinion, the ethics committee, and if necessary the guardianship tribunal if the conflict cannot be resolved. The overarching principle is that the decision is hers, made through substituted judgement, and the plan is active treatment proportionate to her goals — we will not resuscitate but we will not abandon." [1]

Examiner probing questions and model answers

Q1: "Walk me through how you would formally assess this patient's capacity, given that she cannot communicate meaningfully." [1]

"I apply the two-stage test of capacity established by the Mental Capacity Act 2005 and described by Appelbaum [1][2]. Stage 1, the diagnostic stage: she has a clear impairment of mind or brain — advanced Alzheimer disease, evidenced by her bed-bound status, her inability to communicate meaningfully, and her dependence on full nursing care. Stage 2, the functional stage: I attempt to engage her in the decision about the intensity of treatment, explaining in simple language that she has a chest infection and that we are considering how hard to fight it. Given her advanced dementia, she cannot understand the information, retain it, use or weigh it, or communicate a decision — she fails all four functional abilities. The conclusion is that she lacks capacity for this decision at this time.

Before finalising the assessment, I exclude reversible contributors to impaired consciousness — I correct her hypoxia with supplemental oxygen, I treat the sepsis, I check her glucose, her sodium, her calcium, and her renal function, and I review her medication chart for opioids, benzodiazepines or anticholinergics that might be contributing. Her advanced dementia is an irreversible impairment, so even if the acute delirium of the sepsis resolves, her underlying incapacity for a complex, high-stakes decision will persist. I document the assessment formally: the specific decision, the information given, her responses, the four abilities, the conclusion, and the reasoning. Because capacity is decision-specific, I note that she may retain capacity for simpler decisions (for example, whether to take oral antibiotics) even though she lacks it for the decision about intensive care." [1]

Q2: "Her son is the enduring guardian. He wants everything done. How do you reconcile his role as substitute decision-maker with the team's view that intensive care is futile?" [1]

"The son's role as enduring guardian is to represent his mother's prior values and wishes, not to impose his own. I would start by asking him what his mother would have wanted — did she ever discuss intensive care or end-of-life treatment? Did she express views about being kept alive in a condition she would not have wanted? What mattered to her? The substituted judgement standard asks what the patient, given her values, would have chosen, not what the family would choose for themselves. The son's answers inform this judgement. [1]

In parallel, I provide honest information about the prognosis. The literature on intensive care in advanced dementia is consistent: the chance of survival to discharge after mechanical ventilation in a patient with end-stage Alzheimer disease is very low, and those who do survive rarely return to their baseline and often die within months in a worse functional state. The SUPPORT trial demonstrated the failure of aggressive end-of-life care in advanced disease to improve outcomes, and the harm of intensive care in this population (pain, discomfort, loss of dignity, the prolongation of the dying process) is substantial [4]. So I frame the conversation not as the team refusing what the son wants, but as a shared best-interests decision in which the team is recommending, on the basis of the likely outcome and the harm, a plan that is proportionate to her goals.

The son's grief is central. Wanting everything is often an expression of love and a fear of letting go. I would acknowledge this directly, and I would frame the comfort-focused plan as an act of care in keeping with his mother's values, not as giving up. If he remains distressed, I would offer time, a follow-up meeting, and the involvement of the palliative care team and the social worker. The decision is not forced through against his wishes — it is worked through together, and if we cannot agree, we escalate to a second opinion, the ethics committee, and the guardianship tribunal." [1]

Q3: "You propose a ceiling of ward-based care with no ICU and no resuscitation. What exactly will you do and what will you not do?" [1]

"The ceiling documents what will and will not be done in the event of deterioration. What I will do: active treatment of the pneumonia with supplemental oxygen titrated to a target saturation, bronchodilators if there is a reversible component, and a trial of antibiotics if consistent with the goals (recognising that in the dying patient antibiotics may be withheld on best-interests grounds); symptom control with opiate analgesia and anxiolysis for breathlessness and distress (oral morphine 2.5 mg as needed, or subcutaneous morphine 2.5 mg if she cannot swallow, with a subcutaneous syringe driver for anticipatory symptom control if she is dying); careful attention to mouth care, positioning, pressure-area prevention, and continence; and family support. What I will not do: I will not escalate to intensive care, I will not intubate and mechanically ventilate, and I will not attempt cardiopulmonary resuscitation in the event of cardiac arrest. The artificial hydration question is addressed specifically with the son — in the dying patient, reducing or withholding artificial hydration may be appropriate as it may contribute to pulmonary and peripheral oedema without benefit, but the decision is made jointly. [1]

