Dementia, a Hip Fracture and Nobody Legally Entitled to Consent
An 82-year-old woman with advanced dementia is brought to the emergency department by a neighbour after a fall. She has a displaced femoral neck fracture and needs surgery within 48 hours. She lives alone, has no guardian, and has never signed a designation of a person of trust. She is in pain and intermittently says "leave me alone, I want to go home"; at other times she can state her name and that the hospital is "for broken bones". Her daughter lives in Germany and is contactable by telephone. The neighbour, who has helped her for years, asks the surgeon for "the full diagnosis" and offers to sign the consent form.
1. How should the team obtain a valid consent for surgery, and what is the neighbour's role?
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Step 1 - assess capacity for this specific decision, not in general. Dementia does not automatically remove capacity. Ask whether she can understand the nature of the fracture, the proposed operation, the alternative (non-operative management with pain control and its risks) and can retain and weigh that information. Record the assessment, who made it and how.
Step 2 - if she has capacity, her own decision governs, including a refusal, and she must be given information in a form she can use.
Step 3 - if she lacks capacity, consent comes from her legal guardian. Since none exists, the social welfare centre must be asked to appoint one urgently, or to act within its statutory powers. A person of trust, had she designated one, could consent; a neighbour cannot, however well meaning.
Step 4 - emergency exception. If the delay threatens her life or would cause serious harm, treat under the emergency exception, documenting the urgency, the incapacity and the attempts to obtain consent. The neighbour's proper role is to supply information about her wishes, routines and home situation.
2. What may be said to the neighbour and to the daughter, and what else must be triggered?
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Confidentiality belongs to the patient and survives loss of capacity. The neighbour is owed information only to the extent needed for her welfare and practical help - for example, that she is stable and will not go home alone - not the diagnosis, prognosis or operation details. The daughter may be given information relevant to her mother's care only if she is the patient's person of trust or guardian, or if disclosure is justified in the patient's best interests; ordinarily this means asking the social welfare centre and, where feasible, recording why disclosure was made.
The team should also:
- notify the social welfare centre of an elderly person living alone who is at risk and now lacks a decision-maker;
- check whether any earlier written wishes exist in the record;
- arrange pain relief and delirium screening, since untreated pain worsens confusion and can make a capable patient appear incapable;
- keep trying to reach the daughter for history, not for consent.
3. The surgeon says "there is no time for paperwork, we operate now". Is that defensible, and what must appear in the record?
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It can be defensible, but only through the emergency exception - not as a shortcut around consent. The exception requires that the operation be necessary to prevent death or serious harm, that consent cannot be obtained in time, and that the treatment be proportionate to the patient's condition. A 48-hour window for a hip fracture usually leaves time to contact the social welfare centre; a deteriorating patient may not.
The record must show: the capacity assessment and its basis; the clinical urgency and why delay was unacceptable; the operation's benefits and risks explained as far as the patient could follow; the attempts made to reach the daughter and the social welfare centre, with times; who decided and on what reasoning; and the analgesia and delirium measures already taken. If a guardian is appointed later, the team should inform them of what was done and why. "No time for paperwork" is not a legal basis; a documented emergency assessment is.