Medical school graduation usually involves taking the Hippocratic oath, in which physicians vow not to intentionally harm their patients. Keeping patients safe is another basic principle of patient care. Physicians are charged with ensuring that their patients are in a safe environment and minimizing risks to their patients by carefully selecting treatment options. In emergency psychiatric settings, patient safety is critical, especially when the patient is a danger to himself or herself or to others.
Most physicians agree that patients should participate in decisions about their treatment. Ideally, patients would agree to the best therapy recommended by their physician, but sometimes patients refuse recommended treatment. In most situations, physicians must accept this refusal. However, there are situations in which a patient may not be competent to make decisions about his medical care.
When a patient is awake and alert and refuses treatment, a psychiatrist may be consulted to determine competence. Practices supported by law are in place to protect both the physician and the patient in such circumstances. In emergency psychiatry, the most common legal practices involve informed consent and involuntary hospitalization, which are discussed here.
INFORMED CONSENTThere is no single law that tells us how to perform informed consent or what informed consent entails. Rather, the doctrine of informed consent has been shaped over the past century by case law. If a court of appeals or a higher court hears a case, the decision may serve as a precedent that may be used as an argument in future cases.
Psychiatrists are familiar with the Tarasoff case and the court's opinion of "duty to warn and duty to protect."1 Many states do not have any statutes requiring a psychiatrist or therapist to perform a Tarasoff warning. However, psychotherapists perform this warning because of the precedent set by the court's decision in this case. Similar to the Tarasoff case, the practice of informed consent has been molded by case law.
Most physicians think of informed consent as a review of any necessary medical procedures, followed by the patient signing an informed consent document. However, informed consent has 3 components: information (or disclosure), voluntariness, and competency.
InformationMost physicians focus on the information component of informed consent because they believe that voluntariness and competency are present. Most case law that involves informed consent deals with this component.
The Salgo case of 1957 was the first to elaborate on the concept of informed consent.2 In this case, a patient's spinal cord was injured during translumbar aortography, and the patient claimed that he had not been informed of the risks. The court's opinion was that physicians are liable if they withhold facts that are necessary to form the basis of intelligent consent, but the ruling did not describe the amount and type of information that needed to be disclosed.
The type of information to be disclosed in informed consent was outlined in the findings of the Natanson v Kline case of 1960.3 Ms Natanson received a diagnosis of breast cancer, and she agreed to the recommended treatment of cobalt irradiation. She claimed that she had not been properly informed of the risk of skin burns associated with the treatment. As a result, the court determined that the necessary elements of disclosure should include the nature of the illness, the nature of the proposed treatment and its likelihood of success, the risk of untoward outcomes, and the availability of alternative treatments. This finding was based on what the court considered a "reasonable medical practitioner's standard," or the amount of information a reasonable medical practitioner would provide to his or her patient.3
Although the specific types of information were clarified in the Natanson case, it was still up to physicians to determine the amount of information to give patients. However, this standard changed in 1972 with the Canterbury v Spence case.4 Mr Canterbury had a laminectomy and was instructed to remain in bed, even while voiding, for 3 days after the procedure. He got out of bed to use the restroom and fell, resulting in a lumbar fracture and paralysis. Mr Canterbury claimed that the risk of paralysis was never disclosed to him. Dr Spence testified that he did not disclose the risk of paralysis because he feared that the patient would decline the necessary treatment. Under this court's decision, a physician must disclose enough information so that a reasonable person could make a clinical decision.
The information component of informed consent is fairly clear and has remained relatively stable for many years. The benchmark of the information component is not the physician's belief about what is the best treatment for the patient but rather the patient's belief about what treatment—with its risks and benefits—best suits his desired outcome.