The key communication principle is that the ceiling is not a decision to withdraw care. Mrs Hayes continues to receive active treatment of the precipitating illness and ongoing symptom-focused and comfort-focused care. The phrase is do not resuscitate but do not abandon. The plan is documented as a medical order, communicated to the nursing and medical team, and shared with the residential aged-care facility for continuity. I would review her daily and adjust the plan as her condition changes." [1]

Q4: "How would you conduct the goals-of-care conversation with the son? What communication framework would you use?" [1]

"I would use a structured conversation that combines the goals-of-care framework with the SPIKES protocol for delivering difficult news [6]. Setting: a quiet, private room, with the senior clinician and a nurse, enough time, and any other family the son wishes present. Perception: I begin by asking what he understands about his mother's condition and her illness trajectory, and whether she ever discussed her preferences. Invitation: I ask how much detail he wants about the prognosis and the options. Knowledge: I give honest information in plain language — that her Alzheimer disease is advanced and irreversible, that the aspiration pneumonia is a common and often terminal event in this stage, and that intensive care in a patient with her degree of dementia has a very low chance of a meaningful recovery and a high chance of causing suffering. I avoid false hope but I am not brutally blunt — I use a warning shot and small chunks. Emotions: I acknowledge the son's distress, name it, validate it, and allow silence; this is the most important and most often skipped step. Strategy and Summary: I propose a plan that aligns with what he tells me about his mother's values — active treatment within a ceiling of ward-based care, focused on dignity and comfort — and I confirm his understanding, document the agreed plan, and arrange a follow-up.

I would specifically address the guilt that families feel when agreeing to a comfort-focused plan — I would say that choosing comfort is not giving up, it is an act of love in keeping with what his mother would have wanted. And I would offer the palliative care team's involvement for ongoing support." [1]

Q5: "Suppose the son remains adamant that she goes to ICU, and the team is equally adamant that it is futile. How do you resolve the conflict?" [1]

"The escalation pathway is staged. First, a second medical opinion from a senior clinician — the attending physician or the director of medicine — which often resolves the disagreement by providing an independent assessment. Second, involvement of the hospital ethics committee or clinical ethics service, which can facilitate a structured best-interests discussion with the family and the team. Third, referral to the guardianship tribunal, which can make the best-interests decision independently, applying the substituted judgement standard. Throughout this process, the patient continues to receive active treatment within the current ceiling and full symptom control. [1]

I would not unilaterally impose intensive care against the team's clinical judgement, because that would be treating without therapeutic intent and would expose the patient to harm. I would equally not unilaterally withhold all active treatment, because the ceiling is not a withdrawal of care. The resolution is through the best-interests process and, where necessary, the tribunal. The documentation throughout records the capacity assessment, the best-interests reasoning, the goals-of-care conversations, the second opinion, and any tribunal ruling. In my experience, most of these conflicts resolve with time, honest information, and a structured conversation — the tribunal is a last resort, but it is available and should be used when the conflict is genuinely irreconcilable." [1]

Short Case Discussion

A structured bedside capacity assessment for a patient refusing a below-knee amputation

Examiner instruction: "You are asked to assess the capacity of a 70-year-old man with critical limb ischaemia who is refusing a below-knee amputation that his vascular surgeon considers necessary to save his life. He has a history of peripheral vascular disease and type 2 diabetes. Describe how you would conduct and document a structured capacity assessment for this decision." [1]

Candidate's model answer: [1]

"This is a high-stakes, complex decision — the amputation is irreversible and life-saving, so the threshold for capacity is correspondingly high. I would conduct a structured assessment using the two-stage test and the four functional abilities [1][3].

