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Capacity assessment during labour and the role of opt-out consent
  1. Kelsey Mumford
  1. Department of Bioethics, National Institutes of Health, Bethesda, Maryland, USA
  1. Correspondence to Kelsey Mumford, Department of Bioethics, National Institutes of Health, Bethesda, MD 20814, USA; kelseymumford{at}

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The authors of the feature article argue against implied consent in all episiotomy cases, but allow that opt-out consent might be appropriate in limited circumstances.1 However, they do not indicate how clinicians should assess whether the pregnant person is capable of consenting in this way during an obstetric emergency. This commentary will focus on how capacity should be determined during these circumstances, suggest next steps for clinicians if capacity is deemed uncertain or absent, and discuss the appropriate role for opt-out consent in labour.

Previous studies investigating the extent to which pregnant persons retain decision-making capacity during labour have shown poor recall, a component of capacity, about consent processes during obstetric emergency procedures in 14%–49% of cases.1 2 As the feature article acknowledges, this does not mean that pregnant persons should be assumed to lack decision-making capacity during labour. Although pain, labour intensity, exhaustion and medications can make consenting processes during labour more difficult and it is possible that these factors will result in the impaired ability of the pregnant person to make informed and voluntary decisions about treatment options, this possibility of impaired capacity should not be taken as the expected outcome nor should it be used as an excuse to skip consenting procedures.1 2 The default to treat labouring patients as able to make their own decisions still stands, although signs that a person lacks medical decision-making capacity need to be taken seriously. In light of this, how should providers make these assessments about decision-making capacities, particularly in the setting of obstetric emergencies or urgent labour scenarios?

A framework for capacity assessment during labour

Physicians are bound by a legal and ethical duty to obtain informed consent from patients prior to treatment initiation to respect patient autonomy.3 For informed consent to be considered valid, appropriate information must be disclosed to an individual with medical decision-making capacity. Although legal standards for such capacity vary across jurisdictions, the general criteria that must be satisfied for someone to be considered to have medical decision-making capacity include: the ability to understand relevant information, to appreciate the medical consequences of the situation, to reason about available treatment options and to communicate a choice.3

The American College of Obstetricians and Gynecologists Committee Opinion Number 819 supports the notion that pregnant persons should never be presumed to lack decision-making capacity simply because they are pregnant and posits that physicians can generally determine a patient’s capacity through typical patient–physician interactions.4 This is generally the case, but in the face of complicating factors, explicit assessment can be efficiently performed by the attending physician without need for outside consultation. Although guidelines have been established for decision-making capacity assessment in non-emergent settings,3 the unpredictable nature of labour can make it necessary for providers to quickly obtain informed consent prior to performing an urgent procedure.

The CURVES mnemonic for rapid capacity assessment in emergency situations can be useful in this setting.5 The first four letters remind providers of the main criteria for decision-making capacity (Can the patient Choose between options presented and Communicate their preference? Can the patient Understand the relevant risks, benefits, alternatives and consequences of the intervention? Can the patient provide Reasoning for their decision? Is the patient’s decision consistent with their Values?). In the scenario above, capacity could be assessed as in any emergency setting by describing the risks, benefits, alternatives and consequences of the procedure to the patient and asking the patient to communicate their preference and briefly explain their reasoning. Through this explanation, their understanding of the proposed procedure can be implicitly understood, although follow-up questioning might be required. Unlike most cases in an emergency room, the provider might have had a pre-existing relationship with the patient or have had time earlier in the labour course to develop an understanding of whether the present choice is consistent with the patient’s values; otherwise, further questions might be necessary depending on the urgency of the situation.

The last two letters remind providers of how to proceed if it is determined that the patient lacks capacity to a degree consistent with the risks and benefits of the decision.5 For the proposed treatment to nevertheless be provided, a true emergency must exist, meaning risk of serious and imminent harm is present, and no surrogate decision-maker is available. This last point holds particular importance in the obstetrical setting, as the spouse is typically the appropriate substitute decision-maker, and they are often in the room with the patient during labour.3 If the patient is unable to communicate their preference and/or reasoning in any meaningful way, this draws concern about the patient’s decision-making capacity to consent. It, therefore, would be appropriate to ask the appropriate substitute decision-maker to make a decision in line with the patient’s best clinical interest. Although in an ideal scenario, the provider will have discussed the possibility of an emergent situation with the patient during antenatal care or earlier in her labour course and be able to provide a recommendation for what would be consistent with the patient’s preferences or values, this will not always be the case, and the surrogate decision-maker, if available, should nonetheless be involved prior to proceeding with a procedure.

Is there a role for opt-out consent?

The authors of the feature article conclude that opt-out consent can be appropriate in the rare instance that consent has been explicitly asked, the pregnant person has not given a response, and the provider clearly feels that an urgent procedure is necessary and would be congruent with the patient’s likely wishes.1 However, without any indication from the patient of understanding the situation, the patient’s decision-making capacity in that moment cannot be assessed by the provider. Given this reality, the provider should instead seek consent from a surrogate decision-maker, if present, and only proceed with the procedure if the requirements for presumed consent are met.1 Explicit consent following a fuller discussion of the risks and benefits of the proposed procedure is necessary in all other cases.

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I would like to thank Benjamin Berkman, JD, Alison Cahill, MD and Annette Rid, MD, PhD for their comments and useful discussion regarding this manuscript. This work was completed as part of the author’s official duties as a fellow of the US National Institutes of Health (NIH) Clinical Center.



  • Contributors The listed author contributed to creating the aim of the paper, the outline of the paper and the arguments raised in the paper, as well as wrote the manuscript.

  • Funding This work was funded by the Intramural Research Programme of the NIH Clinical Center.

  • Disclaimer The NIH had no role in the analysis, writing of the manuscript, or the decision to submit it for publication. The views expressed are the author’s and do not represent the positions or policies of the NIH Clinical Center, the National Institutes of Health or the US Department of Health and Human Services.

  • Competing interests None declared.

  • Provenance and peer review Not commissioned; internally peer reviewed.

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