ETHICS

DECISIONAL CAPACITY

Can your patient refuse treatment ? Can your patient accept treatment ?

Informed Consent

•  The patient must be well informed

•  The patient must be at the age of majority, competent, and decisional •  Choices must be free of coercion

WHAT IS THE AGE OF MAJORITY ?

Easy, yes ?

Are there exceptions ?

AGE OF MAJORITY IN KENTUCKY

•  Age 18, for all purposes, except as listed •  Age 16, for mental health counseling

•  Age 21, for purchase of alcoholic beverages

•  Age 21, for care and treatment of a disabled child

other exceptions: ->

AGE OF MAJORITY IN KENTUCKY – AT ANY AGE

•  Treating an emergent risk to life or health, that requires non-delayable intervention and family or guardian not available

•  If declared an “emancipated minor” (e.g., military) •  If married, even if the marriage is terminated •  When becoming a mother, for the care of the child •  Evaluation and treatment for substance abuse,

venereal diseases, contraception, pregnancy or childbirth, or in cases of emotional disturbance resulting from drug abuse by a parent or guardian

… BUT NOT including abortion or sterilization …

What is Decisional Capacity ?

Decisional Capacity

Determined by a licensed attending physician at the bedside by a clinical assessment. To be considered decisional the designated patient must comprehend the following three points.

1.  Understand their condition and prognosis 2.  Understand the risk and benefit of treatment

or therapeutic alternatives 3.  Understand the pros and cons of declining

the intervention

Decisional Capacity •  Requires an individualized assessment

•  Requires some physician judgment about reasonableness of medical decisions

•  Should be appropriate to the case and condition, and gravity of the circumstance

•  May not follow physician recommendations

Decisions

•  Must reflect the patient’s own personal wishes

•  May not be optimal choices from the physician’s medical point of view

•  May not echo the selection some others might make

Tips on Assessing Decisional Capacity

•  If a matter of a concern: check for a power of attorney, living will, guardianship, family, etc.

•  Provide physician-guided open discussions in lay terminology with the patient’s best interest at priority and without paternalism

•  Input about patient preferences from family or others is valuable

•  Encourage patients to express their concerns

Being Decisional – includes: •  An ability to comprehend the circumstances

•  An appreciation of the pros and cons of all options

•  Consistency

•  The ability to indicate their selection

What are the responsibilities of a surrogate decision maker ?

Surrogate decision making by family, physicians or court etc.

•  Should always reflect what is thought to be what the patient would want for them self and be in the best interest of the patient

•  The decision makers own wishes for the patient are subservient to what the patient would want

Selections •  Should reflect the person’s own wishes… NOT OF THE SURROGATE

•  Should be rational and make sense

•  Need not be popular or conventional

•  May differ from that of family or other people

Capacity •  Some mental dysfunctions may not cause a non-

decisional status; good mental function does not always infer a good decisional capacity or good decision making (decisional does not always infer good decisions, e.g., smoking while pregnant)

•  Capacity can fluctuate over time; e.g., as in delirious or intoxicated persons •  As the risk and complexity of therapeutic options

increases, the degree of understanding must be greater, too

What is competence ?

Competence •  Competence is assumed in everyone at the age

of majority unless removed at a judicial hearing •  Incompetence is determined by a judge in a

court of law and legally removes an individual’s ability to exercise a certain right - that could include health care or other decisions (e.g., may also be for financial matters, child custody, etc.),

•  In medical incompetence, the court appoints a guardian for health care issues

•  Once declared incompetent, regaining competency rights requires another court hearing

How do decisional capacity and

competence differ ?

Decisional Capacity / Competence

•  Evaluator - Doctor Judge •  Where - Bedside Court

•  Duration - May vary Permanent

•  Surrogates - Doctor, family, etc. Guardian

EMERGENCY treatment in a non-decisional patient

if no family surrogate available

•  Attending physician can immediately administer life or limb saving interventions

•  Second opinion consultation should follow

as soon as possible, if appropriate •  Seek family input as soon as possible

EMERGENCY treatment in a non-decisional patient

if family surrogate is available

•  Family becomes the decision maker •  That person is the surrogate for the patient •  Decisions should reflect what the

surrogate thinks the patient would want •  The surrogate decision maker’s own

personal wishes are not relevant, only those of the patient

•  Best is one individual as the family spokesperson on the patient’s behalf

URGENT treatment in a non-decisional patient

if no family surrogate available

•  If not enough time to involve the court, two licensed physicians should concur on treatment decisions, with one of the doctors not directly related to this patient’s care and both doctors should be knowledgeable in this area of practice

