Uncooperative with capacity consult

[Madden007]

Had a patient awhile back from the medical floors. Middle age woman with history of bipolar illness, some personality disorder, cocaine use, and about 34 weeks pregnant who was on the medical floors giving them a hard time [demanding, cursing out nurses, and basically trying their patience]. She was on the floor for treatment of some gallstone issue that was non emergent but needed IV antibiotics in the hospital. They felt that it was a bad decision to leave without completing the course of antibiotics. I went to evaluate the patient but she was just rude and impatient. I really could not do the full capacity consult, but the anxious OB team was breathing down my neck to inform them whether this patient had capacity or not---really, I suspect they wanted permission to discharge her and devoid themselves of any bad outcome. Just by eye-balling the patient for 5 minute I could tell that she probably had capacity. I told them that I could not do a capacity exam cause the patient is uncooperative.

How do you deal with responding to these anxious, and sometimes overpowering, doctors who are pressing you for an answer. Can you just tell them that you were unable to complete a capacity consult? Does it mean the patient lacks capacity? Then why would be the next step? Allow her to leave? Restraint her? I am curious what others think.

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[Fan_of_Meehl]

Had a patient awhile back from the medical floors. Middle age woman with history of bipolar illness, some personality disorder, cocaine use, and about 34 weeks pregnant who was on the medical floors giving them a hard time [demanding, cursing out nurses, and basically trying their patience]. She was on the floor for treatment of some gallstone issue that was non emergent but needed IV antibiotics in the hospital. They felt that it was a bad decision to leave without completing the course of antibiotics. I went to evaluate the patient but she was just rude and impatient. I really could not do the full capacity consult, but the anxious OB team was breathing down my neck to inform them whether this patient had capacity or not---really, I suspect they wanted permission to discharge her and devoid themselves of any bad outcome. Just by eye-balling the patient for 5 minute I could tell that she probably had capacity. I told them that I could not do a capacity exam cause the patient is uncooperative.

How do you deal with responding to these anxious, and sometimes overpowering, doctors who are pressing you for an answer. Can you just tell them that you were unable to complete a capacity consult? Does it mean the patient lacks capacity? Then why would be the next step? Allow her to leave? Restraint her? I am curious what others think.

I may not be able to tell you the 'truth.' But I can at least not lie.

 

[Fan_of_Meehl]

Any willing participation in any process that you know, deep down, is untrue warps your damn soul. That is the whole dilemma in being a VA practitioner. You fight because you want to defend your damn soul, lol.

 

[Bartelby]

Especially in the situation you describe (a likely competent patient who just will not cooperate), I tell the patient plainly that the team has sent me to make sure they understand the decision and that we have to make sure of that before they can go. I tell them that if they will cooperate for just five minutes and demonstrate that they understand the decision they are making, then I can leave them alone to carry out their wishes. I then ask basic questions about the decision they are making, and if they demonstrate understanding I tell the team that they have capacity. As per my promise, I ask if they are refusing the rest of the evaluation and (if so) just document that. I typically will ask about suicidal thoughts or thoughts of harming others, but in a situation like you describe it seems there is little reason to suspect imminent risk.

This approach typically gets me in and out in 5-10 minutes, with a brief note and a happy consulting team. It has not failed me yet. If it did, I would have to look at the bigger picture and, if there is reason to doubt capacity, declare that they have not demonstrated decision making capacity.

 

[Fan_of_Meehl]

Especially in the situation you describe (a likely competent patient who just will not cooperate), I tell the patient plainly that the team has sent me to make sure they understand the decision and that we have to make sure of that before they can go. I tell them that if they will cooperate for just five minutes and demonstrate that they understand the decision they are making, then I can leave them alone to carry out their wishes. I then ask basic questions about the decision they are making, and if they demonstrate understanding I tell the team that they have capacity. As per my promise, I ask if they are refusing the rest of the evaluation and (if so) just document that. I typically will ask about suicidal thoughts or thoughts of harming others, but in a situation like you describe it seems there is little reason to suspect imminent risk.

This approach typically gets me in and out in 5-10 minutes, with a brief note and a happy consulting team. It has not failed me yet. If it did, I would have to look at the bigger picture and, if there is reason to doubt capacity, declare that they have not demonstrated decision making capacity.

