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Section X

E T H IC S A N D
VA LU E S I N
P SYC H IAT R IC
T R E AT M E N T

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Chapter 76

Inform ed C onse nt to
Treatme nt
Incapacity and Complexity Owing to
Mental Disorder

Werdie (C.W.) van Staden

Introduction

This chapter underscores the crucial place of good process in understanding and obtain-
ing informed consent as well as in the understanding and assessment of incapacity to
give informed consent owing to mental disorder. Good process is presented as a requi-
site to informed consent—a requisite that provides for the practical co-production of the
other necessary conditions of informed consent insofar as incapacity owing to mental
disorder does not prevent these from pertaining (see Chapters 4 and 73, this volume, on
co-production). Good process is also presented as the ethically better way to assess incapac-
ity to give informed consent.
This chapter considers informed consent specifically to psychiatric treatments including
the use of medication, changes to medication or its dosage, psychotherapy, hospitalization,
electroconvulsive treatment, etc. Adaptations may nonetheless provide for the issues related
specifically to other interventions including research (see Van Staden 2007; chapter 66, this
volume), assessment, and disclosure (Chapter 72 and 77, this volume; Van Staden and Krüger
2003). The requirement to obtain informed consent has been written into ethical codes and
the laws of many countries—and in South Africa even into its constitution.
This chapter assumes that informed consent by the patient or if not possible, a proxy, is
required for all health interventions, notwithstanding a few exceptions. Exceptions may be
when obtaining informed consent is not possible but an immediate emergency intervention
is crucial; when a court orders an intervention (e.g., a forensic assessment); or by virtue of a
law. Many countries have a mental health act by which interventions like hospitalization are
instructed even when the patient does not consent to it. Incapacity to give informed consent
is a requirement to involuntary treatment or hospitalization in South Africa (Mental Health

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1130    Consent to Psychiatric Treatment and Incapacity

Care Act 2002) but not the determining criterion to hospitalization in the UK (Mental
Health Act 2007). But even when an intervention is a legal instruction, it remains better
practice to obtain informed consent even though it is not legally mandatory (cf. the Code of
Practice to the Mental Health Act of England and Wales 1993).
The first part of the chapter clarifies the scope and necessary conditions of informed con-
sent. It cautions against too narrow an understanding thereof as well as confusing it with
decision-making. The second part addresses capacity and incapacity to give informed
consent, its necessary conditions, its clinical assessment, and some clinical examples. The
chapter concludes by an appeal to subject to good process the practical complexities and
challenges related to informed consent.

The Scope of Informed Consent

For the consideration of necessary conditions of informed consent, clarity on the scope of
informed consent is important conceptually and clinically. The conditions and the scope
should match. Too narrow an understanding of informed consent would be to take it as no
more than a “yes” or an “I agree” indication that the health care intervention may be exe-
cuted, rather than to value the process by which the “yes” or “I agree” has been derived. The
same mistake underpins the failure to distinguish between informed consent and a docu-
ment by which informed consent is affirmed in writing as may be suggested, for example,
by the abridged expression “written informed consent.” The informed consent document
is at best an affirmation of the process leading up to the document being signed as a record
of that process. That means that many instances of informed consent are not captured in
an informed consent document, for proposed interventions of lesser gravity do not always
require an affirmation of that process in a designated document.
The first word in “informed consent” points to the process nature of informed consent by
which information is assimilated. So too does the Latin etymology of “consent,” being a con-
struction of “con” meaning “together” and “sentire” meaning “to feel”—thus, to feel together
(Hoad 1996). That also suggests that informed consent is not a solitary process, but a conflu-
ence of activities—say, communication and convergence on a plan of action.
The informed consent process overlaps to some extent with the process of
decision-making, but should nonetheless be distinguished from it. Part of informed consent
is necessarily decision-making, but decision-making is not necessarily informed consent.
In other words, all instances of informed consent entail decision-making—that is appar-
ent enough. But not all instances of decision-making entail informed consent—the deci-
sion may be to decline, rather than consent to the considered intervention, for example. All
requirements for informed consent are neither required to make a decision (cf. below; Van
Staden and Krüger 2003).
The distinction between informed consent and decision-making is important clinically
and conceptually for another reason. That has to do with agency. In the health care context, it
is the patient (and his family or proxy) who should give the informed consent, but the agent
in making a clinical decision is not necessarily the same as the agent of giving informed con-
sent. Consider, for example, a paternalistic approach by which the physician constructs the
decision without involvement of the patient and then presents that as an option to which the

