Performing a procedure on a patient who does not have the actual competence to give consent – a case description and medical-legal analysis

The fundamental condition for the legality of a medical procedure is the consent of the patient or other persons authorized to make therapeutic decisions on their behalf. However, consent is not merely a formal act, but certain conditions must be met for the consent to be legally valid. One of these conditions is that the patient must have what is known as actual competence. This means that the patient must be in a mental and physical state in which they can receive and process information provided to them and, on this basis, decide to undergo specific medical procedures. Only then will their consent be considered informed. Polish medical law does not regulate the criteria for assessing this competence, nor does it specify the procedure to be followed or the entities responsible for such verification. In practice, however, there may be cases, especially among patients of so-called senior age/senior patients with multiple diseases, where there are reasonable doubts as to their actual competence. The article presents such a case and provides a medical and legal analysis of the doctor’s conduct in such a situation. The evidence that should undermine the presumption of actual competence was discussed, obtaining the opinion of another doctor was suggested, and the criteria for assessing this competence were indicated. Next, the procedure for patients who are unable to make decisions was discussed. Reference was made to so-called substitute consent, expressed, among others, by the actual guardian, and to the need to obtain court permission. The concept of so-called presumed consent was also presented. Fulfillment of its conditions allows the doctor to make a decision. The conditions that would entitle a doctor to take such action were analyzed. This concept was discussed in relation to simple, minimally invasive procedures, as well as surgical procedures and those involving increased risk to the patient.