In the medical model, patients have a right to refuse various types of treatment, including life-saving surgery and chemotherapy. When an incompetent patient refuses psychiatric treatment the court may become the vicarious decision-maker. The standards of vicarious decision making are "best interests" and "substituted judgment." In the best interests standard, the decision to treat an incompetent refuser is based on "What would be in the best interests of the patient?" Best interest is defined as that course of action that maximizes what is best for a ward (patient), and it includes consideration of the least intrusive, most normalizing and least restrictive course of action given the needs of the ward (Casasanto et al., 1989). In the substituted judgment standard, the decision is based on what the patient would have wanted if competent, rather than what is necessarily in the patient's best interests.Court-Appointed Guardianships
A guardian is an individual who has the legal authority and the duty to care for another's person or property (Garner, 1999). The ward is the person for whom the guardian is appointed. The decision to appoint a guardian is made by a court. States differ in the test by which the court determines whether a guardian should be appointed. Most jurisdictions require that individuals must be incapable of taking care of themselves. The court must find that there is a need for a guardian and that no less restrictive alternative would be possible and effective. If the court determines that a guardian is necessary and appropriate, the ward becomes a legal "nonentity." The ward, from that point on, may not enter into contracts, manage funds, file lawsuits or consent to treatment.
If the matter at hand is of an urgent nature, the consultant may recommend the appointment of a temporary guardian. Temporary guardianship is limited to the immediate question. If the issues at hand are non-acute, the consultant may recommend that a guardian be obtained to address medical decisions in the future.Living Wills and Advance Directives
An advance directive is a legal document explaining a person's wish about medical treatment if one becomes incompetent or unable to communicate (Garner, 1999). Advance directives include living wills and proxy directives or durable power of attorney. A living will is a legal document that outlines an individual's preferences regarding medical treatment if they become terminally ill or unable to communicate. Individuals may identify a particular person, called a durable power of attorney, to make medical decisions if they become incompetent.
Consultation psychiatrists may be asked to consult in cases in which the patient is refusing a decision made by their durable power of attorney. In these cases, the consultant's task is to determine whether the patient has the capacity to make medical decisions. If the patient is found to have capacity to make medical decisions, the patient's preference for treatment should be followed. However, if the patient does not have the capacity to make medical decisions, the durable power of attorney will act as the substitute decision-maker. In the event of incompetence and the absence of an advance directive, some states have statutes that recognize family members as appropriate decision-makers.Confidentiality and Privilege in Consultations
Confidentiality refers to the physician's obligation to keep information learned in a professional relationship private from other parties. Ethically, the psychiatrist may disclose only that information which is relevant to a given situation. For example, it is usually unnecessary to report sensitive information such as an individual's sexual orientation or their fantasies (Bronheim et al., 1998).
Privilege refers to the patient's right to prevent a physician from providing testimony about personal medical information. The psychiatrist has a duty to honor the patient's privilege unless ordered to testify by a judge. Information gained in confidence about a patient may not be released without the authorization of the patient. However, there are a number of exceptions to this. They include mandatory reporting (child abuse, elder abuse and infectious disease), court-ordered examinations, patient litigant exceptions (patient puts their mental condition at issue), and (in some states) commitment proceedings and treatment refusal hearings. In an emergency, the physician may also breach confidentiality. For example, a patient presents to the emergency department with a complaint of depression and feeling hopeless. The patient denies feeling suicidal. However, the patient's history is significant for two previous suicide attempts. The patient insists on discharge home. The patient cannot forbid the physician from contacting relatives to ascertain information necessary to assess the suicide risk.Against Medical Advice Discharge
The role of the psychiatric consultant in against medical advice (AMA) discharge is to understand why a patient chooses to leave the hospital against the advice of their physician and to evaluate whether the patient meets involuntary commitment criteria. More specifically, the psychiatric consultant's responsibility is to determine whether the patient has the capacity to refuse hospital treatment. The first step in evaluating a patient who is threatening to leave AMA is to speak to the treatment team and gather information regarding the patient's clinical course. The consultant should understand the severity of the patient's illness, the proposed treatment, the risks and benefits of the treatment, and the risk associated with leaving the hospital.
The psychiatric consultant is then in a position to determine whether the patient also understands the severity of their illness, the proposed treatment, its risks and benefits, and the risks of leaving the hospital. If the patient lacks capacity to understand this information and meets the state criteria for involuntary commitment, the consultant may recommend that steps to obtain involuntary commitment be undertaken. In cases where the patient's motivation for leaving the hospital is based on distrust of the treatment team, the consultant may be in a unique position to serve as a mediator. The psychiatrist can bring the patient's concerns to the team and propose a way to work through them.Conclusion
The responsibilities of a consultation psychiatrist include a general understanding of the legalities of medical decision making. Competence is a fundamental requirement in medical decision making. Physicians evaluate a patient's decision-making capacity by clinical assessment; courts determine competence by a formal judicial proceeding.
The most common reason for a competency evaluation is a patient's refusal to accept medical treatment. The psychiatric consultant's role in capacity evaluations is to determine if the patient currently possesses the capacity to accept or reject the proposed treatment. Consent for medical treatment is valid if the consent is voluntary, the patient is competent and the patient demonstrates knowledge of the proposed treatment.
The court may appoint a guardian when a patient is incompetent to make medical decisions. When an incompetent patient refuses medical treatment, the court becomes the vicarious decision-maker.
The psychiatric consultant may also serve as a vehicle of communication between the patient and the treatment team. The psychiatric consultant has an obligation to keep information learned in consultation private and to honor the patient's privilege. The role of the psychiatric consultant in AMA discharge is to understand why a patient chooses to leave the hospital against the advice of their physician and to evaluate whether the patient meets involuntary commitment criteria.