Hell...at least you're struggling with it. That is more than most can say.

 

[Crayola227]

Especially in the situation you describe (a likely competent patient who just will not cooperate), I tell the patient plainly that the team has sent me to make sure they understand the decision and that we have to make sure of that before they can go. I tell them that if they will cooperate for just five minutes and demonstrate that they understand the decision they are making, then I can leave them alone to carry out their wishes. I then ask basic questions about the decision they are making, and if they demonstrate understanding I tell the team that they have capacity. As per my promise, I ask if they are refusing the rest of the evaluation and (if so) just document that. I typically will ask about suicidal thoughts or thoughts of harming others, but in a situation like you describe it seems there is little reason to suspect imminent risk.

This approach typically gets me in and out in 5-10 minutes, with a brief note and a happy consulting team. It has not failed me yet. If it did, I would have to look at the bigger picture and, if there is reason to doubt capacity, declare that they have not demonstrated decision making capacity.

^
This. It's amazing how "cooperative" people will get when they think it's about getting them what *they* want, not what their doctors want (despite the fact that usually what we want for them is scientifically speaking usually on the side of things they want, like a healthy baby or something. But their way or the highway, I guess, for some.)

A lot of people seem a lot more amenable to doing what it takes to get out of the hospital, at the cost of their own health, rather than stay in it.

Sometimes I have to make the argument that the investment of a little patience will actually help them get out and stay out. That I don't want them in the hospital anymore than they do, frankly.

Anyway, d/c is so many times the golden carrot.

 

[Fan_of_Meehl]

People tend to be complicated and not fundamentally evil.

 

[Fan_of_Meehl]

If people were fundamentally evil (and capable in execution of evil), then the world would be much more interesting and open as a target for good people. Target rich? Evil? Nah, we are generally complacent.

 

[whopper]

Legally the definition of capacity requires the person be able to communicate it. Now this is kind of screwy cause what if the person really does understand but say they're mute and aren't given paper and pen?

If the person's just being a total a$$hole it could've been your approach (I'm not saying it is, cause I've dealt with plenty when I know I did nothing wrong).

Now if you want to be an a$$hole too but do so within what's legally okay you could tell the person you have limited time, if they can communicate they need to do so NOW!, and if not you are within your power to make a judgment based on limited information. (I don't find this appropriate but within the written law it only requires over 50% certainty).

You could go half-way (which I think is the better thing to do), and say the same thing above in very nice words, and add in that you are not trying to harm the patient but that because there's limited time, and other patients in need you are trying to do your best, but they really need to answer you in a timely manner. (I still don't find this appropriate although it's the better thing to do).

If the person doesn't communicate with you, they likely do have capacity, because when someone is known to be able to communicate (that's what I'm interpreting from your post) but not do so they're usually choosing not to communicate. IMHO one could say based on that you have enough reasonable medical opinion to say they have capacity though I do not like this answer nor would I settle for this.

In a type of situation where the consent of the patient is needed and the medical situation is serious, and they're not communicating based on what we think is their voluntary choice, you could then get collateral, e.g. their labs, their interactions with others, and if it's enough data (e.g. being in the hospital for 3 days with no other signs of cognitive deficits, history of such, labs within normal range, no problems with communicating) then it goes from over 50% to way way way over 50% they can but choose not to do so. You can also talk to the hospital lawyer.

With capacity' in the law there's the concept of a graduated level of consent needed. If the patient's situation is life-threatening plus they're unconscious you just save them without consent. If the patient is coherent and the medical situation is not needed you should get consent in a very definitive form. Unfortunately the law never gave many guidelines in a type of stratified criteria for everything in-between.

The doctor who's to provide the treatment (it really needs to be that doctor not you and this is where people asking for psych consults get pissy cause it's supposed to be them, but they expect us to do it) simply tell the patient what's at stake with 3 witnesses present, document that you carefully in detail explained to the patient the risks and benefits and they chose not to communicate thus forcing the treatment provider's hand in treating or not treating. You and the provider could be in the same room together thus provider 2 of the 3 witnesses needed. (Now this is what I would do cause while it fulfills the legal minimum, it also shows you went out of your way to respect the patient and try to very reasonable attempts to get them to communicate).

