Capacity to Consent to Voluntary Admission

[vespers]

Hi all,

Is there a specific test, or typical set of questions, you use in assessing a patient's capacity to consent to voluntary inpatient psychiatric admission?
Any idea whether the current American legal climate generally sets a high vs low bar for capacity on this?

Cursory Googling makes it seem like these sorts of questions were big for a bit in the 90's due to Zinermon v Burch; can't tell if they were exactly settled in the end. Some appear to have felt that patients should be able to explain the particular legal rights they waive with voluntary admission, the social stigma of admission, etc. to be able to consent to voluntary status. Others maybe felt that all a patient needs to be able to do is express the basic purposes of hospitalization and the fact that they might not be able to leave immediately on request.

With the latter, the lower bar, you would conceivably have more disorganized/psychotic patients be considered capable of signing in voluntarily.

Let me know your opinions and experience here.

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[WisNeuro]

CCTI, MacCAT-T, Hopemont are all semi-structured instruments you can use if not familiar with capacity evals. Once you are familiar with the process, the documentation is pretty easy. As far as where I've have worked, this one is a pretty low bar. Our higher bar is usually for inpts on med floors who are refusing some sort of invasive procedure against medical advice.

 

[nexus73]

patients should be able to explain the particular legal rights they waive with voluntary admission, the social stigma of admission, etc.

This seems somewhat unwieldy, like you'd end up with a lot more patients refusing admission, a lot more holds, which just destroys rapport and treatment engagement.

 

[WisNeuro]

This seems somewhat unwieldy, like you'd end up with a lot more patients refusing admission, a lot more holds, which just destroys rapport and treatment engagement.

Are you talking about quickly assessing capacity in this particular instance? Honestly, you'd get most of the info in your initial interview with the patient, It may just require another question or two. Most of the time, providers do this, they just don't know they are doing it and they don't know how to document it adequately. For these low bar cases, it's pretty minimal.

 

[FlowRate]

Are you talking about quickly assessing capacity in this particular instance? Honestly, you'd get most of the info in your initial interview with the patient, It may just require another question or two. Most of the time, providers do this, they just don't know they are doing it and they don't know how to document it adequately. For these low bar cases, it's pretty minimal.

Pretty sure he's specifically talking about capacity to consent to voluntary inpatient psychiatric hospitalization. The context for this, if it's similar to my own experience, is pressure at some institutions to admit almost every patient on a voluntary status (in MA it's called "Conditional Voluntary") unless they're actively refusing to sign on the dotted line. There are ample edge cases where you have an amenable but completely psychotic patient who's willing to sign anything you stick in front of them.

My personal take is that I require patients to be able to at least vaguely state, without a ton of coaching, 1. where they are 2. what their rights are 3. what they're signing. Otherwise I admit them on an involuntary basis. My opinion is that admitting these people on a CV also builds a case against you if you end up needing to file for commitment on the pt. You can always convert to a voluntary admission (at least in MA) at any time. So if the antipsychotics kick in enough for the patient to be able to indicate that they're on board with the treatment plan then that's when I'd have them sign in.

Caveat that this is just an opinion that I formed as a resident in discussion with some of my attendings. I have no experience actually being an inpatient attending anywhere.

 

[WisNeuro]

Pretty sure he's specifically talking about capacity to consent to voluntary inpatient psychiatric hospitalization. The context for this, if it's similar to my own experience, is pressure at some institutions to admit almost every patient on a voluntary status (in MA it's called "Conditional Voluntary") unless they're actively refusing to sign on the dotted line. There are ample edge cases where you have an amenable but completely psychotic patient who's willing to sign anything you stick in front of them.

My personal take is that I require patients to be able to at least vaguely state, without a ton of coaching, 1. where they are 2. what their rights are 3. what they're signing. Otherwise I admit them on an involuntary basis. My opinion is that admitting these people on a CV also builds a case against you if you end up needing to file for commitment on the pt. You can always convert to a voluntary admission (at least in MA) at any time. So if the antipsychotics kick in enough for the patient to be able to indicate that they're on board with the treatment plan then that's when I'd have them sign in.

Caveat that this is just an opinion that I formed as a resident in discussion with some of my attendings. I have no experience actually being an inpatient attending anywhere.

