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Med Sci Law. 2013 Jul;53(3):166-71. doi: 10.1177/0025802412473963. Epub 2013 Jul 10.

Ethical and medico-legal implications of capacity of patients in geriatric surgery.

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  • 1Legal Medicine Unit, Department of Molecular Medicine, Padova University Hospital, Italy.



The aim of this study was to assess the decision-making capacity of elderly patients hospitalized in a geriatric surgery division, and the clinician's ability to assess that capacity.


The study was conducted on patients (aged >66 years) undergoing surgical procedures. Exclusion criteria were a diagnosis of psychogeriatric disorders interfering with decision-making capacity; hearing or visual impairment; and inability to communicate. Patients previously declared legally incompetent were also excluded. The methodological approach consisted of additional interviews to collect data on patients' awareness of the reasons for their hospitalization, their informed consent, and their ability to sign a consent form. The interview was integrated with a clinical-behavioral assessment by means of the Mini-Mental State Examination and the Clock Drawing Test. Data were collected anonymously.


The inclusion criteria were met by 123 patients, with a mean age ± SD of 77.65 ± 7.91 years (range 67-98). Their mean (±SD) Mini-Mental State Examination and the Clock Drawing Test scores were 24.53 ± 4.29 and 5.36 ± 2.41, respectively. Mild-to-severe cognitive impairment was identified in 39 patients (31.7%). The consent form was signed by 111 patients (90.25%), including 33 patients (29.72%) with mild-severe cognitive impairment; 18 patients (16.21%) were unaware of the reason for their admission to hospital.


Many factors may interfere with elderly patients' ability to give their valid consent to treatment, and this study reveals that clinicians may overestimate their patients' decision-making capacity. Physicians should be aware of this problem, and intellectual capacity assessments and/or enhanced consent procedures should be considered when treating elderly patients.


communication; comprehension; informed consent; medico-legal liability

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