If you did the above it's pretty solid you went out of your way in trying to get the message across but it was the patient causing the problem.

 

[whopper]

Just wanted to add, on forensic units, a common strategy used by malingerers is to not communicate with the forensic evaluator. The defendant gets the notion that if they keep their mouth shut they don't have to go to court.

No. The the court can proceed based on opinion from an expert-witness based on "opinion within reasonable medical certainty" which basically means someone with health training who have over 50% certainty.

So for example in a case where a guy is talking, making jokes, (we have several witnesses verifying it), his room is clean, clothes folded in neat order, he's a baby daddy with multiple baby mommas, he's keeping track of his money, he's able to order items on the phone and has his credit card number memorized, but each time I tried to talk to him he refused to talk to me......
It was easy convincing the court he had capacity, just that he was refusing to talk to me not due to medical reasons but due to legal strategy.

But you should document and state you made sincere attempts to communicate with the person. E.g. I attempted to talk to him on 3 separate occasions on differing days, I viewed his behavior from afar for over 5 hours, I inspected his room, got collateral from friends and family, etc.

In that particular case he was even refusing to talk to his public defender. The public defender subpeona'd me to show up in court and explain myself cause he was at his wit's end in defending this guy and wanted him declared incompetent.

 

[FlowRate]

You should reframe the question in this situation. The patient is medically stable and not emergently ill. They have no right to hold her in the hospital. If they think she is in dire straights and would go for emergency guardianship to force interventions against the patient's will, then assessing capacity to leave AMA is worthwhile. You would document that you were not able to assess the patient's capacity or that the patient did not demonstrate capacity on your exam but a lack of capacity does not give the team the right to violate the patient's autonomy.

 

[Onions]

What I have been taught (and this makes sense to me) is that a patient who refuses to participate in the assessment of his capacity to make some decision, inherently lacks the capacity to make that decision. The thinking is that such a refusal represents sufficiently poor judgement as to imply incapacity. This can be nerve-wracking for the medical teams, at times, because you end up telling them that yes, they can force something on their patient, who is not blatantly thought disordered, altered, cognitively impaired, or any other form of gross crazy. Obviously, you want to make a thorough effort to induce the patient's cooperation (by explaining your role, aligning your motives with the patients, etc) before you come to this conclusion.

I think about it this way: when I'm tired, hungry, stressed, and in a bad mood, that may not be a good time to break up with a significant other, or quit a job, or make any number of potentially serious decisions. Better to eat something, get some rest, relax, and then make these sorts of decisions when I feel clearer-headed. So the same goes for hospitalized patients, who, as a population, endure elevated level of stress, worry, fear, physical/emotional exhaustion, etc, as compared to non-hospitalized people.

I was asked to assess a middle-aged man for his capacity to refuse CVVHD in the setting of increasing O2 requirements due to fluid overload. When I went to speak with him, he did not come across as any of the aforementioned types of crazy. But he absolutely would not talk to me, and only repeatedly demanded that I go away, just as he had allegedly been telling everyone else who tried to talk to him. The most he would give me was that he didn't want to do the CVVHD because it makes him feel sick and he's tired of it. Repeated and various attempts to explain my purpose in seeing him were met with the same demands that I leave him alone. This man had obviously been through a rough and rocky hospitalization, he had been poked and prodded, his body thrown and tattered by liver and kidney failure, and incessant fumbles over the brink for weeks. He was just generally sick and tired of it all. My impression was that he was in no position to bear the burden of making a decision about something this grave. The MICU team caring for him were uncomfortable with this finding, but we have to do what is right, not what 'feels' right.

 

[whopper]

They have no right to hold her in the hospital. If they think she is in dire straights and would go for emergency guardianship to force interventions against the patient's will,

An assumption on my part but if the patient needs IV antibiotics the consequences of not getting that treatment would likely be severe if not fatal. Further, legally, ethically, but also media-wise you let a pregnant woman go who ends up dead days to weeks later cause you didn't treat them isn't going to exactly going to make you look good.