Sure, but legally and ethically, we should be assessing capacity to make these kinds of decisions. As I said, if you're doing your clinical interview correctly, you get all if not most of this info anyway. The majority of my capacity evals are on the higher bar side, (refusing feeding tube, certain surgeries, etc), so I'd have to imagine that the capacity to consent for voluntary hospitalization is fairly low, and in cases where it is clear they are not (e.g., floridly psychotic, delirious) the case is easy to document why they cannot voluntarily consent at this time.

 

[FlowRate]

Sure, but legally and ethically, we should be assessing capacity to make these kinds of decisions. As I said, if you're doing your clinical interview correctly, you get all if not most of this info anyway. The majority of my capacity evals are on the higher bar side, (refusing feeding tube, certain surgeries, etc), so I'd have to imagine that the capacity to consent for voluntary hospitalization is fairly low, and in cases where it is clear they are not (e.g., floridly psychotic, delirious) the case is easy to document why they cannot voluntarily consent at this time.

Right, I don't think OP wanted to know how to assess capacity but what bar to use. So I was trying to illustrate that my bar is "not floridly psychotic and able to minimally communicate a basic understanding of the situation." There are some inpatient units that try to insist that the bar is "signed on the dotted line" which I think is inappropriate but not so much that I think it's an indefensible position.

 

[WisNeuro]

Right, I don't think OP wanted to know how to assess capacity but what bar to use. So I was trying to illustrate that my bar is "not floridly psychotic and able to minimally communicate a basic understanding of the situation." There are some inpatient units that try to insist that the bar is "signed on the dotted line" which I think is inappropriate but not so much that I think it's an indefensible position.

Ah, ok, thanks for the clarification. Your bar is where I'd expect it to be for this type of decision.

 

[nexus73]

Are you talking about quickly assessing capacity in this particular instance? Honestly, you'd get most of the info in your initial interview with the patient, It may just require another question or two. Most of the time, providers do this, they just don't know they are doing it and they don't know how to document it adequately. For these low bar cases, it's pretty minimal.

sorry, I edited my reply with bolded quote more visible. I was saying assessing the more complex understanding of legal rights, stigma, etc would be a bit cumbersome.

 

[WisNeuro]

sorry, I edited my reply with bolded quote more visible. I was saying assessing the more complex understanding of legal rights, stigma, etc would be a bit cumbersome.

Oh, definitely, and beyond the scope of what is needed in any capacity eval.

 

[vespers]

Great discussion so far, it's all helpful.

For what it's worth, what spurs my question is flowrate's "edge case"-- the patient who is disorganized in a number of ways but expresses a desire to come into the hospital. They might seem to express a sort of understanding or knowledge of certain things, such as their location and treatment, and perhaps only certain aspects of them, either implicitly or explicitly. The fear is that you might think they are with-it enough specifically with respect to signing into the hospital, but in fact be incorrect depending on the standard of with-itness used.

 

[WisNeuro]

Great discussion so far, it's all helpful.

For what it's worth, what spurs my question is flowrate's "edge case"-- the patient who is disorganized in a number of ways but expresses a desire to come into the hospital. They might seem to express a sort of understanding or knowledge of certain things, such as their location and treatment, and perhaps only certain aspects of them, either implicitly or explicitly. The fear is that you might think they are with-it enough specifically with respect to signing into the hospital, but in fact be incorrect depending on the standard of with-itness used.

At least in the medical decision-making cases, the "edge case: instances are pretty rare, the majority of the time, it's pretty clear on one side of the bar or the other. In the edge case, as long as you document the 4 main criteria coherently and your thought process, you'll be good.

 

[whopper]

There's a landmark case that occurred in Florida. From what I was told in several lectures, at least at the time, doing involuntary admissions in Florida was a dreadful amount of paper work. So the patient in question, despite not truly consenting, and being grossly psychotic and confused, was told he was going to be admitted to Heaven he just had to sign the paper. The doctor and other staff apparently just wanted this guy getting in to avoid the paperwork.

So the patient signed, thinking he was going to get into Heaven, was treated, got better but after discharged thought to himself how inappropriate it was that he was misled into signing forms, and took legal action. The court ruled it was completely inappropriate and wrong for the staff to do what they did despite that it led to a good outcome.

