The capacity for a person to make personal, health, and financial decisions can be significantly compromised by a traumatic brain injury (TBI). This can make it challenging for the healthcare team to determine who should be and/or who is legally able to make decisions. Each jurisdiction has different definitions and criteria for capacity for decision making. In many cases, a person requires a substitute decision maker as they recover. This can be a source of conflict among patients, families, substitute decision makers, and the health care team. A person recovering from TBI has the potential to change over time. If enough cognitive recovery ensues, they may regain the ability to make informed choices. Hence, it is important to have repeated assessment of competency over time, allowing the individual with TBI to resume making their own decisions when the time is appropriate.
Clinicians need to familiarize themselves with the legal framework surrounding the determination of capacity to consent in their jurisdiction. Education is needed to provide clinicians with the skills necessary to assess capacity with quality metrics. Resource allocation is necessary and important in planning for repeated assessment of capacity to consent. Clinicians should also be trained in the next steps if the person with TBI is deemed incompetent to consent (e.g., implementation of a substitute decision maker, trustee, or guardian).
Indicators exemples
The following are suggestions of tools and resources that can be used to support the implementation of the recommendations in this section. Healthcare professionals must respect the legal and normative regulations of the regulatory bodies, in particular with regards to scopes of practice and restricted/protected activities, as these may differ provincially
Clinical Tools:
No evidence summary has been written. These are requirements regulated by provincial regulations (e.g., Ontario Health Care Act).
All clinicians must fully and sensitively assess the competence of the person with traumatic brain injury (TBI) to consent throughout their assessment and rehabilitation interventions. The assessment of consent should be culturally sensitive. Where informed consent cannot be obtained from the person with TBI, clinicians must follow the procedures set out by jurisdiction regulations (e.g., Ontario Health Care Consent Act and the Health Profession Regulators of Ontario, Civil Code of Québec and the Act Respecting End-of-life Care), which provide guidance on the hierarchy of substitute decision-makers.
Last Updated February 2023
Clinicians should take care to ensure that the person with TBI is able to assess the risks, benefits, and/or alternatives to the intervention being offered. The clinician will ensure that the person with TBI has received all the necessary information adapted to their level of understanding regarding the intervention being offered.
When there is concern related to the person with TBI's capacity to provide informed consent, the clinician should ensure that they are familiar with relevant legal obligations and seek formal assessment as required. When a client's behaviour suggests that they may lack the capacity for decisions pertaining to personal or financial matters the clinician should seek formal capacity assessment.
Examples of behaviours that suggest a need for a substitute decision maker for a person include the individual repeatedly placing themselves at risk of real and significant harm, using funds in a fashion that makes them unavailable to meet basic needs, failing to take care of basic needs, being unaware of the value of assets and unaware of the likelihood of exploitation. The clinician will also ensure that the person with TBI has received all the necessary information adapted to their level of understanding regarding the objective of the capacity assessment.
Last Updated February 2023
If after formal assessment, the person with TBI is deemed to be incompetent to appropriately consent, adequate measures should be put in place dependent on the medico-legal recommendations of the jurisdiction. This may include the implementation of a protection mandate or private or public protective supervision (i.e., Substitute Decision Maker, Trustee, or Guardian).
Last Updated February 2023