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Requirements for Informed Consent    1131

patient agrees (or not). The anti-paternalistic reaction, instead, has been to insist that both
the decision-making and the informed consent should be done by the patient. In that case,
the distinction between informed consent and decision-making is perhaps less important.
However, there has been a recent appreciation that decision-making should reside neither
solely with the patient nor solely with the physician. Decision-making should be shared (see
for example Chapters 4, 28, 39, 60, 72, 73, and 77 in this volume; Seyfried, Ryan, and Kim
2013; Perestelo-Perez et al. 2011). Then the distinction matters. The patient may be giving the
informed consent that is part of a decision-making process of which the agency is shared.
Thus, in practice it may be expressed as: “we have made or constructed the decision together
to which you (the patient) have given informed consent.”

Requirements for Informed Consent

For informed consent then, the requirements are usually considered in terms of the suffi-
ciency of information, the absence of undue influence on the patient, the patient’s actions
entailed in giving informed consent, and his capacity for these actions. The actions usually
considered are that of understanding, appreciating, communicating, choosing, accepting,
believing, weighing, and using (information). Before addressing these actions in relation to
capacity, the point is made first that the need for good process in informed consent pertains
for mental disorder in relation to sufficiency of information and undue influence also when a
patient is capable of giving informed consent.
Sufficiency, or adequate disclosure, of the information that should be provided is usually
considered with reference to “what a standard physician would ordinarily provide”—the
so-called Bolam test; or “what a standard patient would ordinarily expect” (Fulford et al.
2006, pp. 551–553; see also “reasonable person” standard, Katz 2002). Which of these stand-
ards pertain varies between legal jurisdictions. However, although these may work as legal
standards, I contend that clinicians should do better than aiming to meet any one of these
minimum standards. Clinicians would do better ethically through conjointly establishing
for each patient the standard of sufficient information in giving consent, accounting thereby
for the patient’s values in this regard. In the USA, the practice of tailoring sufficiency of
disclosure to individual patients’ characteristics, preferences, and values is called the “sub-
jective” standard (Katz 2002). That means that in addition to the shared values, the com-
mon legal standards, diversity of values pertaining in this regard should also be accounted
for. (See Chapters 28 and 77 of this volume on dealing ethically with a diversity of values.)
Accounting thus for both the common standards and the patient-specific values in a specific
context requires communication and conjoint reflection on the very issue.
The need for communication and conjoint reflection on the sufficiency of information
is underscored in cases of mental disorder for at least two reasons. First, psychiatry, owing
in part to the nature of psychiatric disorders, often operates within more values diversity
than other medical disciplines do (e.g., see Chapters 1, 2, 3, 4, 28, and 39 in this volume). If
that diversity is taken seriously, the patient’s specific values in the matter should not sim-
ply be made subservient to either of the two common (legal) standards mentioned above
(see Chapter 28, this volume, on diversity). Second, the sufficiency of information, whether
determined by a common standard or determined conjointly in a specific situation, is not

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1132    Consent to Psychiatric Treatment and Incapacity

