Informed Consent for a Splint With Aphasia and a Healthcare Power of Attorney
You are an occupational therapist on an inpatient rehabilitation unit in Fargo. A 68-year-old man is 5 days post left middle cerebral artery stroke. He has moderate aphasia and mild cognitive impairment. You recommend a resting hand splint at night and caregiver training for his wife before discharge. When you explain the splint, the patient nods, smiles, and says 'okay,' but he cannot repeat back the purpose, the risks of skin breakdown, or the alternative of a positional orthosis. His daughter, who holds a healthcare power of attorney, says, 'Just do it; I approve.' The patient's wife is quiet and looks unsure. You have not formally assessed the patient's decision-making capacity. The physician's note says 'alert and oriented times two' and does not address capacity. Discharge is planned in 4 days. The splint is within OT scope, but the consent process is unclear.
1. How should the OT determine whether the patient can give informed consent to the splint?
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Consent is decision-specific. The patient may be able to consent to some low-risk tasks and not to the splint. Use plain language, aphasia supports, teach-back, and an interpreter if needed. Ask the patient to explain the purpose, risks, benefits, and alternatives in his own way. If he cannot, he lacks capacity for this decision at this time. A nod and 'okay' are not enough, especially with aphasia and cognitive impairment. Document the method and his responses. Capacity is not the same as agreeing. The physician's 'alert and oriented times two' note is not a capacity determination. If the patient can be supported to understand, use that support and re-check his understanding before treating the nod as consent.
2. If the patient lacks capacity for this decision, who may consent, and what should the OT verify?
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If the patient lacks capacity for this decision, identify the legally authorized surrogate under North Dakota law. A healthcare power of attorney may authorize the daughter if the document is valid and covers this decision. Confirm the document and whether it is active. The wife may also have authority under default law, so do not assume the daughter outranks her without checking. Explain the splint, risks, alternatives, and the patient's preferences to the surrogate. If the surrogate and wife disagree, or if the POA is unclear, request an ethics consult and social work involvement. Treat the patient's prior wishes and expressed comfort as part of the best-interest analysis. Do not let a family member's confidence substitute for legal authority.
3. What should the OT document before starting the splint?
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Document the capacity assessment, the supports used, the patient's statements, the surrogate's authority, the risks and benefits discussed, the alternatives, and the decision. Do not write 'patient consented' if he did not. Record the wife's concerns and the plan to monitor skin. If the splint is started, document the wearing schedule, skin checks, and caregiver training. If consent cannot be resolved, document the delay and the consult. Accurate contemporaneous documentation protects the patient and shows that you followed the consent process. If the patient later regains capacity, revisit the decision with him and document his response.