Also another factor is if you go for court-ordered treatment that process can take several days if not even weeks. I've done that thing dozens of times. We had patients whose personal safety was in question and it might not get to court for weeks.

 

[FlowRate]

An assumption on my part but if the patient needs IV antibiotics the consequences of not getting that treatment would likely be severe if not fatal. Further, legally, ethically, but also media-wise you let a pregnant woman go who ends up dead days to weeks later cause you didn't treat them isn't going to exactly going to make you look good.

Also another factor is if you go for court-ordered treatment that process can take several days if not even weeks. I've done that thing dozens of times. We had patients whose personal safety was in question and it might not get to court for weeks.

non emergent but needed IV antibiotics in the hospital

This usually means "ideally should receive IV antibiotics in the hospital but may be able to make due with PO, could potentially get infusions at their PCP, and will not likely die from their illness for at least several days after discharge." The non-emergent part is important.

I agree that if it's EMERGENT and the patient lacks capacity, then you have to activate a proxy and treat according to the proxy's best estimate of how they would want to be treated. Also the emergent-but-refusing-without-capacity thing usually fixes itself by the patient becoming unconscious...

 

[whopper]

a patient who refuses to participate in the assessment of his capacity to make some decision, inherently lacks the capacity to make that decision.

Not necessarily. There is an actual legal definition this sentence doesn't meet the legal definition. I'm pointing this out only cause the law is so dependent on the wording.

The definition is they lack the ability to understand and/or they cannot communicate that understanding.

As I mentioned above in situations that are emergent your ability and time to try to communicate are limited and for this reason the law gives leeway. Someone comes in unconscious, they're bleeding to death, they have minutes of life left, you can do the blood transfusion without getting their consent.

But in a situation where you have the time to communicate with the patient, you are supposed to give them that time. If the patient is communicating coherently otherwise (and I don't know how coherently he was in your case cause asking to be left alone isn't as cognitively-engaging as debating quantum mechanics) but won't when you try to talk to them it strongly suggests they are refusing to communicate but have the ability to do so, IMHO the capacity is still up in the air.

I had a patient who required surgery on her leg and if she didn't do so was suffering a high risk of permanent consequences (I forgot what they were but it was on the order of possible death or loss of limb). She refused to answer questions when asked if she understood, but wanted to be sent to a long term facility (not cause she needed to be there, but because she used to be there for years and simply wanted to live there for the rest of her life). Whenever the surgeon or I talked to her she just would say something to the effect of "I'm not going to answer your questions unless you send me to X hospital."

I was a resident at the time and had a weak attending working on it. (He let all transfer requests go to the psych unit when it was blatantly obvious they weren't medically stable). I called the hospital lawyer and after hammering all the details, dragging this consult to 3 days, getting lots of collateral including her hospital chart from the long-term hospital that was literally years in length (and I remember to this day that attending wasn't doing jack nor seemed concerned with his lack of understanding on the legal issues. When I became a chief the attendings told me he was a resident at the same program and one of the worst ones ever), we determined she had capacity. The surgeon was ticked off cause she was taking up a bed in the surgery unit without actually getting a surgery and told us he was more than happy to discharge her even if she lost her leg (telling us so in a very macho and ticked-off manner), and the moment before discharge she changed her mind and decided to get the surgery which only caused the surgeon to get even more upset. (Turned out she discharged her almost immediately after the surgery. What happened there I'm not sure. I don't know if the patient wanted out early or if the surgeon was acting out of anger).

It turned out this lady had a very strong cluster B disorder, but was hospitalized for years and given high dosages of antipsychotics and misdiagnosed as Bipolar Disorder which only added to the frustration cause had we discharged her and had she suffered a bad consequence and there was legal action taken the record could support a false argument that she suffered from a severe Axis I and should've been found to lack capacity. Not the first or last time that happened.

(I hate consults, cause in all the hospitals where I did them it was more of a baby-sitting thing than an actual meeting of medical minds).

