Patient’s reproductive decision prompts doctor to seek advice on capacity

Alex Adler, Claims Manager, Avant

Sunday, 5 February 2023

Patient looking out window

Healthcare is often a delicate business. Sometimes patients request procedures for deeply personal reasons that the doctor believes may not be in their best interests, placing doctors in a challenging position.

An O & G member recently found herself in a similar situation after a patient requested a sterilisation procedure. While recognising the challenge patients face seeking voluntary sterilisation and their right to discuss their reproductive decisions freely, she contacted Avant for advice on how to proceed.

Raising issues of capacity and informed consent, the case reminds members of the importance of good medical notes and to seek a second opinion if needed.

Implications of sterilisation discussed

A 30-year-old woman who had been in a relationship for a year, presented to the doctor requesting a permanent sterilisation procedure. Since the age of six she had harboured no desire to have children and her decision had not wavered over time.

The patient’s medical history included ADHD and one termination of pregnancy. She had tried various hormonal contraceptives but reported experiencing suicidal ideation and intermittent bleeding.

The risks of the sterilisation procedure were discussed including bleeding, infection, damage to the bowel, bladder and ureter requiring additional treatment, anaesthetic risks, thromboembolism, wound problems, and a small risk of death.

The doctor also discussed the potential for the patient to later regret her decision if her situation changed, for example, if she entered a new relationship and developed a desire to have children. The procedure’s failure rate was also discussed and the possibility of reversal or IVF if she changed her mind in the future.

All other contraceptive options were offered and discussed, and she was advised to return in three months’ time after considering the implications of having the procedure.

The doctor provided both the patient and referring GP with a comprehensive letter outlining the consultation, and the risks/implications of the procedure discussed with the patient.

Doctor contacts Avant for guidance

Three months later, the patient confirmed her decision to undergo the sterilisation procedure.

The doctor contacted Avant’s Medico-legal Advisory Service for advice on whether any additional steps were required to confirm her capacity to decide to undergo the procedure.

After reviewing the case, one of Avant’s senior medical advisers believed the doctor had adequately assessed the patient’s capacity, provided sufficient information about her treatment options and discussed the risks of the procedure. However, the doctor was recommended to seek a second opinion on the patient from a psychiatrist and/or another O & G prior to performing the procedure.

The patient was grateful for the doctor’s advice and agreed to obtain second opinions from an O & G and a psychiatrist before having the procedure.

Assessing patient capacity

In this situation, the patient’s capacity to decide to undergo the sterilisation procedure was paramount. A patient must have capacity in relation to the particular decision under consideration before they can provide valid consent.

When assessing a patient’s capacity, ensure your patient can:

  • Understand the information and consequences relevant to the decision.
  • Retain the information and recall the details for long enough to make the decision.
  • Weigh up and evaluate the information throughout the decision-making process.
  • Communicate their decision and understanding.

Presumption of capacity

The law generally presumes that people have capacity to make healthcare decisions at 18 years of age (except in South Australia where capacity is presumed from 16 years of age.) This means you can assume adults have capacity unless there are circumstances or behaviours that lead you to believe your patient may not have the capacity required to make certain decisions.

A patient’s capacity may fluctuate over time and can be influenced by other factors including lack of sleep, pain, effects of alcohol, drugs or medication or psychiatric illness.

Capacity is not about the decision itself

It’s important to focus on the patient’s ability to make a decision rather than the actual decision they make. It doesn’t mean the patient lacks capacity if you would not have made the same decision or you believe the patient’s decision is irrational.

However, don’t dismiss decisions you think are unwise or out of character for your patient. This could be a red flag to check your patient’s capacity and refer them for a formal assessment. For more information on assessing capacity, read our factsheet.

If you feel strongly that the procedure is not in the patient’s best interests or not clinically indicated, or you are uncomfortable with performing the procedure, you are not obliged to perform the procedure. In these circumstances you could refer the patient to another doctor.

Key lessons

  • Ensure the patient has the capacity to make the decision under consideration. If in doubt, refer the patient for a formal assessment or seek a second opinion from another doctor.
  • All discussions should be documented in the medical records and provided to referring doctors. In circumstances like these, providing the patient with a copy of the letter ensures the patient has been informed.
  • Give the patient the opportunity to reflect on having the procedure or treatment and the risks/benefits associated with it.

If you receive a complaint, please contact us for medico-legal advice at nca@avant.org.au or on 1800 128 268, available 24/7, after hours and on weekends in emergencies.

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IMPORTANT: Scenarios in this article are based on Avant members' experiences. Certain information has been de-identified to preserve privacy and confidentiality. This article is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on its content and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this article must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published. © Avant Mutual Group Limited 2023.

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