immune to the effects and demands of mental disorder. For example, skepticism and doubt
invoked by a depressive episode or paranoid ideation may shift the sufficiency threshold
upwards, for these mental states may make the patient skeptical, doubtful, or paranoid about
the information. In some other instances, the shared decision between patient and clinician
may also be to restrict the information, for example when patient and clinician concur that
the patient’s anxiety will or is highly likely to increase when burdened with information that
would be experienced as too much or too overwhelming.
When mental disorder affects the sufficiency threshold for information, the patient should
not be presumed to be necessarily incapable of giving informed consent. Mental disorder
has to affect someone in a particular way and of sufficient degree before it would render
someone incapable of giving informed consent—see below. Rather, the process of informed
consent should provide for the effects of mental disorder alongside the many other potential
determinants of informational needs, for example one’s prior experiences with a particular
treatment; one’s personality; one’s preferences and values; etc. The process of informed con-
sent should thus determine the (extent of) information provided.
Circumstance of undue influence or duress would preclude an “I agree” from being
informed consent. The Nuremberg decision expresses this requirement in terms of an
absence of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or
coercion (Appelbaum, Lidz, and Klitzman 2009). By whose values the judgment “undue”
or “duress” is assigned is critically important in considering this prerequisite to informed
consent. “Undue” or “under duress” as judged by most people may not necessarily be so for
a specific person. For example, a patient’s personality may provide for some indifference to
threats.
Conversely, although a situation may not be described as “undue” or “under duress” by
most people, a particular person may perceive it to be so nonetheless. For example, a psy-
chiatrist in his discussion of ECT as a treatment option with a patient would usually involve
a nurse to participate in the decision-making and witness the consent process. Whereas
most people may find the involvement of a nurse helpful in this process, a particular patient
may feel ( by virtue of his personality. mental illness or another reason) as if the psychia-
trist is “ganging up” on him. As with the threshold of information sufficiency, the process of
informed consent should entail communication and conjoint reflection on the circumstance
by both the patient’s evaluation as well as the common evaluation thereof as to whether there
is undue influence or duress.
The patient’s evaluation of undue influence may be affected by mental disorder. For exam-
ple, a vulnerable mental state may make the patient oblivious to the undue influence by a
family member (Appelbaum, Lidz, and Klitzman 2009). A mental state of suspicion may
give cause to a perception of duress. Again, as with the threshold for information sufficiency,
that does not mean the patient is necessarily incapable of giving informed consent. Although
“undue influence” and “duress” are usually taken as exerted externally or by another person
(Appelbaum, Lidz, and Klitzman 2009), mental disorder may also be considered to be an
undue influence or to be exerting duress. How that may render one incapable will be consid-
ered below. But if nonetheless capable of giving informed consent, the process of informed
consent should provide for communication and conjoint reflection on the effects of mental
disorder (alongside other influences) on the perceived undueness or duress as it pertains in
that situation.

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Capacity to Give Informed Consent    1133

Capacity to Give Informed Consent

The categorical approach to incapacity has increasingly been replaced in recent years by a
functional approach (Van Staden 2007; Appelbaum, Lidz, and Meisel 1987). Through a cat-
egorical approach, the patient would be deemed incapable of giving informed consent by
virtue of belonging to a particular category such as suffering from dementia or a psychotic
episode (Appelbaum 2007). A functional approach recognizes that a patient’s capacity to
give informed consent (1) is not necessarily affected (to a sufficient degree) when belonging
to a diagnostic category; (2) may change (even within hours); and (3) varies for a particular
intervention. For these reasons, a patient’s capacity or incapacity should not be presumed as
being so, but should be assessed clinically at the time of giving consent in relation to a par-
ticular intervention.
By a functional approach, an assessment is done in terms of the patient’s actions that are
entailed in giving informed consent. These actions have been articulated in criteria based on
conceptual work (e.g., Van Staden and Krüger 2003), legislation (e.g., the Mental Capacity
Act 2005 of England and Wales), and assessment instruments. There are more than 29
assessment instruments available for this purpose of which the MacArthur Competence
Assessment Tools for Treatment and for Clinical Research (respectively, MacCAT-T and
MacCAT-CR) are probably the most comprehensive (Okai et al. 2007; Dunn et al. 2006;
Grisso and Appelbaum 1998; Appelbaum and Grisso 2001).
Most, if not all, the assessment instruments are conceptualized in terms of the abilities
that underpin informed consent (Dunn et al. 2006; Okai et al. 2007). They assess the general
ability of understanding, and the MacCAT-T also assesses the abilities of appreciation, rea-
soning, and expressing a choice (Grisso and Appelbaum 1998). Similarly, the abilities that the
Mental Capacity Act of England and Wales (Department of Health 2005) considers pivotal
are “understanding,” “retaining,” “using,” “weighing,” and “communicating.” These abilities
should be of sufficient quality. For example, the understanding of a proposed intervention
should be of sufficient extent, meaning accordingly that the instruments assess for the extent
of understanding.
To conceptualize the assessment of capacity to give informed consent in terms of these
abilities has had much face validity and may have served practical demands well enough in
most situations (Okai et al. 2007). However, this approach incurs a major problem of poten-
tial over-inclusion and a potential divergence between having ability for an action and the
action itself (Van Staden 2009). For example, when the assessment instruments mentioned
above yield a result that the patient does not understand sufficiently, that patient may be con-
sidered as incapable of giving informed consent. But that is not necessarily the case. When
someone does not understand a proposed intervention, that lack of understanding is not
necessarily caused by a mental disorder. The person may have good and legitimate reasons
for not understanding that have nothing to do with mental disorder, even when suffering
from a mental disorder. For example, a person may cautiously choose not to understand, or
reason about, or appreciate the details of the proposed intervention, for he may find them
too grisly, too upsetting, too threatening, or even too boring (as some patients in fact indi-
cated; Van Staden 2007; Koelch et al. 2009).

