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Decisions regarding the care of patients with delirium are often complex because of risks associated with treatments, and these decisions frequently have to be made quickly because of the seriousness of the underlying general medical conditions. Unfortunately, delirium intermittently affects consciousness, attention, and cognition and can impair a patient's decisional capacity (i.e., the ability to make decisions as determined by a clinician's evaluation) or competence (i.e., the ability to make decisions as determined by a court of law) (126, 127).

The presence or diagnosis of delirium does not in itself mean that a patient is incompetent or lacks capacity to give informed consent (128). Instead, a determination of decisional capacity or competence to give informed consent involves formal assessment of a patient's understanding about the proposed intervention (including the intervention's risks, benefits, and alternatives) and the consequences of the decisions to be made.

Decision-making guidelines have been suggested for patients with delirium who lack decisional capacity or competence to give informed consent (129). The urgency with which treatment is needed and the risks and benefits of treatments can be used by the treating physician to choose between several alternative courses of action. In medical emergencies requiring prompt intervention, the first alternative is to treat the patient with delirium without informed consent, under the common-law doctrine of implied consent (i.e., that treatment may be provided in medical emergencies without informed consent if it is appropriate treatment that a reasonable person would want). In nonemergency situations, the clinician should obtain input or consent from surrogates. Involving interested family members can be especially helpful for choosing among equally beneficial interventions that involve low or moderate risks. The opinion of a second clinician can be useful for making decisions involving more uncertainty or interventions associated with greater risks. Obtaining the consultation of a hospital's administrator, risk manager, or legal counsel may also provide a means for reassuring family members and the treatment team that reasonable decisions are being made. For decisions that involve significant risks or substantial disagreements involving family members, a court-appointed guardian can be sought if time permits. In more emergent cases, an urgent hearing with a judge may be required. All assessments of a patient's decisional capacity or competence and the reasons for a particular course of action should be documented in the patient's medical record.

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