Informed Consent and Civil Commitment in Emergency Psychiatry

May 1, 2007

Medical school graduation usually involves taking the Hippocratic oath, in which physicians vow not to intentionally harm their patients. Keeping patients safe is another basic principle of patient care. Physicians are charged with ensuring that their patients are in a safe environment and minimizing risks to their patients by carefully selecting treatment options.

Medical school graduation usually involves taking the Hippocratic oath, in which physicians vow not to intentionally harm their patients. Keeping patients safe is another basic principle of patient care. Physicians are charged with ensuring that their patients are in a safe environment and minimizing risks to their patients by carefully selecting treatment options. In emergency psychiatric settings, patient safety is critical, especially when the patient is a danger to himself or herself or to others.

Most physicians agree that patients should participate in decisions about their treatment. Ideally, patients would agree to the best therapy recommended by their physician, but sometimes patients refuse recommended treatment. In most situations, physicians must accept this refusal. However, there are situations in which a patient may not be competent to make decisions about his medical care.

When a patient is awake and alert and refuses treatment, a psychiatrist may be consulted to determine competence. Practices supported by law are in place to protect both the physician and the patient in such circumstances. In emergency psychiatry, the most common legal practices involve informed consent and involuntary hospitalization, which are discussed here.

INFORMED CONSENT

There is no single law that tells us how to perform informed consent or what informed consent entails. Rather, the doctrine of informed consent has been shaped over the past century by case law. If a court of appeals or a higher court hears a case, the decision may serve as a precedent that may be used as an argument in future cases.

Psychiatrists are familiar with the Tarasoff case and the court's opinion of "duty to warn and duty to protect."1 Many states do not have any statutes requiring a psychiatrist or therapist to perform a Tarasoff warning. However, psychotherapists perform this warning because of the precedent set by the court's decision in this case. Similar to the Tarasoff case, the practice of informed consent has been molded by case law.

Most physicians think of informed consent as a review of any necessary medical procedures, followed by the patient signing an informed consent document. However, informed consent has 3 components: information (or disclosure), voluntariness, and competency.

Information

Most physicians focus on the information component of informed consent because they believe that voluntariness and competency are present. Most case law that involves informed consent deals with this component.

The Salgo case of 1957 was the first to elaborate on the concept of informed consent.2 In this case, a patient's spinal cord was injured during translumbar aortography, and the patient claimed that he had not been informed of the risks. The court's opinion was that physicians are liable if they withhold facts that are necessary to form the basis of intelligent consent, but the ruling did not describe the amount and type of information that needed to be disclosed.

The type of information to be disclosed in informed consent was outlined in the findings of the Natanson v Kline case of 1960.3 Ms Natanson received a diagnosis of breast cancer, and she agreed to the recommended treatment of cobalt irradiation. She claimed that she had not been properly informed of the risk of skin burns associated with the treatment. As a result, the court determined that the necessary elements of disclosure should include the nature of the illness, the nature of the proposed treatment and its likelihood of success, the risk of untoward outcomes, and the availability of alternative treatments. This finding was based on what the court considered a "reasonable medical practitioner's standard," or the amount of information a reasonable medical practitioner would provide to his or her patient.3

Although the specific types of information were clarified in the Natanson case, it was still up to physicians to determine the amount of information to give patients. However, this standard changed in 1972 with the Canterbury v Spence case.4 Mr Canterbury had a laminectomy and was instructed to remain in bed, even while voiding, for 3 days after the procedure. He got out of bed to use the restroom and fell, resulting in a lumbar fracture and paralysis. Mr Canterbury claimed that the risk of paralysis was never disclosed to him. Dr Spence testified that he did not disclose the risk of paralysis because he feared that the patient would decline the necessary treatment. Under this court's decision, a physician must disclose enough information so that a reasonable person could make a clinical decision.

The information component of informed consent is fairly clear and has remained relatively stable for many years. The benchmark of the information component is not the physician's belief about what is the best treatment for the patient but rather the patient's belief about what treatment-with its risks and benefits-best suits his desired outcome.

Voluntariness

All treatment decisions must be made by the patient without coercion. Usually there is no clear coercion present, but if it is suspected, a few private conversations with the patient may be all that is required to clarify this.

Legally, coercion has been of greatest concern in clinical or research studies conducted at prisons and locked state mental hospitals where there are fixed groups of persons who may hope or believe that the facilities' physicians and administrators would consider an early release if they agree to assist with these trials.

Competency

Many situations in the emergency department (ED) setting in which issues of competency arise result in psychiatric consultation. However, there is still widespread misconception about competency. Only a court of law or a judge can determine incompetency; a physician cannot. A person is deemed incompetent because of functional deficits that result from a mental disorder or mental retardation. Because competency is task-specific, a patient may be considered competent to make some decisions, such as signing his will, but not competent to make other decisions, such as consenting to surgery for broken femurs.

