Forensic Issues in Consultation-Liaison Psychiatry

Psychiatric TimesPsychiatric Times Vol 23 No 14
Volume 23
Issue 14

Consultation-liaison psychiatrists frequently encounter clinical situations that have legal implications. Competency evaluations, which are the most common legal question in C&L psychiatry, are reviewed in this article. In addition, the authors discuss guardianship, decision making in patients who refuse treatment, confidentiality and the role of the psychiatric consultant in against medical advice discharges.

Consultation-liaison psychiatrists frequently encounter clinical situationsthat have legal implications. The most common legal issue that arises in consultationpsychiatry is the question of competence. Practitioners often turn to thepsychiatric consultant for an opinion on whether a patient is competent when apatient is unable to consent to treatment or refuses a medically indicatedprocedure. The consultation request is often framed as a question (e.g., "IsMr. Smith competent to refuse surgery?").

This consultation request reflects a common misconception regarding theissue of competence. Competence is alegal state, not a medical one. Competence refers to the degree of mentalsoundness necessary to make decisions about a specific issue or to carry out aspecific act. All adults are presumed to be competent unless adjudicatedotherwise by a court. Incompetence isdefined by one's functional deficits (e.g., due to mental illness, mentalretardation or other mental condition), which are judged to be sufficientlygreat that the person cannot meet the demands of a specific decision-makingsituation, weighed in light of its potential consequences (Grissoet al., 1995). Only a court can make a determination of incompetence.

In contrast, psychiatric consultants can and should opine about a patient'scapacity to make an informed decision or judgment. Capacity is defined as an individual's ability to make an informeddecision. Any licensed physician may make a determination of capacity. Forensicpsychiatrists, however, are especially suited to assess a person's mentalstatus and its potential for interfering with specific areas of functioning. Anindividual who lacks capacity to make an informed decision or give consent mayneed to be referred for a competency hearing or need to have a guardianappointed. The psychiatric consultation results in an opinion regarding whethersuch actions are indicated.

Moreover, competence is issue specific. Some physicians who misconstruecompetence to be a global, black or white issue will ask psychiatricconsultants for a broad consultation on whether thepatient is competent or not. The response of the psychiatric consultant shouldbe, "Competent for what?" The capacity to make a competent, informed decisionon the issue at hand needs to be investigated. Other aspects of the patient'smental status or diagnosis are not as relevant as their abilityto comprehend and make voluntary, informed decisions regarding the immediateproblem.

Features of Patients Referred forEvaluations

The most common reason for a competency evaluation is a patient's refusal toaccept medical treatment. Frequently, this refusal stems from the patient's poorunderstanding of the proposed treatment. Many questions regarding the patient'scompetence arise from miscommunication that can be directly addressed andrectified. As a physician, the psychiatric consultant is in a unique positionto facilitate patient education about the proposed treatment and to improvecommunication between the patient and the treatment team.

Components of a Capacity Evaluation:Informed Consent

Components of the capacity evaluation include comprehension, free orvoluntary choice, and reliability. The first component of a capacity evaluationregards the comprehension of relevant information. Does the patient demonstratean understanding of their condition? If the patient does not demonstrate anunderstanding of "what is wrong," the consultant should attempt to educate thepatient. Once the patient demonstrates an understanding of their clinicalcondition, the consultant should determine the patient'sunderstanding of the proposed treatment (i.e., "What do the doctors wantto do?").

To assess capacity, the consultation psychiatrist must have a clearunderstanding of the components of informed consent. In order for consent formedical treatment to be valid, three things are required: 1) The patient musthave knowledge; 2) the patient must be competent; and 3) the consent must bevoluntary. Before capacity can be assessed, the patient should be advised ofthe risks and benefits of the proposed treatment and the risks and benefits ofelecting to forgo the proposed treatment. Patient understanding of thisinformation and the reasons for acceptance or refusal of treatment willdetermine an opinion regarding capacity. If the patient lacks capacity to giveinformed consent to medical treatment, the patient may need to be referred forlegal adjudication of competence.