Step 1 — Set the scene and establish the decision: A quiet, private space, with enough time, an interpreter if English is not his first language, and a family member or support person if he wishes. I name the specific decision: we are discussing whether to have the operation to remove the leg below the knee. [1]

Step 2 — Explain the information in plain language: I explain, in small chunks and free of jargon: the condition (the artery to his leg is blocked and the tissue is dying, and without surgery the infection and the dying tissue will spread and he will die); the proposed treatment (an operation under general anaesthetic to remove the leg below the knee, followed by weeks of healing and rehabilitation, and a prosthesis in the longer term); the principal risks (the operative mortality, which is real in a patient with vascular disease and diabetes; pain; a longer recovery; and the possibility of needing an above-knee amputation if the stump does not heal); the benefits (removal of the infected and dying tissue, relief of pain, and a chance of return to function with a prosthesis); the reasonable alternatives (continued conservative management with wound care and analgesia, with an expected death from sepsis); and the consequences of declining (death from the advancing infection). I check understanding at each step. [1]

Step 3 — Test understanding: I ask him to paraphrase: 'Tell me in your own words what the operation involves and what will happen if you do not have it.' A paraphrase tests understanding; a yes-or-no answer does not. I listen for whether he grasps the central facts — that the leg is dying, that the operation removes it, and that without it he will die. [1]

Step 4 — Test retention: I observe whether he holds the information throughout the discussion, and I ask him to recall the key points after a short interval. If he has severe short-term memory impairment and cannot keep the facts in mind long enough to decide, he may fail retention. [1]

Step 5 — Test use or weighing: This is the most often missed ability. I ask him to explain his reasoning: 'How did you weigh up the risks and benefits in reaching your decision?' I listen for whether he has integrated the information or is reasoning from a delusion, a compulsion, a depressive nihilism (the belief that he deserves to die, or that there is no point), or an inability to conceive of the consequences. If his refusal is because he believes the surgeons are trying to punish him, or because a depressive illness tells him he is better off dead, he fails to use or weigh. If his refusal is a considered decision that he would rather die than lose the leg, made in the full understanding of the consequences, he has capacity — however much I disagree. [1]

Step 6 — Test communication: I ensure he can express a decision by whatever means. [1]

Step 7 — Document: I record the specific decision assessed, the information given, his responses for each of the four abilities, my clinical judgement with reasoning, and the conclusion. If he has capacity, his refusal is respected, I continue the doctor-patient relationship, and I plan for symptom control and the trajectory. If he lacks capacity, the decision is made in his best interests with the substitute decision-maker, considering any advance directive, using the least restrictive option."* [1]

Examiner follow-up: "He tells you he is refusing because he has read on the internet that the surgeons amputate legs to sell the body parts. How does this change your assessment?" [1]

"This changes the assessment materially. He is reasoning from a delusional belief — a fixed, false belief about the surgeons' intent that is not amenable to evidence. He may be able to repeat the factual information about the operation (understanding appears intact on a superficial test) and to recall it (retention appears intact), and he can communicate a clear choice. But his reasoning is driven by the delusion, which means the information has not been genuinely integrated into his decision. He fails the ability to use or weigh the information as part of the decision-making process [1][3].

This raises the diagnostic stage of the two-stage test: is there an impairment of mind or brain? The delusional belief may indicate a psychotic illness (a first presentation of a late-onset psychosis, a delirium with psychotic features, or a dementia with psychotic features), or it may reflect a severe depression with nihilistic and persecutory delusions. I would assess him psychiatrically, investigate for reversible causes (metabolic, infective, drug-related), and consider a psychiatric opinion. If a treatable condition is identified and treated (an antipsychotic for a psychosis, an antidepressant for a depression), his capacity may be restored and he should be reassessed when the delusion has resolved. If he remains delusional and lacks capacity, the decision is made in his best interests using the substituted judgement standard, consulting the substitute decision-maker — and the best-interests decision, given that the amputation is life-saving and his only prior expressed wish was to live, would likely be to proceed with the amputation." [1]