AAPL: Ask the Experts
Neil S. Kaye, MD, DLFAPA
Graham Glancy, MB, ChB, FRC Psych, FRCP
Ryan Hall, MD

Neil S. Kaye, MD, DFAPA and Graham Glancy, MB, ChB, FRC Psych, FRCP (C), will answer
questions from members related to practical issues in the real world of Forensic
Psychiatry. Please send questions to nskaye@aol.com.
This information is advisory only, for educational purposes. The authors claim no legal
expertise and should not be held responsible for any action taken in response to this
educational advice. Readers should always consult their attorneys for legal advice.

Q. What are your thoughts on psychiatric clearance for medical procedures (organ
transplants, sterilization, implants for stimulators, bariatric surgery, prophylactic
oophorectomy or mastectomy, gender reassignment surgery, etc.)?
Kaye:

This qualifies as one of the trickiest questions we have tackled! This
column is called Ask the Experts, not Try to Stump the Experts. My first
thought is where is the psychiatric issue? If the patient has the capacity
for informed consent, (1) the doctor must perform the procedure.
My psychologist colleague does a lot of “psych clearances” for surgical
procedures. He is very careful to simply say that the person appears to
have the capacity to weigh (no pun intended) the information they have
received but that the proper informed consent must be done by the person who will be
doing the procedure.

