1. health and fitness

ETHICS
DECISIONAL
CAPACITY
Can your patient refuse treatment ?
Can your patient accept treatment ?
Informed Consent
•  The patient must be well informed
•  The patient must be at the age of majority,
competent, and decisional
•  Choices must be free of coercion
WHAT IS THE AGE OF MAJORITY ?
Easy, yes
?
Are there exceptions ?
AGE OF MAJORITY IN KENTUCKY
•  Age 18, for all purposes, except as listed
•  Age 16, for mental health counseling
•  Age 21, for purchase of alcoholic beverages
•  Age 21, for care and treatment of a disabled child
other exceptions:
->
AGE OF MAJORITY IN KENTUCKY – AT ANY AGE
•  Treating an emergent risk to life or health, that
requires non-delayable intervention and family or
guardian not available
•  If declared an “emancipated minor” (e.g., military)
•  If married, even if the marriage is terminated
•  When becoming a mother, for the care of the child
•  Evaluation and treatment for substance abuse,
venereal diseases, contraception, pregnancy or
childbirth, or in cases of emotional disturbance
resulting from drug abuse by a parent or guardian
… BUT NOT including abortion or sterilization …
What is Decisional Capacity ?
Decisional Capacity
Determined by a licensed attending physician at
the bedside by a clinical assessment. To be
considered decisional the designated patient
must comprehend the following three points.
1.  Understand their condition and prognosis
2.  Understand the risk and benefit of treatment
or therapeutic alternatives
3.  Understand the pros and cons of declining
the intervention
Decisional Capacity
•  Requires an individualized assessment
•  Requires some physician judgment about
reasonableness of medical decisions
•  Should be appropriate to the case and
condition, and gravity of the circumstance
•  May not follow physician recommendations
Decisions
•  Must reflect the patient’s own personal
wishes
•  May not be optimal choices from the
physician’s medical point of view
•  May not echo the selection some others
might make
Tips on Assessing Decisional Capacity
•  If a matter of a concern: check for a power of
attorney, living will, guardianship, family, etc.
•  Provide physician-guided open discussions in
lay terminology with the patient’s best interest
at priority and without paternalism
•  Input about patient preferences from family or
others is valuable
•  Encourage patients to express their concerns
Being Decisional – includes:
•  An ability to comprehend the circumstances
•  An appreciation of the pros and cons of all
options
•  Consistency
•  The ability to indicate their selection
What are the responsibilities
of a
surrogate decision maker ?
Surrogate decision making
by family, physicians or court etc.
•  Should always reflect what is thought to be
what the patient would want for them self
and be in the best interest of the patient
•  The decision makers own wishes for the
patient are subservient to what the patient
would want
Selections
•  Should reflect the person’s own wishes…
NOT OF THE SURROGATE
•  Should be rational and make sense
•  Need not be popular or conventional
•  May differ from that of family or other people
Capacity
•  Some mental dysfunctions may not cause a nondecisional status; good mental function does not
always infer a good decisional capacity or good
decision making (decisional does not always infer
good decisions, e.g., smoking while pregnant)
•  Capacity can fluctuate over time;
e.g., as in delirious or intoxicated persons
•  As the risk and complexity of therapeutic options
increases, the degree of understanding must be
greater, too
What is competence ?
Competence
•  Competence is assumed in everyone at the age
of majority unless removed at a judicial hearing
•  Incompetence is determined by a judge in a
court of law and legally removes an individual’s
ability to exercise a certain right - that could
include health care or other decisions (e.g., may
also be for financial matters, child custody, etc.),
•  In medical incompetence, the court appoints a
guardian for health care issues
•  Once declared incompetent, regaining
competency rights requires another court
hearing
How do decisional capacity
and
competence differ ?
Decisional Capacity / Competence
•  Evaluator -
Doctor
•  Where
-
Bedside
Court
•  Duration
-
May vary
Permanent
Doctor, family, etc.