The second component of a capacity evaluation is the concept of free choice.The patient's decision to accept or reject treatment must be voluntary. Inassessing the patient's capacity, the consultant should determine whetherchoices have been rendered impossible due to unrealistic fears about treatmentor other impairments in mental processes.

The final component of a capacity evaluation is reliability. Reliabilityrefers to the patient's ability to make a decision and stick to it. Indecisiveor vacillating decision-makers are not reliable. The consultant shoulddetermine if the patient's decision is stable over time.

Exceptions to Informed Consent

Courts recognize the following four exceptions to informed consent: 1)emergency; 2) incompetence or lack of capacity to make decisions that must bemade without the benefit of the court; 3) waiver; and 4) therapeutic privilege.The emergency exception refers to the delivery of treatment without consent toa patient who is unconscious or in imminent danger of serious harm.Consultation psychiatrists are not likely to be involved in such emergencysituations.

Incompetent patients, by definition, cannot give informed consent. In thiscase, consent should be obtained from a guardian or substitute decision-maker.Consultation psychiatrists are frequently involved in these cases.

The third exception to informed consent, waiver, refers to the patient'sright to waive disclosure of information. For example, a patient may tell thedoctor: "Don't tell me what's happening, just do what you think is best."Patients who waive their right to informed consent are accepting the doctor'sdecision to make unilateral medical decisions.

Finally, therapeutic privilege refers to a doctor's decision to withholdinformation from a patient because telling the patient would causepsychological damage or render the patient ineffective in decision making.Consultant psychiatrists may be asked to determine whether the disclosure ofinformation would result in psychological damage to the patient or bring aboutan irrational decision.

The Patient's Right to RefuseTreatment

In the medical model, patients have a right to refuse various types oftreatment, including life-saving surgery and chemotherapy. When an incompetentpatient refuses psychiatric treatment the court may become the vicariousdecision-maker. The standards of vicarious decision making are "best interests"and "substituted judgment." In the best interestsstandard, the decision to treat an incompetent refuseris based on "What would be in the best interests of the patient?" Best interest is defined as that courseof action that maximizes what is best for a ward (patient), and it includesconsideration of the least intrusive, most normalizing and least restrictivecourse of action given the needs of the ward (Casasantoet al., 1989). In the substituted judgment standard, the decision is based onwhat the patient would have wanted if competent, rather than what isnecessarily in the patient's best interests.

Court-Appointed Guardianships

A guardian is an individual who has the legal authority and the duty to carefor another's person or property (Garner, 1999). The ward is the person forwhom the guardian is appointed. The decision to appoint a guardian is made by acourt. States differ in the test by which the court determines whether aguardian should be appointed. Most jurisdictions require that individuals mustbe incapable of taking care of themselves. The court must find that there is aneed for a guardian and that no less restrictive alternative would be possibleand effective. If the court determines that a guardian is necessary andappropriate, the ward becomes a legal "nonentity." The ward, from that pointon, may not enter into contracts, manage funds, file lawsuits or consent totreatment.

If the matter at hand is of an urgent nature, the consultant may recommendthe appointment of a temporary guardian. Temporary guardianship is limited tothe immediate question. If the issues at hand are non-acute, the consultant mayrecommend that a guardian be obtained to address medical decisions in thefuture.

Living Wills and Advance Directives

An advance directive is a legal document explaining a person's wish aboutmedical treatment if one becomes incompetent or unable to communicate (Garner,1999). Advance directives include living wills and proxy directives or durablepower of attorney. A living will is a legal document that outlines anindividual's preferences regarding medical treatment if they become terminallyill or unable to communicate. Individuals may identify a particular person,called a durable power of attorney,to make medical decisions if they become incompetent.

Consultation psychiatrists may be asked to consult in cases in which thepatient is refusing a decision made by their durable power of attorney. Inthese cases, the consultant's task is to determine whether the patient has thecapacity to make medical decisions. If the patient is found to have capacity tomake medical decisions, the patient's preference for treatment should befollowed. However, if the patient does not have the capacity to make medicaldecisions, the durable power of attorney will act as the substitutedecision-maker. In the event of incompetence and the absence of an advance directive,some states have statutes that recognize family members as appropriatedecision-makers.

