Consent in Psychiatric Emergencies: What Clinicians Need to Know

Psychiatric TimesVol 32 No 11
Volume 32
Issue 11

It is important to recognize and document the abilities and deficits of a patient in order to determine capacity.

Possible information to include in documentation when determining capacity

TABLE 1. Possible information to include in documentation when determining capacity

Example of hierarchy for surrogates from Florida Statute 765.40114

TABLE 2. Example of hierarchy for surrogates from Florida Statute 765.40114

Circumstances in which an emergency exception may apply

TABLE 3. Circumstances in which an emergency exception may apply

Rogers v Commissioner of Department of Mental Health

TABLE 4. Rogers v Commissioner of Department of Mental Health: how to determine substituted judgment

[[{"type":"media","view_mode":"media_crop","fid":"43583","attributes":{"alt":"","class":"media-image media-image-right","id":"media_crop_5828734211625","media_crop_h":"0","media_crop_image_style":"-1","media_crop_instance":"4774","media_crop_rotate":"0","media_crop_scale_h":"150","media_crop_scale_w":"89","media_crop_w":"0","media_crop_x":"0","media_crop_y":"0","style":"float: right;","title":" ","typeof":"foaf:Image"}}]]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.


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

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

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. 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. 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.

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