I might go for the double negative approach of “Nothing in my evaluation leads me to
conclude that the person lacks capacity to engage in the standard informed consent
process that is part of the usual delivery of this proposed medical procedure.” I can
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discuss a person’s understanding and hopes of what the outcome might be and perhaps
opine on how realistic they are, but that is a slippery slope.
The desire to shift liability to us by colleagues is disturbing to say the least, and it is also
discrimination against people who see a psychiatrist or may have a mental illness,
disease, or disorder. I don’t see why we would go down that path without serious
protest. Our medical colleagues (and insurers) really want us to tell them if a person is a
good candidate for a procedure or will have a good outcome and in most cases, that’s out
of our wheelhouse and strains the ethical limits of striving for impartiality and objectivity.
Glancy:
I have to say I do not feel as discombobulated about this question
as my good friend and colleague Dr. Kaye. Assessment of
competency is a core component of forensic psychiatry. Capacity
is defined differently in different jurisdictions but revolves around
whether the evaluee has the ability to understand the information
around the decision in question and secondly whether they can
appreciate the consequences of making a decision (1,2). Different
jurisdictions in the United States and Canada define capacity for various decision-making
situations. It is important to note that capacity is specific to a particular task and time. An
individual may be lacking in capacity at the time of an acute psychiatric illness but quickly
restored to capacity through treatment.
The assessor must understand the specific legal criteria for the test in their own particular
jurisdictions. One of the problems is that there is rarely a red line for measuring the
threshold of incapacity. Screening instruments such as the MOCA or the MMSE may be
helpful but not definitive, and they can only be said to have clinical utility. Similarly,
neuropsychological testing, which, of course, is time-consuming and expensive, cannot
specifically decide whether somebody does not have the capacity but can only guide the
assessor.
The difficulty Dr. Kaye alludes to is that to assess capacity for treatment, the assessor
needs to have at least some awareness of the content of the informed consent process.
For example, if a surgeon tells the patient that there is a 1 in 10,000 chance of death from
the anesthetic, the assessor needs to be aware of that instruction in order to test how the
patient understood the statement. The assessor then would need to explore how the
patient processed the consequences of the decision based on that information. Obviously,
the informed consent process generally includes more than one piece of information, and
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the assessor must have only some idea of what information the patient has been told and
how they process that information in making the decision.
In general, terms, however, the assessor can come to the conclusion that the person has,
for instance, severe neurocognitive impairment, delirium, or severe delusional disorder
that impacts the capacity to make decisions. Like many other types of assessment that the
forensic psychiatrist performs, the person at one end of the spectrum or the other is
generally easier to assess, and it is regarding those in the middle that making a conclusion
becomes much more difficult.
Perhaps one of the most apparent and clearest psychiatric symptoms that may impair
capacity is the presence of delusions.
In the prevailing case in Canada of Starson v Swayze, even an intractable grandiose
delusional system was ruled insufficient to overrule the dignity and autonomy of a patient.
In this case, the patient, who even changed his name to Professor Starson, even though he
was not a professor and this was not his name, refused medication on the grounds that it
would slow his brain down and prevent him from becoming famous. The patient stated that
he preferred his delusional state to the boredom of normalcy.
The Supreme Court ruled that even though his delusional system meant that he was not
acting in his own best interest, this did not affect his capacity to make a decision. It is of
note that 15 years after being found not criminally responsible, he gave an interview to the
newspapers stating that he was 17,000,000,000 years old and about to publish
groundbreaking physics research about the speed of light and other things but was still
under conditions from the criminal code review board.
In one setting where I work, in an accredited psychiatric hospital within the boundaries of a
prison, which shares space with a geriatric population, it is not uncommon for the general
practitioner to ask for an opinion on the capacity to give or withhold treatment on some of
his patients. In those with severe neurocognitive disorder, who may, for instance, be
refusing an operative procedure, I can generally generate an opinion, which is helpful for
the general practitioner.
In conclusion, nil desperandum—do not despair; have faith (3,) Dr. Kaye. Not only can we
contribute to the assessment of the capacity to consent to treatment, but we can also use
this article to refresh the memories of our members.
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Hall:
In general, forensic psychiatrists all know the most basic aspect of
capacity is one needs to knowingly (I want a procedure that will
change my body and its functioning), voluntarily (no one is forcing me
or applying undue influence) and with understanding (these are the
risks and these are the benefits) appreciate the actions they are
about to partake in, in order to have capacity; whether that is entering
a contract or having a medical procedure done. In general, we also know capacity is
assumed unless there is behavior or a situation which raises the question if a person lacks
it.
However, this question is getting to the specifics of the surgical medical fields or
operations where voluntary in-the-moment capacity is not enough. Hence, more in-depth
and specific evaluation to try to determine if the patient is psychologically healthy enough
to be a candidate for what is being planned. This is where I think a big difference comes
with my view on this question compared with Dr. Kaye’s. Dr. Kaye notes that if a patient
has capacity, the procedure must be done. In general, I would agree with that for most
imminent lifesaving procedures (e.g. appendectomy), life prolonging procedures (e.g.
Whipple operation), or physical pain reducing procedures (e.g. orthopedic diskectomy). I
may even generally agree with it for most elective cosmetic procedures such as tummy
tucks, nose jobs, or even liposuction, where there is no ongoing or daily lifelong
maintenance required and assuming there is not a concern for a potential psychiatric
condition such as body dysmorphia or a delusional disorder being related to the
procedure.
So why do some fields of surgical medicine require that a mental health evaluation be
done prior to the operation being done? Coming from an optimistic perspective, I will
assume that many of the fields that require it is due to the “do no harm” aspect of medical
ethics. It may be no different than requiring a patient after a certain age or certain medical
history to obtain cardiac clearance before performing an operation. In addition, other
ethical issues such as “medical stewardship” of limited resource may also justify this type
of scrutiny in certain circumstances. The last general cause for these requirements which
I will raise is that. often, these procedures were historically seen as “radical in nature”
when they first came out, which resulted in a higher level of scrutiny to occur to limit the
chances of harm. For an oversimplified and somewhat hyperbolic example, early on,
bariatric surgery was seen as radical in that instead of diet, exercise, and medications to
control weight, the surgeon was going to do an irreversible surgery, like a Roux-en-Y, that may result in chronic pain, vitamin deficiencies and other unforeseen consequences over
the rest of the patient’s potentially long life.
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I will not address the much larger question of whether mental health providers even have
the ability to accurately predict how a patient will act after a future surgery just as some
also question our ability to accurately look at future violence risk assessment. I agree with
Dr. Kaye’s raising this question though. Whether we do or do not, there is no one else but
us to aid our surgical colleagues and the patients.
It is also important to recognize that mental health has been asked/forced to be part of the
process because these procedures, in a very fundamental way, result in lifelong changes
which frequently require maintenance (e.g.: lack of reversibility, lifelong commitment to
taking medications, lifelong required daily behavioral changes). In addition, in certain
fields, such as bariatric surgery or gender reassignment surgery, the organs being operated
on are often functional, non-diseased parts of the body. Another element that must also
be acknowledged is that the people who are undergoing these interventions are often
thought to have a psychological element to their condition or for why they need/want the
intervention.
While trying to not sound inflammatory, I am acknowledging that there is often an inherent
psychological or behavioral element as to why the procedure is being done. For example,
with certain organ transplants there historically was a significant number of the
procedures needed due to psychologically influenced behaviors such as IV drug use or
alcohol consumption. For individuals considering bariatric surgery there are often
concerns about impulse control and sticking to a post operation diet which, if not followed,
could be detrimental to the individual’s health; more so than being left in an untreated
state. For gender reassignment surgery, theoretically there are functional body parts but
there is a psychologic element where the individual does not feel that their identity
matches their biologic sex. For spinal cord stimulators there is the question about chronic
pain’s mental impact on the individual.
In the context of acknowledging that there are mental health or psychologic elements
“generally” found in the majority of the individuals undergoing a procedure that requires
psychologic clearance, it is understandable why additional mental health oversight was
sought just like cardiac clearance. The real question going forward will be what does the
evidence base show regarding this extra level of scrutiny? Does it really reduce harm and
provide benefits to the patient or is it just a hurdle which unnecessarily limits access to
treatments?
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As surgical fields and medical ethics progress, will the psychiatric and psychological fields
also improve in objectively providing these evaluations which often look at factors beyond
just general capacity? At some point will it be determined that psychologic clearance is
no longer required for every individual patient undergoing a specific procedure? One day
these questions will be answered, but for right now mandatory evaluations are still
required as part of the standard of care for certain treatments and are hopeful of reducing
harm to patients and not just being a hurdle or a way to spread risk or blame for failures.
Take-Home Points:
We have all been challenged by this question and addressed it from different perspectives.
It seems that part of the problem is that there is inherent ambiguity in the question itself.
What is the real question for which you are being consulted? Is it help in ascertaining the
capacity for informed consent for a specific procedure, in which case knowing enough
about the procedure/outcomes could be relevant, or is it more of a request to help predict
the patient’s ability to tolerate the procedure, is there some reason a psychiatric condition
would affect the outcome, and can the patient comply with expected aftercare needs or
necessary lifestyle modifications. In the latter, we may have more to offer as experts in
behavior.

References:
1. Kaye, N.: Informed Consent. DPC Residents Journal. Delaware Psychiatric Center,
Wilmington, Delaware, June, 9-11, 2016
2. Hatters-Friedman H., Hall R., Competencies in Civil Law. In APA Textbook of
Forensic Psychiatry. APA. Arlington Va. Gold L., Frierson R., (eds). p 185-200
3. Glancy, G. & Regehr, C. (2020). Canadian landmark cases in forensic mental health.
Toronto: University of Toronto Press.

https://utorontopress.com/ca/canadianlandmark-cases-in-forensic-mental-health-4

4. Odes of Horace, Book 1, Ode 7, line 27
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