Consent and capacity in a patient with fluctuating confusion
A 74-year-old man with mild vascular dementia is admitted to a MOHAP-licensed rehabilitation facility after a hip fracture. On day 2 he is oriented and agrees to begin mobilisation with the physiotherapist. On day 4 he is drowsy after a poor night, tells the nurse he 'doesn't want anyone touching my leg', and cannot repeat back the risks of refusing. His daughter arrives and demands that staff 'do the therapy anyway, he agreed on Tuesday'. The physiotherapist has a 45-minute slot and three other patients waiting. The medical team has not documented a formal capacity assessment, and there is no guardian registered.
1. How should the team decide whether to proceed with mobilisation today?
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Capacity is decision-specific and time-specific, not a global label from the dementia diagnosis. The team should assess capacity for this decision now: can he understand the relevant information, retain it, weigh it, and communicate a choice? On day 4 he is drowsy, cannot repeat the risks, and is refusing - that points to impaired capacity for this decision at this moment, which means the refusal is not automatically binding but also does not authorise overriding him.
The correct action is to defer, not to force. Re-attempt orientation measures (pain control, hydration, rest), reassess later, and document the fluctuating picture. If mobilisation is clinically urgent to prevent complications, the team should escalate to the treating physician for a documented capacity assessment and a best-interests decision made with the daughter, framed around his known values (he agreed when lucid). The daughter's instruction cannot substitute for consent, but her knowledge of his wishes is relevant to a best-interests process.
2. What are the documentation and escalation obligations before the end of the shift?
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Record: the refusal in the patient's own words, the observations supporting impaired capacity (drowsiness, inability to retain risks), the reassessment performed and its result, the discussion with the daughter including that staff did not agree to override the patient, and the escalation to the physician. Request a formal capacity assessment entry from the physician.
Escalation: inform the nurse in charge and the treating physician; if there is disagreement about best interests, refer to the facility's ethics or clinical governance process. Do not record 'non-compliant' or 'refused therapy' as a standalone entry - that erases the reasoning and exposes the team if the case is reviewed. Note also that no guardian is registered, so if impaired capacity persists, the physician should initiate the formal process for identifying a decision-maker under MOHAP requirements rather than letting the daughter self-appoint.