Informed Consent and Civil Commitment in Emergency Psychiatry

All treatment decisions must be made by the patient without coercion. Usually there is no clear coercion present, but if it is suspected, a few private conversations with the patient may be all that is required to clarify this.

Legally, coercion has been of greatest concern in clinical or research studies conducted at prisons and locked state mental hospitals where there are fixed groups of persons who may hope or believe that the facilities' physicians and administrators would consider an early release if they agree to assist with these trials.

Many situations in the emergency department (ED) setting in which issues of competency arise result in psychiatric consultation. However, there is still widespread misconception about competency. Only a court of law or a judge can determine incompetency; a physician cannot. A person is deemed incompetent because of functional deficits that result from a mental disorder or mental retardation. Because competency is task-specific, a patient may be considered competent to make some decisions, such as signing his will, but not competent to make other decisions, such as consenting to surgery for broken femurs.

When a court assesses competency, it primarily considers choice and understanding. The court determines whether a patient is capable of expressing his choice and whether he has adequate understanding of the information component of informed consent. For a patient to be competent, he should have a reasonable comprehension of the diagnosis, proposed treatment, risks of treatment, and availability of alternative treatments. An eighth-grade level of knowledge is a reasonable benchmark for expected level of understanding. Informed consent can be compromised when there is a clinical reason for urgent or emergency treatment to reduce morbidity or mortality.

An assessment of competency was requested by the orthopedic surgery team for an elderly man with a bilateral femoral fracture. On the day of assessment, the patient asked to have his legs cast. This was not a treatment option because of the location of the fracture. It was assumed that treatment options were discussed with the patient, but he still required a review of these options and needed to be told specifically that casting was not a treatment option.

With further discussion, the patient agreed that open surgical reduction of the fracture was a reasonable procedure. His assessment of competency hinged on his ability to recall the proposed treatment and to make a logical choice. Therefore, the patient was reevaluated the next morning using open-ended, nonleading questions to elicit a description from the patient of his diagnosis, the proposed treatment and its risks, any alternative treatments, and his choice. The patient stated that he had bilateral femoral fracture and desired casting to heal these fractures. He was not able to recall any other treatment options or concerns from the discussion the day before.

Because the patient was not able to retain the information about the treatment options for a significant period, it was the opinion of the evaluating psychiatrist that the patient was not capable of consenting (or refusing to consent) to open reduction of the bilateral femoral fracture.

Psychiatric treatment is shifting to the recovery model of care, which borrows concepts from addiction treatment, physical medicine and rehabilitation, and treatment of persons with developmental disabilities.⁵ In this model, symptom reduction is not the key to measuring success of treatment. Instead, any needed psychiatric treatment is focused on assisting the patient in achieving life goals. Adjustments to the treatment plan and its goals will depend on whether the patient has achieved a quality of life or level of functioning comparable to his functioning before treatment began and whether his life goals have been achieved.

Treatment in the recovery model of care is driven by the patient. For example, if a patient with schizophrenia prefers a lower dose of an antipsychotic medication to minimize adverse effects, it may be acceptable for that patient to have auditory hallucinations and occasionally speak to the voices if this lower dose of medication provides a greater level of patient satisfaction. Although the lower dose results in some worsening of the auditory hallucinations, it may more effectively accomplish the patient's goals. For this patient, less sedation and fewer extrapyramidal symptoms may be a reasonable trade-off for a mild increase in auditory hallucinations.

The recovery model of care goes hand in hand with the doctrine of informed consent. Informed consent is not a one-time signature or a rapid discussion. If a patient declines a procedure, it does not mean that informed consent has ended. Informed consent is a process of exchanging information with the patient as long as he is interested in seeking treatment.

It is difficult to know what is in the best interest of patients. It is also impossible to predict whether complications will develop from a procedure or whether a medication will cause adverse effects. Furthermore, physicians seldom know a patient's plans over the weeks or months following a treatment (surgical or otherwise). If an additional procedure is performed that was not discussed during the informed consent process, it may extend the recovery time by weeks or months; the patient's schedule may not allow for this unanticipated extension.

Informed consent allows the patient to make all of the treatment choices. Any deviation from this principle places physicians at risk.

Before antipsychotic medications can be given, patients must be able to make an informed decision about taking them and also need to agree to take them. The physician must explain to patients the nature of their condition; the reasons for taking the medication; any reasonable alternative treatments; the type, range, dose, and dosing frequency of medication; the method of administration (oral or injection); duration of treatment; probable side effects; and their right to withdraw consent at any time.

The treating facility must maintain a patient's signed medication consent form and a written record that the physician discussed the treatment with the patient. In addition, there must be documentation in the chart if the patient consented verbally but did not sign the medication consent form.

Although most patients agree to take medications, some are unwilling to do so. However, refusing treatment is their legal right. Sometimes, however, patients can be medicated without consent and against their will.