In short the bar should be high, but the reality of the situation is it isn't in many cases. Often times bad providers, an overpacked ER, an empty inpatient unit, a stressful work environment can all contribute to patients just being placed here and there. All the time I see providers do something not considered appropriate but no one cares and it continues. E.g. a doctor seeing a patient for 2 minutes over the phone, billing as if it's a 30 minute appointment.

So so so many times I've seen ambulance personnel, police, and other providers dump patients to the ER that weren't appropriate for the ER. E.g. a kid threatened another kid with a gun so instead of arresting them they're sent to the PES. Then when it turns out it's not an Axis I disorder and you tell the cops to pick the person up they're like "no, and if this kid shoots someone it's on you not us cause you're letting them go!" A few years ago while I still worked in a university an ER from another county tried to dump an intellectually disabled person into our psych unit. The patient had guardians and I told the ER doctor that we couldn't accept the patient that seemed inappropriate in the first place for inpatient without the guardians being contacted due to the law. The ER doctor started screaming at me and told me I was telling her false information. I told her to contact her hospital lawyer and that I wasn't going to accept the patient at all until she 1-stopped screaming, 2-verified what I told her, and 3-got enough information showing the pt was appropriate for inpatient, and 4-the guardians were informed of what was going on and I could get verification of it. (NONE OF THOSE THINGS WERE HAPPENING). Well after about a few more minutes of her screaming I told her I was going to hang up the phone cause I already gave her 3 chances to calm herself down.

I also told the hospital operator that connected the call to not accept any phone calls from this lady again on this matter until the above were met. I never got a call from her again.

So so so many times I was in court and saw the judge wasn't doing what he or she was supposed to be doing within the law.

The "bar" and where it is in the law and what's going on in real-life don't always coincide.

 

[Stagg737]

@FlowRate , @WisNeuro ; in your states, if the patient lacks capacity but is willing to be admitted do you still file the involuntary paperwork and go to court or do you just admit them under the pretenses that they lack capacity and file for involuntary if they demand to leave? Or obviously let them leave if they regain capacity and ask to leave.

So the patient in question, despite not truly consenting, and being grossly psychotic and confused, was told he was going to be admitted to Heaven he just had to sign the paper

Wait, so the staff told the guy he was getting into Heaven by signing? As in where dead people who were good go? I've never heard that aspect of the case before, but the ruling makes a lot more sense with that context.

 

[FlowRate]

if the patient lacks capacity but is willing to be admitted

I feel like "willing to be admitted" implies that they've communicated some degree of knowing where they are and wanting to be there which is my bar for capacity in this situation. It's the more passive or totally disorganized folks who can't even really indicate that they're making a choice who I tend to admit involuntarily at first. That's really from the standpoint of the first contact while being admitted to the unit. (as are my earlier posts)

If they spend 2-3 days on the unit and continue to seem to be fine with the process then I'm more OK with signing them in voluntarily because at that point they haven't tried to run away or refuse meds or whatever and by the sum of their behavior over several days seems to indicate some degree of making a choice to agree with treatment. The worry is that you sign in someone completely psychotic on a voluntary status and then the next day they demand to leave, refuse meds, etc. Some of my attendings used to tell me that this "looks bad" at the commitment hearing because it's evidence that you thought the patient was with it enough to agree to treatment.

 

[WisNeuro]

@FlowRate , @WisNeuro ; in your states, if the patient lacks capacity but is willing to be admitted do you still file the involuntary paperwork and go to court or do you just admit them under the pretenses that they lack capacity and file for involuntary if they demand to leave? Or obviously let them leave if they regain capacity and ask to leave.

I believe that they will sign then in and file for petition if they want to leave and they are felt to not have capacity. I'm usually involved on the med floors for medical decision making. I'll also get involved when ECT is on the table and they want to know if the person has capacity to consent to that (in cases where it is not obviously clear).

 

[Stagg737]

I feel like "willing to be admitted" implies that they've communicated some degree of knowing where they are and wanting to be there which is my bar for capacity in this situation. It's the more passive or totally disorganized folks who can't even really indicate that they're making a choice who I tend to admit involuntarily at first. That's really from the standpoint of the first contact while being admitted to the unit. (as are my earlier posts)

If they spend 2-3 days on the unit and continue to seem to be fine with the process then I'm more OK with signing them in voluntarily because at that point they haven't tried to run away or refuse meds or whatever and by the sum of their behavior over several days seems to indicate some degree of making a choice to agree with treatment. The worry is that you sign in someone completely psychotic on a voluntary status and then the next day they demand to leave, refuse meds, etc. Some of my attendings used to tell me that this "looks bad" at the commitment hearing because it's evidence that you thought the patient was with it enough to agree to treatment.