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1134    Consent to Psychiatric Treatment and Incapacity

To address this problem, weaker criteria have been proposed by which someone should
have mere capacity to understand rather than actual understanding, and similarly have
mere capacity for the other abilities underpinning informed consent (Devereux 2002,
p. 82). But that approach begs the question. It only shifts the assessment of capacity to
give informed consent to an assessment of the capacities for the abilities underpinning
informed consent. It does not address the causes or reasons for not understanding, nor
a causal link between the person’s mind as affected by mental disorder and the (lack of)
understanding.
However, the problem can be avoided altogether. That is, by (1) a conceptualization of
assessment (and necessary conditions) in terms of incapacity and actions rather than capac-
ity and abilities; and (2) accounting explicitly for a causal connection between the person’s
mind as affected by mental disorder and the actions entailed in informed consent.

Incapacity to Give Informed Consent Owing

to Mental Disorder

To do this, incapacity to give informed consent owing to mental disorder has to be conceptu-
alized and assessed by the following three components: someone’s mind as affected by men-
tal disorder; any one specific action entailed in informed consent; and the causal connection
between them (Van Staden 2009; Van Staden and Krüger 2003). Accordingly, one would be
justified in claiming and assessing someone as being incapable of giving informed consent
when a mental disorder in the mind of a person prevents that person from, for example,
understanding the proposed treatment.
Consider the first component by which a mental disorder is a necessary but not a suf-
ficient condition to being incapable of giving informed consent owing to mental disorder.
That means the mere presence of a (specific) mental disorder is not sufficient to assess some-
one as being incapable of giving informed consent—as a categorical approach would do. The
mental disorder must afflict the person’s mind in such a way that it prevents the particular
action, say, to understand. And it must be specifically the mental disorder, rather than some-
thing else, causing the action not to be exercised. This specification circumvents the prob-
lem of over-inclusion alluded to above. There may be concern here that the specification to
that of mental disorder is too restrictive. What about causes of incapacity to give informed
consent other than mental disorder? But then, other causes may be specified too. One may
think of a receptive aphasia, for example. See also the Scottish Incapacity Act providing for
“inability to communicate because of physical disability” (Stevenson, Ryan, and Anderson
2009, p. 120).
The second component concerns any one specific action entailed in informed consent.
Three such actions contained in the substantive assessment measures of capacity to give
informed consent, are to understand, to communicate, and to choose. These actions are also
crucial in the assessment of incapacity to give informed consent in that someone is incapa-
ble of giving informed consent when a mental disorder prevents someone from (1) under-
standing to what he consents; (2) communicating his consent; or choosing decisively for
or against the intervention (Van Staden and Krüger 2003). The term “retaining” used by

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Incapacity to Give Informed Consent Owing to Mental Disorder    1135

the Mental Capacity Act (2005) of England and Wales fits with “understanding,” but this
choice of word helpfully suggests that the understanding relevant here is an understanding
that is sustained for the time as would be appropriate to the intervention for which consent
is given.
Additionally, the fourth action relevant to incapacity to give informed consent is about
acceptance. That is, a person is incapable of giving informed consent when a mental disor-
der prevents someone from accepting the need for the intervention (Van Staden and Krüger
2003). Actions more or less related to acceptance, which are usually considered in assess-
ments of capacity rather than incapacity, are appreciation, using, weighing, believing, and
perhaps reasoning (Grisso and Appelbaum 1998; Mental Capacity Act 2005). However,
I argued elsewhere that the concept of acceptance is more apt in relation to incapacity (Van
Staden 2009). The reasons are as follows:

