When decisions regarding capacity are made, if possible, it should be documented that the emergency physician acted in good faith to assess capacity (Table 1). These efforts may include the nature of the attempted conversation, attempts to offer voluntary medication or other interventions as appropriate, assessed potential risk to benefit ratio, behaviors witnessed that suggested the presence or lack of capacity, and the need for rapid action (eg, nature of the emergency).11 In addition, during post-intervention assessments/follow-up when there has been concern regarding capacity, it may be beneficial to discuss the following issues again with the patient:
• The reasons for the intervention—to demonstrate consistency of wishes, continued awareness, or lack of awareness of the situation
• The risks and benefits of the intervention—to show retention or lack thereof of knowledge and/or ability to manipulate information
• Continued assessment to see if the patient has maintained or regained capacity after an emergent treatment (eg, medication) to make informed decisions about additional or future treatment
Often, two physicians need to find an individual lacks capacity before certain legal steps can be initiated, such as treatment (eg, long-term involuntary medication) or activation of a legal document (eg, an advanced directive) unless there is concern about harm with a delay.6 Given that the initial finding of lack of capacity potentially can lead to a judicial finding of lack of competency—a legal determination made by a judge or court—special care needs to be taken in the documentation of the process. Since many states have either passed new laws or strengthened existing laws regarding limitations on individuals who lack competency or have been involuntarily hospitalized from purchasing and owning firearms, documentation for the decision leading to a legal determination of lack of competency may start to come under more scrutiny in after-the-fact civil proceedings for deprivation of freedom and rights.12
Surrogates and legal guardians
Applying the tenets of medical ethics—autonomy (respecting a person’s decision-making capacity), beneficence (benefiting the patient), non-maleficence (doing no harm), and justice (treating patients fairly and equally)—can at times be challenging in emergency psychiatry because many factors regarding the patient may be unknown, such as his beliefs, history, and underlying diagnosis.10,13 In addition, many laws and legal cases have shown a trend toward respecting the autonomy of the patient over other factors in general non-emergent situations.6,7,10 Although laws vary from jurisdiction to jurisdiction, many states require that when an individual generally lacks capacity for medical decisions, a surrogate or legal guardian should be identified or appointed in as timely a manner as possible. Surrogates can be identified through documents such as advance directives and medical power of attorney, or they are appointed by a court (ie, a legal guardian).6 In cases in which a surrogate has not previously been named, many jurisdictions will use a hierarchical structure based on family relationships to quickly identify surrogates (Table 2).14-16
Most states do not have laws that exactly address how to treat a non-emergent patient who lacks capacity and has no identifiable surrogate prior to the appointment of a guardian by a court.15 Usually, in traditional emergency situations (eg, unresponsiveness, imminent risk to self or others), consent is assumed under concepts known as emergency privilege or emergency exception (Table 3).1,16 When an emergency exception is used, the reasons why it was initiated should be documented. Many of the long-term treatment issues related to a lack of capacity may need to be addressed once the emergency has passed and a guardian or surrogate has been identified.
In most states, the guardian or surrogate is supposed to use “substituted judgment” in making treatment decisions, which requires the surrogate to take a course of action that the patient would have wanted if he were able to make the decision.14,15,17 The problem with the substituted judgment model is that it is not always known what the person would have wanted if he were able to make a decision. If substituted judgment cannot be determined, then usually the “best interest standard” is applied, which is supported by the medical ethics principles of beneficence and non-maleficence and legal notions such as parens patriae (state as parent/protector).10,14
The 1983 case Rogers v Commissioner of Department of Mental Health in the Massachusetts Supreme Judicial Court suggested how to determine substituted judgment for non-competent adults with psychiatric concerns (Table 4).18 Keep in mind that the case in question involved individuals who were inpatients and were not seen in a true psychiatric emergency setting. Even with the general restrictions in Rogers v Commissioner, it was noted: “The State as parens patriae may sanction the involuntary administration, without prior court approval, [of medication] to an incompetent or apparently incompetent patient in a mental institution only when the doctors treating him determine that the medication is necessary to avoid an immediate, substantial, and irreversible deterioration of a serious mental illness” or “if the patient poses an imminent threat to himself or others and only if no less intrusive method of treatment is available.”18
Psychiatric advance directives
Over the past 30 years, there has been a push to have more documented clarity on what an individual’s treatment preferences are before he becomes incapacitated or is seen in an emergency setting.6,10,17,19 Many physicians are familiar with advance directives for physical health but are not as familiar or comfortable with psychiatric advance directives (PADs).6,10 Currently, 25 states directly recognize a PAD as an independent document, while most other states allow for the concept through other legal means, such as standard advance directives.6,10
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.