A potential problem with some advance directives is that they are activated only when an individual lacks capacity and can be revoked at any time assuming the individual has capacity.6 This then raises the question of when to honor PADs and when to allow them to be revoked by a patient in an emergency setting. For example, the advance directive notes, “If manic, admit,” but the individual denies being manic, or there is disagreement between the health care providers on whether the severity of the patient’s symptoms reaches a mania.6 Unfortunately, there is no easy answer to this dilemma.
It is, therefore, important for psychiatrists and emergency providers to be aware of PADs when they exist, even if it may be unclear how best to implement them. Again, documenting that PADs or other advance directives were reviewed when available and followed—either strictly or in spirit—shows a good faith effort to respect patient autonomy. Ideally, these directives should be on file at the hospital where the patient presents or is brought by family members; however, this is not always the case. If the directives are known or suspected to exist but are unavailable, it should be documented that an attempt was made to identify or obtain them. If available advance directives were not reviewed in an emergency situation, clearly state why: for example, there was not enough time or circumstances did not allow the documents to be consulted before an emergency intervention was needed.
In some cases, a designated surrogate may lack the capacity to make decisions (eg, because of illness) or is unable to carry out the duties in good faith (eg, because of a falling-out in the relationship or estrangement).19 If the surrogate lacks the capacity for informed consent, the medical team should try to obtain a more appropriate surrogate.19 These concerns may be brought to light if the surrogate seems to go against previously identified wishes, disregards important aspects of the advance directives, does not seem to understand the current medical situation, or displays erratic or inappropriate behavior with the treatment team.19
In conclusion, when psychiatric emergencies arise, remember that the capacity to give consent requires the ability to communicate a clear and consistent choice, demonstrate understanding of relevant information, show appreciation for the current situation and its consequences, and engage in rational manipulation of pertinent information.4-7,19 Capacity is not static, in the sense that it is moment specific and task specific and at times is considered on a sliding scale. Often the judgment of two physicians is needed to determine lack of capacity and the need for a surrogate decision, unless there is an emergency exception (eg, concern for imminent harm). The standards usually applied to making decisions for an individual who lacks capacity are substituted judgment or best interest. Lastly, remember to document your efforts and observations when handling issues of consent because larger legal issues may be determined based on the documentation.
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.