1. The term “appreciation” used by the MacCAT is not specific enough owing to its
substantial overlap with the term “understanding.” For example, one may exchange
the words “understanding” and “appreciation” without a change in the meaning in
many cases. It is noteworthy that the MacCAT uses the words “does not accept” in its
supportive description of “appreciation” (Grisso and Appelbaum 1998, p. 43), which
suggests that it is rather about acceptance than appreciation. In spite of its ambigu-
ity, the notion captured by “appreciation” rather than “understanding” was shown
to be particularly important in relation to incapacity owing to schizophrenia (Dunn
et al. 2006);
2. Considering the established connection between a lack of insight (as a clinical param-
eter) and incapacity (Owen et al. 2008), the term “acceptance” is closer conceptually
to the particular dimension of insight captured as an “awareness of the need for treat-
ment” in an assessment instrument of insight (Yen et al. 2008; Sanz et al. 1998).
3. Acceptance plays a determining role in research on insight and treatment adherence
and congruently features in the Compliance Rating Scale (Rabinovitch et al. 2009;
Klingberg et al. 2008).
4. “Acceptance” is more apt than “belief ” in relation to incapacity to given informed
consent (Van Staden and Krüger 2003). Consider the delusional patient stating “I
believe the information you have given to me about the proposed treatment, I believe
the treatment may benefit some and even me, but I shall not take it because it does not
befit me, being royalty from another dimension, to take the medicine from common
humans.” Here the delusion does not prevent him from believing the information
about the medication but accepting the need for the medication. In some instances,
“believing” may be specific enough and work too. However, assessing incapacity in
terms of acceptance, being more specific here than belief, makes an assessment in
terms of belief obsolete (Van Staden 2009).

The other actions, using (of information), weighing (of information), and reasoning, carry
another complication. Other than being rather vague, they seem to be contingently rather
than necessarily entailed in informed consent. Consider the following. Some people (with-
out a mental disorder) who consent, for example, to having sex or buying something, do so
rather impulsively, with little use of information (about risks), even less weighing of it, and

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1136    Consent to Psychiatric Treatment and Incapacity

do so even irrationally if they reason at all. Some people, perhaps more so if histrionically
inclined, consent to activities rather intuitively than by reasoning, doing even so by prefer-
ence. In some instance and even often so for some, reasoning (including justification for
the consent) follows only after the consent. That means, if these examples hold any truth,
the actions of using, weighing, and reasoning may support that the agent thereof was capable
of giving consent when these actions are carried out, but absence of any one of these actions
should not be taken as necessarily an indicator of incapacity.
As indicators of incapacity, however, there is case to be made for a contingent role. Thereby,
someone would be incapable of giving informed consent when a mental disorder prevents
the afflicted person from using (information), weighing (information), or reasoning. The
issue is, however, by whose values would using (information), weighing (information), or
reasoning be important in giving informed consent. When important by the patient’s val-
ues, these actions would be relevant in the process of assessing incapacity—as considered
below, good process should provide for this. When important by account of legal values, as
in the case of the Mental Capacity Act (2005), the practitioner is best advised to conform.
But I contend that these actions are not logically necessary conditions to incapacity to give
informed consent owing to mental disorder.
In contrast, informed consent would hardly, if at all, be considered as being precisely that
in the absence of understanding, choosing, and communicating—thus, supporting the logi-
cal necessity of these actions. “Acceptance,” however, is like the actions considered in the
previous paragraph, not a necessary condition to giving informed consent either. For exam-
ple, when someone does not accept some of the information or the need for an intervention,
he may still agree to the intervention for other reasons (say, to please his spouse) and yet be
considered capable of giving informed consent. In relation to incapacity to give informed
consent, however, “acceptance” is a necessity in a way that the other actions (considered in
the previous paragraph) are not. The reason is when a mental disorder prevents the afflicted
person from accepting the need for the intervention, the mental disorder gets in the way of
the person giving informed consent, that is, the person is thus incapable even if he says the
intervention may proceed (see case vignette no. 3 below).
Both necessary and contingent actions, the second component to incapacity to give
informed consent, may thus be recognized as relevant. The necessary actions relevant in the
assessment of incapacity to give informed consent owing to mental disorder have been iden-
tified as (sustained) understanding, choosing decisively, communicating, and accepting the
need for the intervention. These may be assessed generally, whereas the contingent actions
that may be important to the patient, or by legal prescription, will require additional atten-
tion and verification as required by the specific context.
The relevance of these actions to incapacity to give informed consent hinge on the causal
connection between them and a mind as affected by mental disorder—described here as
the third component, and supported by much empirical evidence (Owen et al. 2008; Adida
et al. 2008; Dunn et al. 2007). None of the existing measures of capacity to give informed
consent assesses for this causal connection. At best, these instruments presume that when
capacity is lacking and the patient suffers from a mental disorder, the latter has caused the
lack of capacity. Instead of making this potentially mistaken presumption, it would be logi-
cally and ethically better to assess clinically for the causal connection. That can then serve
as justification of a clinical finding that the incapacity to give informed consent is being
caused by someone’s mental disorder. The clinical vignettes of the next section provide