Guardian
•  Surrogates -
Judge
EMERGENCY treatment
in a non-decisional patient
if no family surrogate available
•  Attending physician can immediately
administer life or limb saving interventions
•  Second opinion consultation should follow
as soon as possible, if appropriate
•  Seek family input as soon as possible
EMERGENCY treatment
in a non-decisional patient
if family surrogate is available
•  Family becomes the decision maker
•  That person is the surrogate for the patient
•  Decisions should reflect what the
surrogate thinks the patient would want
•  The surrogate decision maker’s own
personal wishes are not relevant, only
those of the patient
•  Best is one individual as the family
spokesperson on the patient’s behalf
URGENT treatment
in a non-decisional patient
if no family surrogate available
•  If not enough time to involve the court,
two licensed physicians should concur on
treatment decisions, with one of the
doctors not directly related to this patient’s
care and both doctors should be
knowledgeable in this area of practice
•  Seek family input as soon as possible
Pressing-but-non-urgent
treatment
in a non-decisional patient
if no family surrogate available
•  If not enough time to involve the court,
two licensed physicians, not involved in this
case, should concur with the attending doctor’s
recommendations
… then …
•  Therapeutic plan reviewed by a hospital ethics
committee consultant, but … this concept
remains under current legal review
•  Otherwise need guardianship request to court
Long term treatment*
in a non-decisional patient
if no family surrogate available
Petition court for guardianship
* like in seeking nursing home placement
* could involve issues of nutrition, etc.
What if non-decisional ?
•  A surrogate makes medical decisions-… decision makers include family,
physicians, friends, other medical
staff, the hospital ethics consultant, or
a court-appointed guardian
What if incompetent ?
•  A judge appoints a guardian for a
specified area involved
Parental rights to treatment consent
•  female, for her child
In children
•  parents control consent for treatment
•  child right to refuse treatment may still be open
to question, and at physician discretion to save
life or limb
•  a child request, different than that of the parent,
may sometimes be honored, in selected cases
72 hour hold
Who authorizes ?
How often ?
When to see a judge in a court hearing ?
72 hour hold
•  To retain a patient in a hospital for up to 72
hours if they are mentally ill and due to mental
illness, dangerous to self and others
•  Obtained or discontinued by any authorized
staff physician in Kentucky and only for patients
in a Kentucky hospital
•  May not place two 72 hr holds back-to-back; yet
can follow a 72 hr hold by an MIW with a court
hearing within one week’s time
Mental Inquest Warrant (MIW)
Please explain ...
Mental Inquest Warrant (MIW)
•  Patient must have a mental illness …
… not just substance abuse alone
•  Patient must be dangerous to self or others
•  Patient should be able to benefit from treatment
•  Hospitalization must be least restrictive option
M.I.W.
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Anyone can file an MIW on a person of concern
Obtain a MIW at the court house
False statement by petitioner is fraud
Police brings person to EPS for evaluation
Licensed physician can uphold MIW and admit patient
Alternatively, doctor can reject MIW and discharge the
patient … best to be picked up by a family member
•  If hospitalized, patient must see judge in <1 wk
•  Judge can order up to 60 days commitment, then
called a Mental Inquest Order (MIO), reject MIW, or
release the patient in an Agreed Order
MIW - MIO
MIW - hospital detention until a court hearing
doctor thinks patient should stay
MIO – court ordered hospital commitment
judge orders patient to stay
Can you force treatment
on a committed patient ?
Committed Psychiatric Patients
72 hour holds, MIW, or MIO
•  Are hospitalized against their will
•  Considered competent unless court ordered
incompetent
•  Considered decisional unless a physician
declared them as non-decisional
•  Commitment does not affect competence or
decisional capacity
•  Forced psychiatric treatment against the
patient’s wishes is allowed only for overt and
immediate dangerousness or a court
treatment order (the de novo process)
ISSUES
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Abnormal mental status and decisional
Normal mental status and decisional
Normal mental status and non-decisional
Family members not in agreement
Surrogates change their mind on preplanned agenda
Parent not willing to do what child wants
Mental status changes over time
Child not following parental wishes
Making bad decisions, while pregnant … other
Clinical Vignettes
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Demented lady with diabetic foot ulcer
Man wanting to stop chemotherapy
Post operative patient needing cancer surgery
Delirious Alcoholic patient refusing treatment …
... arrives intoxicated … later in withdrawal and then recovers
Delirious cancer patient needs surgery
Psychotic patient asks for kerosene soak
Psychotic patient agrees to appendectomy
Depressed patient agrees to appendectomy
Depressed patient refuses appendectomy
Paralyzed 18 yr/old needing pacemaker contrary to parental wishes
Depressed patient refuses to continue dialysis
Not depressed patient wants to quit dialysis
Wife wishes to terminate life support in mucormycosis patient
Brain injury case with mom not ready yet to stop treatment, but patient would not want to live
Hypotensive patient in coma with son out of state
Family members disagree on decisions
Pregnant lady makes poor choices, such as smoking, drinking, etc.
Another person with clear mental status making poor choices