When a court assesses competency, it primarily considers choice and understanding. The court determines whether a patient is capable of expressing his choice and whether he has adequate understanding of the information component of informed consent. For a patient to be competent, he should have a reasonable comprehension of the diagnosis, proposed treatment, risks of treatment, and availability of alternative treatments. An eighth-grade level of knowledge is a reasonable benchmark for expected level of understanding. Informed consent can be compromised when there is a clinical reason for urgent or emergency treatment to reduce morbidity or mortality.

Case Vignette

An assessment of competency was requested by the orthopedic surgery team for an elderly man with a bilateral femoral fracture. On the day of assessment, the patient asked to have his legs cast. This was not a treatment option because of the location of the fracture. It was assumed that treatment options were discussed with the patient, but he still required a review of these options and needed to be told specifically that casting was not a treatment option.

With further discussion, the patient agreed that open surgical reduction of the fracture was a reasonable procedure. His assessment of competency hinged on his ability to recall the proposed treatment and to make a logical choice. Therefore, the patient was reevaluated the next morning using open-ended, nonleading questions to elicit a description from the patient of his diagnosis, the proposed treatment and its risks, any alternative treatments, and his choice. The patient stated that he had bilateral femoral fracture and desired casting to heal these fractures. He was not able to recall any other treatment options or concerns from the discussion the day before.

Because the patient was not able to retain the information about the treatment options for a significant period, it was the opinion of the evaluating psychiatrist that the patient was not capable of consenting (or refusing to consent) to open reduction of the bilateral femoral fracture.

Informed consent and psychiatry

Psychiatric treatment is shifting to the recovery model of care, which borrows concepts from addiction treatment, physical medicine and rehabilitation, and treatment of persons with developmental disabilities.5 In this model, symptom reduction is not the key to measuring success of treatment. Instead, any needed psychiatric treatment is focused on assisting the patient in achieving life goals. Adjustments to the treatment plan and its goals will depend on whether the patient has achieved a quality of life or level of functioning comparable to his functioning before treatment began and whether his life goals have been achieved.

Treatment in the recovery model of care is driven by the patient. For example, if a patient with schizophrenia prefers a lower dose of an antipsychotic medication to minimize adverse effects, it may be acceptable for that patient to have auditory hallucinations and occasionally speak to the voices if this lower dose of medication provides a greater level of patient satisfaction. Although the lower dose results in some worsening of the auditory hallucinations, it may more effectively accomplish the patient's goals. For this patient, less sedation and fewer extrapyramidal symptoms may be a reasonable trade-off for a mild increase in auditory hallucinations.

The recovery model of care goes hand in hand with the doctrine of informed consent. Informed consent is not a one-time signature or a rapid discussion. If a patient declines a procedure, it does not mean that informed consent has ended. Informed consent is a process of exchanging information with the patient as long as he is interested in seeking treatment.

It is difficult to know what is in the best interest of patients. It is also impossible to predict whether complications will develop from a procedure or whether a medication will cause adverse effects. Furthermore, physicians seldom know a patient's plans over the weeks or months following a treatment (surgical or otherwise). If an additional procedure is performed that was not discussed during the informed consent process, it may extend the recovery time by weeks or months; the patient's schedule may not allow for this unanticipated extension.

Informed consent allows the patient to make all of the treatment choices. Any deviation from this principle places physicians at risk.

Informed consent and antipsychotic medications

Before antipsychotic medications can be given, patients must be able to make an informed decision about taking them and also need to agree to take them. The physician must explain to patients the nature of their condition; the reasons for taking the medication; any reasonable alternative treatments; the type, range, dose, and dosing frequency of medication; the method of administration (oral or injection); duration of treatment; probable side effects; and their right to withdraw consent at any time.

The treating facility must maintain a patient's signed medication consent form and a written record that the physician discussed the treatment with the patient. In addition, there must be documentation in the chart if the patient consented verbally but did not sign the medication consent form.

Although most patients agree to take medications, some are unwilling to do so. However, refusing treatment is their legal right. Sometimes, however, patients can be medicated without consent and against their will.

Forced medication and seclusion/restraints

Antipsychotic medications can be administered without a patient's consent in 3 situations: if there is an emergency, if the patient is conserved, or if a medication capacity hearing has found the patient incapable of refusing medication because of a mental disorder. An emergency is a situation in which action to impose treatment over the person's objection is immediately necessary to preserve life or prevent serious bodily harm to the patient or others and when it is impracticable to first gain consent.

Psychiatric EDs receive many patients brought in by law enforcement officials. It is not unusual for patients to be held in the ED against their will. Detaining these persons when their mental health has deteriorated may lead to them becoming agitated. If the patient begins to express his agitation verbally or behaviorally and does not respond to verbal de-escalation, the situation may become dangerous.