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Incapacity to Give Informed Consent Owing to Mental Disorder    1137

examples of how this causal connection is drawn, and how doing so differentiates between
the vignettes.
Consider the situation in which a person is acutely suffering from mental disorder and
does not understand a proposed treatment. The person may not understand because of the
mental disorder, but not necessarily so. The person may not want to understand and may
resist understanding for reasons that have nothing to do with his mental disorder, such as
lack of schooling, the details being too upsetting, etc. For the clinician to make a claim for or
against incapacity, it would necessitate an assessment of the causal connection (Van Staden
2009). If not, the clinician may make a mistake by assessing someone as being incapable of
giving informed consent when the patient by reason of choice or preference (and not mental
disorder) does not understand, communicate, choose decisively, or accept the need for the
intervention. The bottom line is if the clinician wants to claim “owing to mental disorder,” he
should assess for the “owing to.”
Thus, the mere presence of a mental disorder is not sufficient to claim that there is a causal
connection for a particular person. Since the causal relationships between incapacity and
psychopathological variables are rather complex and variable (Candia and Barba 2011), the
assessment will need to be informed by the mental content of the patient to justify the find-
ing of a causal connection. In this assessment of the causal relationship, the guiding ques-
tion will need to be: “Does the disordered mental content prevent the particular patient
from understanding, communicating, choosing decisively, or accepting the need for the
intervention?”
Assessing for a causal connection may be difficult clinically in some instances, but being
difficult does not absolve the need to do so. A justification for a causal connection, or lack
thereof, in a specific situation is better, even when having its shortcomings, than no consid-
eration of a causal connection at all. That justification may be refined when part and parcel
of good process (see below), and if the process is good, be the best afforded in that context in
spite of some shortcomings.
Clinical examples in the next section will demonstrate further that assessing clini-
cally for incapacity to give informed consent owing to mental disorder requires a thor-
ough and accountable consideration of the three components: (1) the presence of mental
disorder as well as the mental contents as affected by mental disorder that are (2) caus-
ally connected to (and more specifically, preventing the patient from) (3) understand-
ing the intervention, communicating, choosing decisively, or accepting the need for the
intervention.

Clinical Examples

VIGNETTE NO. 1

John suffered from schizophrenia with continuous symptoms that included delusions of grandeur (“I
am of French royalty”) and auditory hallucinations in the form of running commentary. He developed
diabetes mellitus and medication was proposed for it. He clearly understood the proposed treatment
and communicated his decisive choice to take it.

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1138    Consent to Psychiatric Treatment and Incapacity

VIGNETTE NO. 2

Ralph suffered from schizophrenia with continuous symptoms that included delusions of grandeur
and auditory hallucinations in the form of running commentary. His peptic ulcer had ruptured into the
abdominal cavity, which required an emergency laparotomy to save him from bleeding to death. He
understood the nature and purposes of the proposed surgery, and he communicated his decisive choice
not to have it. He had the delusion that magical spirits, which had been the source of his superhuman
powers, would escape from his body through a laparotomy and he would die without this source of
power. The surgery was not necessary, he said, because the spirits would stop the internal bleeding.

