Unless otherwise mandated by statute, a determination of capacity is generally made by the attending physician. First, the attending physician is in an excellent position to assess the patient's ability to meet the above three criteria for capacity to consent. Also, the attending physician is likely to be aware of how the patient's mental illness affects these criteria. Finally, the attending physician is generally the one who makes such determination with respect to other medical and surgical procedures. Should the attending physician be in doubt as to whether capacity to consent is present, use may be made of an appropriate physician consultant not otherwise associated with the patient's care.

There is concern that attending physicians may be biased to find that capacity to consent exists when the patient's decision agrees with their own. In this regard, however, ECT is no different from other treatment modalities. Fixed requirements for a priori review of capacity to consent for ECT by consultant, special committee, appointed lawyer, or judicial hearing are impediments to the patient's right to treatment and are inappropriate.

Patients who have previously been adjudicated legally incompetent or medical purposes usually have consent provided by a legally appointed guardian or conservator, although this may vary depending upon jurisdiction.

For patients with capacity to consent, ECT should only be administered with the agreement of the patient. To do otherwise would infringe upon the right to refuse treatment. Situations where the patient lacks capacity to consent for ECT are generally covered by regulations which include how and from whom surrogate consent may be obtained. In such instances, all the information typically provided regarding ECT and alternative treatment should be shared with this individual.

Informed consent is defined as voluntary when the consentor's ability to reach a decision is free from coercion or duress. Since the treatment team, family members, and friends all may have opinions concerning whether or not ECT should be administered, it is reasonable that these opinions and their basis be expressed to the consentor. In practice, the line between "advocacy" and "coercion" may be difficult to establish. Consentors who are either highly ambivalent or are unwilling or unable to take full responsibility for the decision (neither of which are rare occurrences with patients referred for ECT) are particularly susceptible to undue influence. Staff members involved in clinical case management should keep these issues in mind.

Threats of involuntary hospitalization or precipitous discharge from the hospital due to ECT refusal clearly represent undue influence. However, consentors do have the right to be informed of the anticipated effects of their actions on the clinical course and the overall treatment plan. Similarly, since physicians are not expected to follow treatment plans which they believe are ineffective or unsafe, an anticipated need to transfer the patient to another attending physician should be discussed in advance with the consentor. It is important to understand the issues involved in a consentor's decision to refuse or withdraw consent. Such decisions may sometimes be based upon misinformation or may reflect unrelated matters, e.g., anger towards self or others or a need to manifest autonomy. In addition, a patient's mental disorder can itself limit the ability to cooperate meaningfully in the informed consent process, even in the absence of psychosis.

A number of suggestions have been offered to help guarantee the right of involuntarily hospitalized patients to accept or refuse specific components of the treatment plan, including ECT. Examples of such recommendations include the use of psychiatric consultants not otherwise involved in the patient's care, appointed lay representatives, formal institutional review committees, and legal or judicial determination. While some degree of protection is indicated in such cases, overregulation will serve to limit unnecessarily the patient's right to receive treatment.

RECOMMENDATIONS

8. 1. General

a) Policies and procedures should be developed to assure proper informed consent, including when, how, and from whom it is to be obtained, and the nature and scope of information to be provided.

b) These policies and procedures should be consistent with state and local regulations.

8.2. The Requirement for Consent

a) Informed consent should be obtained from the patient except in situations where the patient lacks capacity to do so (see Section 8.5.3).

b) Informed consent for ECT is given for a specified treatment course or for a period of continuation/maintenance ECT (see Section 13.3).

c) Consent for future treatments may be withdrawn at any time, including, between ECT treatments, by the individual providing consent.

8.3. When and by Whom Should Consent Be Obtained?

a) Informed consent for ECT, including the signing of a formal consent document, should be obtained before beginning an ECT treatment course or a period of continuation or maintenance ECT. In the latter case, the consent process should be repeated at least every six months.

b) Informed consent should be obtained by the patient's attending physician, treating psychiatrist or other physician knowledgeable about both the patient and ECT (unless otherwise specified by law).

c) When separate informed consent for ECT anesthesia is required, it should be obtained by a privileged or otherwise authorized anesthesia provider.

d) The consentor should be provided ongoing feedback regarding clinical progress and side effects and any questions or concerns should be addressed.

e) If the consentor expresses reluctance about the treatment at any time prior to or during the ECT course, h/she should be reminded of his/her right to accept or refuse treatment.