The situation you mentioned has actually happened to me. Patient admitted involuntarily and extremely psychotic. Was generally cooperative (though mostly non-verbal) for several days and involuntary was dropped and he was allowed to stay voluntarily as he was taking medications willingly (this was on a Friday). I come on as the resident on call Saturday and patient walks up to the front desk like nothing was wrong and asked to leave. After you drop the involuntary, it's hard to justify filing again on someone who is still psychotic, which is why I'm curious if people actually follow through with court dates on these people.

In my situation, we d/c'd him because he passed capacity questions, then was readmitted 2 hours later (and subsequently made involuntary as he declined admission) when he was found wandering barefoot in the middle of the street, unable to actually follow through with safety plans he'd stated.

 

[whopper]

Wait, so the staff told the guy he was getting into Heaven by signing? As in where dead people who were good go? I've never heard that aspect of the case before, but the ruling makes a lot more sense with that context.

Yep. Anyone off-hand know the case? I used to have it memorized but haven't had to need to reference it in years. It's an AAPL landmark case. As wrong as the hospital staff were I see this type of thing happening all the time like I said above, just not specific to going to Heaven.

 

[michaelrack]

The worry is that you sign in someone completely psychotic on a voluntary status and then the next day they demand to leave, refuse meds, etc. Some of my attendings used to tell me that this "looks bad" at the commitment hearing because it's evidence that you thought the patient was with it enough to agree to treatment.

This is highly dependent on state law/county practices. IN Shelby County, TN, it would not look bad at a commitment hearing.

 

[michaelrack]

. After you drop the involuntary, it's hard to justify filing again on someone who is still psychotic,

Agree, but sometimes necessary, and that does look bad at a commitment hearing (at least in my county)

 

[FlowRate]

The situation you mentioned has actually happened to me. Patient admitted involuntarily and extremely psychotic. Was generally cooperative (though mostly non-verbal) for several days and involuntary was dropped and he was allowed to stay voluntarily as he was taking medications willingly (this was on a Friday). I come on as the resident on call Saturday and patient walks up to the front desk like nothing was wrong and asked to leave. After you drop the involuntary, it's hard to justify filing again on someone who is still psychotic, which is why I'm curious if people actually follow through with court dates on these people.

In my situation, we d/c'd him because he passed capacity questions, then was readmitted 2 hours later (and subsequently made involuntary as he declined admission) when he was found wandering barefoot in the middle of the street, unable to actually follow through with safety plans he'd stated.

In MA we would not have gone through the whole discharge and readmit thing, I forget the exact mechanism but it effectively leads to putting the pt back on involuntary status.

 

[Stagg737]

In MA we would not have gone through the whole discharge and readmit thing, I forget the exact mechanism but it effectively leads to putting the pt back on involuntary status.

We were never intending to readmit him or discharge him in the first place though. He was taken off involuntary and when he asked to leave he no longer met criteria for a hold. He was brought back several hours later at which time we placed him on a hold based on inability to care for self as demonstrated through actions, despite still being able to adequately verbalize a plan (however could not tell us why he did not follow through with previously stated plan). If he met criteria to be placed back on involuntary then we would have done that without discharging him in the first place (even if it had looked bad). I’m just curious about if you would take a patient Without capacity to court for a hold even if they were “voluntary” initially. I may be talking myself in circles though.

In this situation, we probably could have reinstated the hold and kept him, but it almost certainly would not have held up in court. When we readmitted and went to court, it held up because he proved that he could not follow through on his statements. Was a huge learning case for me.

 

[michaelrack]

I’m just curious about if you would take a patient Without capacity to court for a hold even if they were “voluntary” initially. I may be talking myself in circles though.

I would.... in my state involuntary just requires mental illness and dangerousness
. . Not capacity

 

[FlowRate]

I’m just curious about if you would take a patient Without capacity to court for a hold even if they were “voluntary” initially.

Yes, it happened not infrequently because not everyone was as principled about placing people on CV initially. There's also the whole patient initially agrees to sign in then we dance around 3-day notices and retractions for a couple of weeks and then the patient starts insisting to leave but is still thought to be a significant danger to self for some specific reason.