VIGNETTE NO. 3

Mary suffered from a major depressive episode of a severe degree, which included a Cotard’s delu-
sion, stating “I have already died—all interventions are futile.” Electroconvulsive treatment (ECT) was
recommended and she understood what ECT involved. She communicated her choice of having this
treatment.

Assuming there is no more relevant information to any of these cases, neither John, Ralph nor
Mary was prevented by their respective mental disorders from understanding the proposed
interventions and to communicate their decisive choices. Any of their disorders potentially
might have prevented them from understanding: for example, if Mary had been in a catatoni-
cally depressed state, and John or Ralph had had severe disorganization of their thoughts.
Nonetheless, it is more likely to be neurocognitive disorders like dementia and delirium, or
intellectual disability of a sufficient degree that would prevent someone from understanding
the respective interventions (Simon et al. 2008; Van Staden and Krüger 2003).
In none of the cases were these patients prevented by their respective mental disorders
from communicating or choosing decisively. They could have been, of course, but mental
disorders typically involving a severe inability to communicate are dementia (when of a suf-
ficient degree), intellectual disability (when of a sufficient degree), and catatonic states. The
severe ambivalence sometimes seen in a major depressive episode or the inability to stick to a
decision seen in a manic episode may prevent a patient from choosing decisively.
While John’s mental disorder does not prevent him from accepting the need for an inter-
vention, the mental disorders of Ralph and Mary respectively do prevent them from accept-
ing the need for the proposed intervention. That makes Ralph and Mary incapable of giving
informed consent, whereas John, using the information available and the other conditions
considered in the preceding paragraphs, would not be rendered incapable. Mary, by vir-
tue of her Cotard’s delusion, thought the ECT would be futile, meaning that her delusion
prevented her from accepting the need for the ECT. Ralph’s delusion prevented him from
accepting the need for the surgery. Note that whether Ralph and Mary agreed or declined
the proposed intervention should have no bearing on whether they should be considered
incapable of giving informed consent. Even if Ralph had agreed to the surgery, saying, for
example, that some of the loyal spirits would remain and the surgeon would see the evidence
of their work including the stopping of the bleeding after the laparotomy, his delusion would
still prevent him from accepting the need for the intervention—he would be incapable of
giving informed consent. In the cases of John and Ralph, furthermore, we can see that their
suffering from a mental disorder, even in these cases the same disorder, is not sufficient in
considerations of their capacity to give informed consent.

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Facing Complexities through Good Process    1139

Absent from the three vignettes is an account of the processes in which the assess-
ment of incapacity should best be couched. Next, the focus is on what would make these
processes good.

Facing Complexities through Good Process

Good process is required to meet the requirements for informed consent as well as for the
assessment of incapacity to given informed consent owing to mental disorder. What makes
for good process depends in part on the actions of the practitioner: that is, taking action
guided by clinical knowledge and skill to provide information that would be sufficient
and to establish the patient’s wishes and values in this regard; in other words, considering
conjointly the external and internal influences that are pertaining in the specific situation.
Furthermore, this involves assessing clinically for incapacity to give informed consent in a
thorough and accountable consideration of the three components described above—(1) the
presence of mental disorder as well as the mental contents as affected by mental disorder that
are (2) causally connected to (and more specifically, preventing the patient from) (3) under-
standing the intervention, communicating, choosing decisively, or accepting the need for
the intervention.
Whether the process is good, however, is not merely about the actions of the practitioner,
critically important as these are (see Chapter 82, this volume on the virtues of the therapist).
What makes for good process is engagement between all the role players, conjoint reflection,
and co-production in accounting conjointly for the complexities and challenges in obtaining
and giving informed consent. This means that the necessary conditions to both informed
consent and incapacity to give informed consent are not taken as fixed but as dynamic. The
consent can be influenced by good process. In this way, understanding can be nurtured, spe-
cial measures can be taken to ensure better communication, undue influences can be man-
aged, more certainty about the appropriate choices can be cultivated, and acceptance can be
developed and grown co-productively (Mandarelli et al. 2012). This may be accomplished
clinically, for example, through the theoretical and practical framework of values-based
practice (Chapters 28, 39, and 60, this volume).
Rather than expecting ready-made universal answers, good process accounts
co-productively for what and how much is required for giving informed consent to the spe-
cific intervention in its context: how much is sufficient information; which influences are
pertaining and what should be done about them; how much is sufficient understanding of an
intervention; how much is sufficient communication about the intervention; how decisive
and lasting a choice for or against an intervention may be; the need for an intervention from
the respective points of view of the practitioner, the patient and other role players as relevant;
and whatever the specific context would suggest or even demand (Banner 2012). These com-
plexities are considered in several chapters in Section 10 of this volume.
Good process accounts for the specific intervention to which informed consent is given.
Notwithstanding the shared issues, specific interventions are associated with particular
issues in giving informed consent, such as ECT, psychiatric hospitalization, antipsychotic
medication, antidepressant medication, surgery, etc. (Sessums, Zembrzuska, and Jackson