 

[Merely]

What I have been taught (and this makes sense to me) is that a patient who refuses to participate in the assessment of his capacity to make some decision, inherently lacks the capacity to make that decision. The thinking is that such a refusal represents sufficiently poor judgement as to imply incapacity. This can be nerve-wracking for the medical teams, at times, because you end up telling them that yes, they can force something on their patient, who is not blatantly thought disordered, altered, cognitively impaired, or any other form of gross crazy. Obviously, you want to make a thorough effort to induce the patient's cooperation (by explaining your role, aligning your motives with the patients, etc) before you come to this conclusion.

I think about it this way: when I'm tired, hungry, stressed, and in a bad mood, that may not be a good time to break up with a significant other, or quit a job, or make any number of potentially serious decisions. Better to eat something, get some rest, relax, and then make these sorts of decisions when I feel clearer-headed. So the same goes for hospitalized patients, who, as a population, endure elevated level of stress, worry, fear, physical/emotional exhaustion, etc, as compared to non-hospitalized people.

I was asked to assess a middle-aged man for his capacity to refuse CVVHD in the setting of increasing O2 requirements due to fluid overload. When I went to speak with him, he did not come across as any of the aforementioned types of crazy. But he absolutely would not talk to me, and only repeatedly demanded that I go away, just as he had allegedly been telling everyone else who tried to talk to him. The most he would give me was that he didn't want to do the CVVHD because it makes him feel sick and he's tired of it. Repeated and various attempts to explain my purpose in seeing him were met with the same demands that I leave him alone. This man had obviously been through a rough and rocky hospitalization, he had been poked and prodded, his body thrown and tattered by liver and kidney failure, and incessant fumbles over the brink for weeks. He was just generally sick and tired of it all. My impression was that he was in no position to bear the burden of making a decision about something this grave. The MICU team caring for him were uncomfortable with this finding, but we have to do what is right, not what 'feels' right.

Aren’t you violating patient autonomy by inferring the patient lacks capacity simply because he doesn’t want to speak with you?

 

[whopper]

I'm not saying this in reference to Onion's post but I've found the consult process so so so wrong in so many institutions.

E.g. it's supposed to be the physician who needs to perform the treatment that's supposed to explain the risks/benefits and alternative treatments. This was established in the law. Case law specifically says the treating doctor must explain what is going on to the patient, risks, benefits, and their alternative choices. (Of course exceptions are if the patient lacks capacity). Since it is the other doctor who is the treating doctor, and their expertise outweighs yours, and they have that treatment responsibility to impart the information it is supposed to be THEM not you.

What I so often find is the physician wants to do the thing (e.g. surgery) doesn't explain it to the patient, then I go to the patient and there's no documentation the treating doctor explained anything and the patient is telling me NOTHING was told to them as to the risks and benefits and alternatives.

So here's what I think should happen in such a case.
My response: "I cannot proceed on this consult until you explain the risks, benefits, alternatives, and consequences of lack of treating. This is something that needs to be done by you, the treating physician, as defined by case-law. and not by me the consulting psychiatrist wasn't told your thought-process in recommending the treatment and whose expertise in surgery likely does not match yours.

Respectfully,
Dr. Whopper"

But what really happened was the other department expected me to sit there and explain the risks and benefits and why the consult-ordering doctor wanted to do it even though I didn't know the specifics of that (heck sometimes I thought the treatment the ordering doctor was doing wasn't the best one!) Then the attending that was working with me didn't seem to understand that it is the treating doctor, not us, that's supposed to detail the risks/benefits/alternatives and would go along with this faulty line of reasoning expecting the resident to do all the work while they went back to the doctor's lounge to sit on their ass and watch The Price is Right.

Another idiotic issue I typically got is the patient is on an antidepressant, has been for years, and is perfectly stable on it without any depression or anxiety. So they come in for whatever reason, e.g they need their tonsils removed, and the doctor requests a consult only cause they're on an antidepressant.

What should've been the solution was the psych department should've provided guidelines on minimum requirements of what should be done before a consult is ordered, but the attendings didn't care cause it was the residents doing all the real work, and the residents wouldn't bring this up cause they were too scared to rock the boat.

Last job I had where the situation was reversed (I was the attending) I brought this issue up the doctor above me blew me off, I was an assistant professor and he was an associate professor, I was outranked (another reason why I left that job). A former dept head told all of us, "you have the right to complain so long as you offer a solution and are willing to work to that solution." I told the professor above me I would commit myself to meeting with all the departments and write the guidelines myself. Nope still got blown off.

