In the famous treatment case Schloendorff v Society of New York Hospital, Justice Benjamin Cardozo noted that “every human being of adult years and sound mind has a right to determine what shall be done with his own body . . . except in cases of emergency. . . .”1 This is important to remember in psychiatric emergencies (“an acute disturbance of thought, mood, behavior or social relationship that requires an immediate intervention as defined by the patient, family or the community”) because the ability to “form an alliance that will support further assessment and treatment” and the capacity to give consent for treatment can be limited or nonexistent.2,3
Capacity to give consent
Modern seminal works on the determination of capacity (eg, consent for surgery or treatment) were published by Appelbaum and Grisso4 in 1988 and by Appelbaum5 in 2007. These authors note that to have the capacity to give informed consent, patients must be informed about treatment options, be able to communicate a preferred treatment (or non-treatment), understand relevant information about treatment options, demonstrate an appreciation for the current situation and its consequences, and engage in rational manipulation of pertinent information.4-7 These concepts can be shortened to “intelligently” (able to process information), “knowingly” (understand risks, benefits, and alternatives related to the situation), and “voluntarily” (free of coercion) making a decision. Although it may seem difficult in an emergency situation to apply all these concepts—since time and resources are often limited—it is important to recognize and document the abilities and deficits of a patient and what made the situation “emergent.”
Whenever possible, quote the patient’s responses in his or her own words to demonstrate understanding or misunderstanding, presence or lack of rational thought process (eg, grunting rather than responding to questions), and processing of information. It may not be enough for a patient to just parrot back what the physician says or for the patient to provide a yes or no answer because that does not necessarily denote these concepts.
CASE VIGNETTE
A patient initially refuses treatment in the emergency department but later agrees after being asked to do so by a calm, middle-aged, bearded male nurse. When the patient is asked why he changed his mind, he responds that “our father, Jesus” (ie, the nurse) had asked him to.
Although this patient knowingly understood what it meant to be treated, he did not intelligently make the decision because he was operating under a delusion that directly influenced his actions and processing of the situation. It is generally assumed an individual has capacity; however, if he behaves in a manner to suggest otherwise, such as referring to a nurse as Jesus, capacity needs to be examined even if the patient agrees with treatment.6
In the case of Zinermon v Burch, Mr Burch was taken to an emergency department where he voluntarily signed into the hospital after he had been found wandering the streets in a psychotic and injured state; he was later voluntarily transferred to a state hospital.8 After receiving treatment at the state hospital for 5 months, he filed suit claiming he lacked capacity because in his delusional state he thought he was signing into heaven. The suit was settled out of court after the US Supreme Court allowed his case to proceed, which raises many questions about the assessment of capacity in emergency departments and hospital units as well as when to involuntarily commit patients. Because the case settled, there were no definitive legal rulings except that it could proceed to a trier of fact (ie, judge or jury) to decide.
Conversely, a patient may suffer from delusions but still maintain his capacity to make a decision as long as the delusion does not affect the specific task at hand. For example, a patient might have paranoid delusions about the Central Intelligence Agency but does not believe the agency is in any way involved in his current treatment; thus, the delusion does not directly affect his capacity for treatment decisions.
Capacity to consent, besides being task specific, is also moment specific, which is in part why many consider there to be a “sliding scale” for the assessment of capacity.4,5,7 Decisions that could have greater repercussions (eg, loss of life, restrictions of liberties) generally require a greater level of understanding (eg, a lower level to be examined by a stethoscope, a higher level to sign into a hospital). A similar sliding scale of capacity may also occur in emergent situations where time and safety concerns are often critical and play into the risk/benefit assessment.4,5,9,10
Dr Shand is Clinical Chief Resident of Psychiatry, Case Western Reserve University School of Medicine, Cleveland. Dr Hall is Assistant Professor of Psychiatry, University of Central Florida College of Medicine, Orlando, FL; Affiliate Assistant Professor, University of South Florida College of Medicine, Tampa, FL; and Adjunct Professor, Barry University School of Law, Orlando, FL. The authors report no conflicts of interest concerning the subject matter of this article.
1. Schloendorff v Society of New York Hospital, 105 NE 92, 93 (NY 1914).
2. APA Task Force Emergency Psychiatry Services. Report and recommendations regarding psychiatric emergency and crisis services. 2002. http://www.psychiatry.org/learn/library--archives/task-force-reports. Accessed July 2, 2015.
3. Work Group on Psychiatric Evaluation. Practice guideline for the psychiatric evaluation of adults. 2nd ed. Am J Psychiatry. 2006;163(suppl 6):3-36.
4. Appelbaum PS, Grisso T. Assessing patients’ capacities to consent to treatment. N Engl J Med. 1988;319:1635-1638.
5. Appelbaum PS. Assessment of patients’ competence to consent to treatment. N Engl J Med. 2007; 357:1834-1840.
6. Srebnik DS, Kim SY. Competency for creation, use, and revocation of psychiatric advance directives. J Am Acad Psychiatry Law. 2006;34:501-510.
7. Nys H, Welie S, Garanis-Papadatos T, Ploumpidis D. Patient capacity in mental health care: legal overview. Health Care Anal. 2004;12:329-337.
8. Zinermon v Burch, 494 US 113 (1990).
9. Kim SY, Caine ED, Swan JG, Appelbaum PS. Do clinicians follow a risk-sensitive model of capacity-determination? An experimental video survey. Psychosomatics. 2006;47:325-329.
10. Hung EK, McNiel DE, Binder RL. Covert medication in psychiatric emergencies: is it ever ethically permissible? J Am Acad Psychiatry Law. 2012; 40:239-245.
11. Allen MH, Currier GW, Hughes DH, et al. The Expert Consensus Guideline Series. Treatment of behavioral emergencies. Postgrad Med. 2001;(special issue 1):1-88.
12. Hall RCW, Friedman SH. Guns, schools, and mental illness: potential concerns for physicians and mental health professionals. Mayo Clin Proc. 2013; 88:1272-1283.
13. Kontos N, Freudenreich O, Querques J. Beyond capacity: identifying ethical dilemmas underlying capacity evaluation requests. Psychosomatics. 2013;54:103-110.
14. Florida Statute 765.401. The proxy. http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&SearchString=&URL=0700-0799/0765/Sections/0765.401.html. Accessed July 14, 2015.
15. Luce JM. End-of-life decision making in the intensive care unit. Am J Respir Crit Care Med. 2010;182:6-11.
16. Limehouse WE, Feeser VR, Bookman KJ, Derse A. A model for emergency department end-of-life communications after acute devastating events—part I: decision-making capacity, surrogates, and advance directives. Acad Emerg Med. 2012;19:E1068-E1072.
17. Kapp MB. Medical decision-making for incapacitated elders: a “therapeutic interests” standard. Int J Law Psychiatry. 2010;33:369-374.
18. Rogers v Commissioner of Department of Mental Health, 458 NE 2d 308 (1983).
19. Soliman S, Hall RC. Forensic issues in medical evaluation: competency and end-of-life issues. Adv Psychosom Med. 2015;34:36-48.