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1140    Consent to Psychiatric Treatment and Incapacity

2011). This means that giving informed consent to X is not (necessarily) the same as giving
informed consent to Y. Moreover, incapacity to give informed consent to X is not (necessar-
ily) the same as incapacity to give informed consent to Y. So someone may be incapable of
consenting to hospitalization yet simultaneously capable of consenting to taking medication
(or vice versa).
Good process also recognizes another complexity that poses challenges both theoretically
and clinically. This has to do with the relation between the incapacity to give informed con-
sent and other incapacities. Someone who is incapable of giving informed consent owing to
mental disorder is not necessarily incapable of making a cup of coffee, or criminally incapa-
ble (Fogel et al. 2013), or incapable of other actions (Mandarelli et al. 2012). Someone who
is incapable of doing A is not (necessarily) incapable of doing B. Where A and B are about
unrelated actions, good process would allow for an action-specific assessment of incapacity,
which may be complex enough. Even more challenging, however, is when A and B are in
some way opposites. It is logically and neurologically clear that someone who is incapable
of dressing is not (necessarily) incapable of undressing (consider, for example, a dressing
apraxia). Applied to informed consent and its presumed opposite “refusal,” this means that
someone who is incapable of giving informed consent to an intervention is not (necessarily)
incapable of refusing that intervention. Logically, that is the case. Neurologically, it is poten-
tially the case in the same way that it is for dressing and undressing. There are also empirical
suggestions that consenting and refusing may be differentially impaired. For example, the
person addicted to opioids is highly likely to find it much more difficult to say “no” rather
than “I agree” when offered an opioid after surgery. What the requirements for refusal of,
rather than consent to, an intervention would be are far from clear in the literature.
Part of the problem, it seems, is that refusal is taken to be the appropriate opposite of
informed consent. The concept of refusal suggests some insistence (for the opposite) and
even some hostility in the relationship. Instead, good process may be better served by the
concept “decline,” where an intervention is declined rather than refused. Good process
through the concept of declining may avert the suggestions of insistence and even undue
influence potentially implied by the concept of refusal. Notwithstanding, the requirements
by which someone would be incapable of declining an intervention remain in need of clari-
fication, but so far that has been rather difficult theoretically and clinically. However, the
lack of clarity in this regard need not be paralyzing clinically. Even if clarity remains some-
what elusive, good process may incorporate this situation in its deliberations alongside other
uncertainties. How to do this is described, for example, in this volume, Chapter 60 on invol-
untary seclusion, and in Chapter 28 on ethical processing of context-specific uncertainties
and complexities.
In summary, good process provides for the practical co-production of the necessary con-
ditions of informed consent insofar as incapacity owing to mental disorder does not prevent
these from pertaining. By good process, the assessment of such incapacity involves a clinical
consideration of (1) the presence of mental disorder as well as the mental contents as affected
by mental disorder that (2) are preventing the patient from (3) understanding the interven-
tion, communicating, choosing decisively, or accepting the need for the intervention. What
makes for good process is engagement between all the role players, conjoint reflection, and
co-production in accounting for the complexities and challenges in obtaining and giving
informed consent. This means that the necessary conditions both to informed consent and
the incapacity to give informed consent are not taken to be fixed, but as capable of being

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Facing Complexities through Good Process    1141

influenced by good process. In this way, understanding may be nurtured, better commu-
nication may be ensured, undue influences may be identified and managed, and more cer-
tainty and acceptance may be developed and grown co-productively.

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