One last rant. I did my residency in New Jersey and my last year there the state passed a law requiring the Edinburgh Depression Scale for all women in the L&D unit. OK I get it, but here's what happened. A large portion of population in NJ only speaks Spanish. The nurses who didn't speak Spanish didn't want to deal with translators because doing so slows them down so when the Spanish speaking women were given the Edinburgh Scale, in English, they were specifically told to circle the answers that pointed to them as suicidal. I'm serious thus forcing the psych resident go to L&D where the nurse literally expected us to do the same test over again in Spanish using a translator.

So after I figured this out, and with multiple sources confirming this such as the patient, their families, other nurses on the the unit, the unit's social worker, and after seeing the psych attending not doing anything to stop it, I called up the head of the dept, told her what was going on and asked her to make a policy where if we had evidence to point out this was going on to refuse the consult, require the nurse on L&D to offer the Edinburdgh test in the appropriate language, use a translator, this all had to be documented, but until then we weren't going to see the consult. Well in that case it worked. The dept head agreed with me. From that day onwards, about 5x a week I was called and told by the resident this was going on but the attending still wanted them to do the consult and I told them to put the attending on the line and I told the attending the order came straight from the top.....don't do the consult. Kind of felt good telling some attendings this after I had to do their clean-up work for 3 years.

From my personal experience more than 50% of consults requested to psych were along these lines of BS.

 

[HIPAAHasOneP]

What I have been taught (and this makes sense to me) is that a patient who refuses to participate in the assessment of his capacity to make some decision, inherently lacks the capacity to make that decision.

I've always wondered what happens if the patient is a scientologist. You couldn't assume that they are refusing to cooperate because they lack capacity. They could be refusing to cooperate because they don't believe in psychiatry. What happens with those patients?

 

[FlowRate]

What I have been taught (and this makes sense to me) is that a patient who refuses to participate in the assessment of his capacity to make some decision, inherently lacks the capacity to make that decision.

Only if you mean that they've refused to talk to anyone (including the primary team.) Psychiatric consultation is not necessary to the determination of capacity, as it is the duty of all physicians to be able to assess their patients' capacity.

 

[HIPAAHasOneP]

Aren’t you violating patient autonomy by inferring the patient lacks capacity simply because he doesn’t want to speak with you?

Exactly. I can think of a few reasons why a patient might not wish to cooperate that have nothing to do with lacking capacity. Maybe they are just sick of the whole thing and tired of talking about it.

 

[birchswing]

I've always wondered what happens if the patient is a scientologist. You couldn't assume that they are refusing to cooperate because they lack capacity. They could be refusing to cooperate because they don't believe in psychiatry. What happens with those patients?

I believe some may sign an advanced directive indicating refusal of psychiatric treatment. Also, if they are on staff or in the sea org, they are probably being "handled" internally and not even subject to enter a medical facility where they would be left alone without a "minder" for lack of a better term. The public members wouldn't be in the same situation necessarily. Staff and sea org=low-paid labor. Public=money source.

I've always been curious how they view any operation requiring anesthesia (like surgery). The distinction between psych meds and anesthetics is fairly semantic, as they overlap and both affect human behavior.

Mind Freedom (not related to scientology) has something called MindFreedom Shield is some sort of program to help others affiliated with the organization have representatives help refuse involuntary psychiatric treatment, as well as encourages signing advanced directives.

 

[Salpingo]

Had a patient awhile back from the medical floors. Middle age woman with history of bipolar illness, some personality disorder, cocaine use, and about 34 weeks pregnant who was on the medical floors giving them a hard time [demanding, cursing out nurses, and basically trying their patience]. She was on the floor for treatment of some gallstone issue that was non emergent but needed IV antibiotics in the hospital. They felt that it was a bad decision to leave without completing the course of antibiotics. I went to evaluate the patient but she was just rude and impatient. I really could not do the full capacity consult, but the anxious OB team was breathing down my neck to inform them whether this patient had capacity or not---really, I suspect they wanted permission to discharge her and devoid themselves of any bad outcome. