Can Someone Consent After a Head Injury?

Courtesy of Godoy Medical Forensics

Many times, a police officer will interview a defendant after a fight or a car wreck where the person being interviewed has suffered head trauma. What the police officer may not understand is that even mild Traumatic Brain Injury (mTBI) can affect a person’s ability to comprehend the questions being asked and the ramifications of the answers he is giving. From the officer’s perspective, the patient may not demonstrate any outward signs of compromised capacity. A mental health expert is best suited to assess the patient’s ability to consent at the time of the interview.

The ability to consent and make informed decisions is affected in all patients with Traumatic Brain Injury. However, this is not an either/or issue. It is, rather, one that falls into a spectrum. In some cases, the ability to make decisions is obvious, as in those with severe TBI and neurological compromise. In patients with mild or moderate TBI, it may not be so clear:

  • A case study presented by Dr. Catherine Marco (2003) discusses a gentleman with a simple cut to his head who was mildly intoxicated but “alert and aware.” However, he became agitated when the doctor wanted to run a CT scan. Agitation is a sign of a more severe internal cranial bleed. Thus, the doctor had to make the decision of whether to run the diagnostic tests against the patient’s will, or let the patient leave against medical advice and risk progressing into a coma from a possible bleed.
  • A study published in Neurology (2012) assessed the treatment consent capacity of patients across a range of TBI severity. Even patients at the lowest level of TBI demonstrated a compromise of their capacity to appreciate or understand the questions being asked. At the next level in severity, where the patient demonstrates small injuries to the brain on CT scans, the patients demonstrated capacity compromise in all three areas assessed (understanding, reasoning and appreciation).

In summary, an interview performed in the setting of any level of head trauma should be taken with caution and may not hold up in court.



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