Confidentiality and Privilege inConsultations

Confidentiality refers to thephysician's obligation to keep information learned in a professionalrelationship private from other parties. Ethically, the psychiatrist maydisclose only that information which is relevant to a given situation. Forexample, it is usually unnecessary to report sensitive information such as anindividual's sexual orientation or their fantasies (Bronheimet al., 1998).

Privilege refers to the patient'sright to prevent a physician from providing testimony about personal medicalinformation. The psychiatrist has a duty to honor the patient's privilegeunless ordered to testify by a judge. Information gained in confidence about apatient may not be released without the authorization of the patient. However,there are a number of exceptions to this. They include mandatory reporting(child abuse, elder abuse and infectious disease), court-ordered examinations,patient litigant exceptions (patient puts their mental condition at issue), and(in some states) commitment proceedings and treatment refusal hearings. In anemergency, the physician may also breach confidentiality. For example, apatient presents to the emergency department with a complaint of depression andfeeling hopeless. The patient denies feeling suicidal. However, the patient'shistory is significant for two previous suicide attempts. The patient insistson discharge home. The patient cannot forbid the physician from contactingrelatives to ascertain information necessary to assess the suicide risk.

Against Medical Advice Discharge

The role of the psychiatric consultant in against medical advice (AMA)discharge is to understand why a patient chooses to leave the hospital againstthe advice of their physician and to evaluate whether the patient meetsinvoluntary commitment criteria. More specifically, the psychiatric consultant'sresponsibility is to determine whether the patient has the capacity to refusehospital treatment. The first step in evaluating a patient who is threateningto leave AMA is to speak to the treatment team and gather information regardingthe patient's clinical course. The consultant should understand the severity ofthe patient's illness, the proposed treatment, the risks and benefits of thetreatment, and the risk associated with leaving the hospital.

The psychiatric consultant is then in a position to determine whether the patientalso understands the severity of their illness, the proposed treatment, itsrisks and benefits, and the risks of leaving the hospital. If the patient lackscapacity to understand this information and meets the state criteria forinvoluntary commitment, the consultant may recommend that steps to obtaininvoluntary commitment be undertaken. In cases where the patient's motivationfor leaving the hospital is based on distrust of the treatment team, theconsultant may be in a unique position to serve as a mediator. The psychiatristcan bring the patient's concerns to the team and propose a way to work throughthem.


The responsibilities of a consultation psychiatrist include a generalunderstanding of the legalities of medical decision making. Competence is afundamental requirement in medical decision making. Physicians evaluate apatient's decision-making capacity by clinical assessment; courts determinecompetence by a formal judicial proceeding.

The most common reason for a competency evaluation is a patient's refusal toaccept medical treatment. The psychiatric consultant's role in capacityevaluations is to determine if the patient currently possesses the capacity toaccept or reject the proposed treatment. Consent for medical treatment is validif the consent is voluntary, the patient is competent and the patientdemonstrates knowledge of the proposed treatment.

The court may appoint a guardian when a patient is incompetent to makemedical decisions. When an incompetent patient refuses medical treatment, thecourt becomes the vicarious decision-maker.

The psychiatric consultant may also serve as a vehicle of communicationbetween the patient and the treatment team. The psychiatric consultant has anobligation to keep information learned in consultation private and to honor thepatient's privilege. The role of the psychiatric consultant in AMA discharge isto understand why a patient chooses to leave the hospital against the advice oftheir physician and to evaluate whether the patient meets involuntarycommitment criteria.




Bronheim HE, Fulop G,Kunkel EJ et al. (1998), The Academy of Psychosomatic Medicine practiceguidelines for psychiatric consultation in the general medical setting. The Academy of Psychosomatic Medicine. Psychosomatics39(4):S8-S30.


Casasanto MD, Simian M, Roman J (1989), A model code of ethics for guardians. Whittier Law Review 2(3):543, 545-549.


Garner BA, ed. (1999), Black's Law Dictionary, 7th ed. St. Paul, Minn.:West Group.


Grisso T, Appelbaum PS, Mulvey EP, Fletcher K (1995), The MacArthur Treatment Competence Study. II: Measures ofabilities related to competence to consent to treatment. Law Hum Behav 19(2):127-148.

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