The capacity for a person to make personal, health and financial decisions can be significantly compromised by a brain injury. This can create challenging decisions for the health care team to determine who is making decisions. Each jurisdiction has different definitions 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 between patients, families, substitute decision makers and the health care team. A person recovering from a brain injury has the potential to change over time. If enough cognitive recovery ensues, he/she may regain the ability to make informed choices. Hence it is important to have repeated assessment of competency over time, allowing the individual to resume making their own decisions when the time is appropriate.
Clinicians need to familiarize themselves with the legal framework around determination of capacity in their jurisdiction. Education is needed to provide clinicians with the skills necessary to assess capacity with quality metrics. They will be required to repeat this assessment so resource allocation is important in planning for this eventuality.
Level of evidence
All clinicians must fully and sensitively assess the capacity of the person with traumatic brain injury (TBI) to consent throughout their assessment and rehabilitation interventions. Where informed consent cannot be obtained by the person with TBI, clinicians must follow the procedures set out by their provincial regulations (e.g., Ontario Health Care Consent Act) which provide guidance on the hierarchy of substitute decision makers.
(Adapted from NZGG 2007, 14.1, p. 166)
A formal evaluation of the capacity of the person with traumatic brain injury should be conducted, if needed, by an appropriately qualified professional. Periodic re-evaluation should be conducted as indicated clinically.
A formal assessment of the needs of the person with traumatic brain injury (TBI) regarding capacity and the exercise of his/her civil rights should be made when necessary. If the person with TBI is incapacitated, adequate measures should be put in place, which may include the implementation of a protection mandate or private or public protective supervision (i.e. Substitute Decision Maker, Trustee or Guardian).
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