Informed Consent and Capacity Assessment

All five required for legally valid consent.

Missing any element makes the consent inadequate.

Anesthesia consent is typically separate from surgical consent — patients are autonomous in declining anesthesia even if accepting surgery (rare in practice but legally protected). 'Material risk' is determined by the reasonable-patient standard in most modern jurisdictions: risks a reasonable patient would want to know, not risks a reasonable physician would disclose.

Capacity is a clinical decision-making assessment performed at the bedside by any qualified provider.

Capacity is DECISION-SPECIFIC (can consent to one thing but not another — capacity to consent to appendectomy is a different threshold than capacity to refuse life-sustaining treatment) AND TIME-SPECIFIC (can fluctuate hour-to-hour with delirium, sedation, pain, hypoxia).

Capacity is NOT the same as agreeing with the provider.

A patient with full capacity has the absolute right to refuse recommended care, even unwise care.

All four required.

Use a structured assessment in unclear cases; document specifically which ability is intact vs absent.

Re-assess after optimization.

If still impaired, identify surrogate.

Document the cognitive findings, the structured capacity assessment, and the rationale for surrogate decision-making.

Psychiatry consult for borderline or contested cases.

Default order (state-specific; consult local statute): healthcare proxy / durable power of attorney for healthcare if designated → spouse → adult children (majority) → parents → adult siblings → extended family → court-appointed guardian.

Verify against your state's surrogate-consent law.

Some states have specific provisions for domestic partners, friends with longstanding relationship, or close-friend statutes.

Document the surrogate-finding process — whom you contacted, in what order, who agreed to serve.

🛡Document the emergency rationale.

Once stabilized, obtain consent for ongoing care from patient or surrogate.

Pregnancy, contraception, STI care, mental health: minor confidentiality provisions vary widely by state.

Refusal of care for a minor against medical advice may trigger child-protective involvement when the refusal poses serious risk.

Patients with limited English proficiency require a qualified medical interpreter — NOT family members, NOT Google Translate, NOT bilingual staff without certification (Title VI of the Civil Rights Act, hospital accreditation standards).

Document interpreter's name + ID in the consent note.

Health literacy: 1/3 of US adults have low health literacy.

Discuss DNR with patient or surrogate before surgery — the procedure changes the calculus (intubation + cardioversion may be necessary parts of the planned anesthetic).

Three options to document: (1) full DNR maintained as-is, (2) full suspension during anesthesia + PACU recovery period, (3) procedure-directed — patient specifies which interventions are acceptable (e.g., intubate but no chest compressions; cardiovert v-fib but no ECMO).

Document the agreed plan + duration of any suspension + when full DNR resumes. 'Automatic suspension of DNR for surgery' is obsolete and ethically problematic — it ignores patient autonomy.