•  Seek family input as soon as possible

Pressing-but-non-urgent treatment

in a non-decisional patient if no family surrogate available

•  If not enough time to involve the court, two licensed physicians, not involved in this

case, should concur with the attending doctor’s recommendations … then …

•  Therapeutic plan reviewed by a hospital ethics committee consultant, but … this concept remains under current legal review

•  Otherwise need guardianship request to court

Long term treatment* in a non-decisional patient

if no family surrogate available

Petition court for guardianship

* like in seeking nursing home placement * could involve issues of nutrition, etc.

What if non-decisional ? •  A surrogate makes medical decisions-- … decision makers include family,

physicians, friends, other medical staff, the hospital ethics consultant, or

a court-appointed guardian

What if incompetent ? •  A judge appoints a guardian for a

specified area involved

Parental rights to treatment consent •  female, for her child

In children •  parents control consent for treatment •  child right to refuse treatment may still be open

to question, and at physician discretion to save life or limb

•  a child request, different than that of the parent, may sometimes be honored, in selected cases

72 hour hold

Who authorizes ? How often ? When to see a judge in a court hearing ?

72 hour hold •  To retain a patient in a hospital for up to 72

hours if they are mentally ill and due to mental illness, dangerous to self and others

•  Obtained or discontinued by any authorized

staff physician in Kentucky and only for patients in a Kentucky hospital

•  May not place two 72 hr holds back-to-back; yet can follow a 72 hr hold by an MIW with a court hearing within one week’s time

Mental Inquest Warrant (MIW)

Please explain ...

Mental Inquest Warrant (MIW)

•  Patient must have a mental illness … … not just substance abuse alone

•  Patient must be dangerous to self or others

•  Patient should be able to benefit from treatment

•  Hospitalization must be least restrictive option

M.I.W. •  Anyone can file an MIW on a person of concern •  Obtain a MIW at the court house •  False statement by petitioner is fraud •  Police brings person to EPS for evaluation •  Licensed physician can uphold MIW and admit patient •  Alternatively, doctor can reject MIW and discharge the

patient … best to be picked up by a family member •  If hospitalized, patient must see judge in <1 wk •  Judge can order up to 60 days commitment, then

called a Mental Inquest Order (MIO), reject MIW, or release the patient in an Agreed Order

MIW - MIO

MIW - hospital detention until a court hearing doctor thinks patient should stay

MIO – court ordered hospital commitment judge orders patient to stay

Can you force treatment on a committed patient ?

Committed Psychiatric Patients 72 hour holds, MIW, or MIO

•  Are hospitalized against their will •  Considered competent unless court ordered

incompetent •  Considered decisional unless a physician

declared them as non-decisional •  Commitment does not affect competence or

decisional capacity •  Forced psychiatric treatment against the

patient’s wishes is allowed only for overt and immediate dangerousness or a court treatment order (the de novo process)

•  Abnormal mental status and decisional •  Normal mental status and decisional •  Normal mental status and non-decisional •  Family members not in agreement •  Surrogates change their mind on preplanned agenda •  Parent not willing to do what child wants •  Mental status changes over time •  Child not following parental wishes •  Making bad decisions, while pregnant … other

ISSUES

Clinical Vignettes •  Demented lady with diabetic foot ulcer •  Man wanting to stop chemotherapy •  Post operative patient needing cancer surgery •  Delirious Alcoholic patient refusing treatment … •  ... arrives intoxicated … later in withdrawal and then recovers •  Delirious cancer patient needs surgery •  Psychotic patient asks for kerosene soak •  Psychotic patient agrees to appendectomy Depressed patient agrees to appendectomy Depressed patient refuses appendectomy •  Paralyzed 18 yr/old needing pacemaker contrary to parental wishes •  Depressed patient refuses to continue dialysis •  Not depressed patient wants to quit dialysis •  Wife wishes to terminate life support in mucormycosis patient •  Brain injury case with mom not ready yet to stop treatment, but patient would not want to live •  Hypotensive patient in coma with son out of state •  Family members disagree on decisions •  Pregnant lady makes poor choices, such as smoking, drinking, etc. •  Another person with clear mental status making poor choices