Consent to Medical Treatment: What about the Adult Patient who is Incapable of Providing a Valid Consent?

Abstract

Consent to medical treatment is a principle that is increasingly gaining attention in health care systems across the world. For consent to be valid, five essential elements must exist. The patient must have the mental ‘capacity’ to provide consent, he or she must receive
adequate and accurate information, understand the information disclosed, make a decision voluntarily and without coercion, and then authorize the treatment. In an article on ‘consent to medical treatment’ in a previous edition of this journal, I outlined how the Ghanaian courts may resolve consent related information disclosure disputes. That article dealt with the provision of information to the adult patient who has the mental capacity to provide lawful consent to medical treatment. A likely question that an interested reader of that article may ask is; ‘what are the legal provisions in Ghana for treating patients who lack the capacity to provide lawful consent to medical treatment as a result of factors such as a young age, disease, severe brain or mental illness or incapacity such as occurs in severe dementia, severe learning disabilities, and being unconscious? The purpose of this article is to attempt to answer such
a question. The scope of the article is limited to the management of the adult patient without the mental capacity to consent to medical treatment, which for the purpose of this article, in Ghana, refers to any individual aged 18 years or older who lacks the mental
capacity.