In this case, it may be necessary to restrain the patient in order to protect his and others' safety. When restraining a patient, most facilities will also administer emergency psychotropic medication to manage the psychosis or agitation; doing so allows for more rapid removal of restraints and provides a safer environment.

Indications for seclusion or restraints are clearly defined and are similar to those for administering involuntary medications. Restraints physically control a patient's activity in order to protect the patient or others from injury; they are typically applied to the extremities near the ankles and wrists. Seclusion is the involuntary confinement of a person alone in a room or area in which the person is physically prevented from leaving.

Seclusion and restraints should be used in emergency situations only to ensure a safe environment when less restrictive interventions to protect the patient and others from imminent risk of harm are ineffective. These protective measures should not be used for punishment, coercion, discipline, retaliation, or staff convenience or because a patient previously required them or has a history of dangerous behavior.

Protocols and documentation for the use of seclusion and restraints vary from state to state and from institution to institution. The following recommendations are from the State of California6 and include requirements from the Joint Commission on Accreditation of Healthcare Organizations.7 These recommendations state that a physician must evaluate the patient face-to-face to determine the need for seclusion or restraints within 1 hour after initiation of the intervention.

During the first hour, a staff member assigned to the patient must continually monitor the patient in seclusion or restraints face-to-face. However, for a patient in seclusion, after the first hour and with the patient's agreement, the continuous monitoring can be done by using simultaneous video and audio equipment. The well-being of the patient should be assessed at intervals of 15 minutes or less.

For patients in restraints, extremities are examined for swelling or color change and circulation is checked every 15 minutes. Range of motion of the extremities should be checked and documented every 2 hours. Toilet facilities should be offered at least every 2 hours. There must be a face-to-face reevaluation every 2 hours for minors and every 4 hours for adults in order to determine the need for continued use of seclusion or restraints.

Another important aspect of seclusion and restraints is debriefing-a discussion between the staff and the patient about the circumstances that resulted in the use of seclusion or restraints. Debriefing should occur within the first 24 hours after these interventions are discontinued. Also discussed during debriefing are ways in which a similar incident could be avoided in the future, possible intervention strategies to be used by staff to prevent any future need for these protective measures, and alternative coping methods for the patient when he is feeling agitated or aggressive.

Civil commitment

Some argue that involuntary hospitalization violates a person's civil liberties. Others believe that involuntary commitment helps protect not only the public but also the person being hospitalized: it can help ensure that the patient receives appropriate treatment and does not harm himself, and it can possibly reduce homelessness. Psychiatrists take a person's right to be in control of his life seriously, and overriding a person's free will is not taken lightly.

The state's authority to involuntarily hospitalize persons with a mental illness stems from 2 principles of government: parens patriae and police power. Parens patriae, which translates as "father of the country" or "parent of the country," allows the state, in the role of parent, to act on behalf of a mentally ill person who is judged to be unable to provide self-care.8 The authority of police power is granted to states to maintain public safety.8 Police power can be invoked when a person represents a danger to himself or others.

Clinical relevance

When evaluating a patient with a mental illness, psychiatrists are required to choose the least restrictive environment into which the patient can be discharged safely. The development of atypical antipsychotic medications, the emergence of community-based mental health programs, and the adoption by many states of outpatient commitment laws that require a person with a mental illness to take medication as a stipulation of living in the community have greatly reduced the need for civil commitment.9 Although psychiatrists would prefer patients who would benefit from hospitalization to agree to it voluntarily, there are some situations-such as when the patient is violent, suicidal, or unable to care for himself-that require involuntary commitment.

When a violent, psychotic, or suicidal patient is brought to an ED, a psychiatrist typically evaluates the patient for dangerousness and the presence of a mental illness. A psychiatrist who decides to hospitalize a patient involuntarily generally must consider whether the patient has displayed loss of emotional control; whether there is clear evidence of a psychotic disorder; and whether there is evidence of impulsivity with serious thoughts, threats, or plans to physically harm himself or others. The evaluation should be documented as thoroughly as possible.

Legal requirements

Civil commitment laws are formulated by the state legislature, and each state has its own requirements for hospitalizing a person involuntarily. The initial involuntary hold can be placed by a qualified mental health clinician and does not require immediate judicial review. After the patient is admitted to the hospital, there is a period during which a judicial review, often called a probable cause hearing, must take place to ensure due process.

During such a hearing, the mental health clinician must demonstrate that the patient is a danger to himself or others (police power) or is unable to provide self-care (parens patriae). The legal standard of proof is often probable cause. For these hearings, probable cause is sufficient reason based on information-which could be from the patient, records of his recent actions, or a reliable collateral source (family or police officer)-that shows the patient has a mental illness that causes him to be dangerous or gravely disabled.