 

[clausewitz2]

Agree, but sometimes necessary, and that does look bad at a commitment hearing (at least in my county)

In my state this would be a huge problem. Once you use a particular set of facts as grounds for an involuntary commitment that has expired.or been rescinded, you cannot use them again for an involuntary commitment petition. So if you let someone convert to voluntary and later want to keep them from leaving, you basically need dramatically new information about what was going on previously you did not have access to or they better have done something concerning while inpatient. Otherwise you are SOL.

 

[adaptation1]

In my state this would be a huge problem. Once you use a particular set of facts as grounds for an involuntary commitment that has expired.or been rescinded, you cannot use them again for an involuntary commitment petition. So if you let someone convert to voluntary and later want to keep them from leaving, you basically need dramatically new information about what was going on previously you did not have access to or they better have done something concerning while inpatient. Otherwise you are SOL.

Do people convert to voluntary often in your institutions? That wasn't common practice where I trained at all.

 

[Celexa]

This thread is mainly demonstrating to me that involuntary commitment practices are a hyperlocal phenomenon highly dependent on the character of the local courts that can vary WILDLY even within states with the exact same letter of the law.

 

[clausewitz2]

Do people convert to voluntary often in your institutions? That wasn't common practice where I trained at all.

This was very attending and unit specific. The chronic psychosis unit, not so much. The dual diagnosis/substance abuse unit? Almost everyone got offered a voluntary the morning after they admitted when they were properly sober.

 

[Merovinge]

This thread is mainly demonstrating to me that involuntary commitment practices are a hyperlocal phenomenon highly dependent on the character of the local courts that can vary WILDLY even within states with the exact same letter of the law.

For folks who do this on a semi-regular basis, you get to know the court system and judges pretty quickly and the feedback loop on this is completely different than medicine. The court either rules in your favor or does not. Even the most stalwart patient attorney's will usually provide some feedback if they have concerns about the case versus what they actually argue when court is in session.

 

[splik]

Yep. Anyone off-hand know the case? I used to have it memorized but haven't had to need to reference it in years. It's an AAPL landmark case. As wrong as the hospital staff were I see this type of thing happening all the time like I said above, just not specific to going to Heaven.

Zinermon v Burch

 

[comp1]

Hyperlocal is right. The laws of your state and the practices of the other services in your hospital are going to determine how this goes. Personally, based on my laws and situation, I need a patient to be able to understand that the admission is for observation and to be able to commit to at least 24 hours of such observation. They need to understand that psychiatric units are not hotels or even med/surg beds and that there will be loud noises, agitated peers and food that may not be the quality they are accustomed to. They won't have access to their phones, computers or even always be able to pick what's on TV (see hyperlocal). I also lay out the limitations of inpatient care in terms of personal counseling and the relative simplicity of group activities. If they aren't able to express an understanding of the above, a voluntary inpatient admission could be dangerous and the patient should be assessed for whether they meet an involuntary criteria or would be better served at a different level of care. Again, the specifics are hyperlocal, but inpatient admission should never be viewed as a purely benign intervention, any more than a surgery.

 

[Merovinge]

Hyperlocal is right. The laws of your state and the practices of the other services in your hospital are going to determine how this goes. Personally, based on my laws and situation, I need a patient to be able to understand that the admission is for observation and to be able to commit to at least 24 hours of such observation. They need to understand that psychiatric units are not hotels or even med/surg beds and that there will be loud noises, agitated peers and food that may not be the quality they are accustomed to. They won't have access to their phones, computers or even always be able to pick what's on TV (see hyperlocal). I also lay out the limitations of inpatient care in terms of personal counseling and the relative simplicity of group activities. If they aren't able to express an understanding of the above, a voluntary inpatient admission could be dangerous and the patient should be assessed for whether they meet an involuntary criteria or would be better served at a different level of care. Again, the specifics are hyperlocal, but inpatient admission should never be viewed as a purely benign intervention, any more than a surgery.

I generally agree but think comparing to medical floor hospitalization is a much better comparison. There are certainly increased risks of infection and death from being on a medical floor just like there is some risk inherent to a psychiatric hospitalization but it's pretty disingenuous to compare it to the risks of most invasive surgeries.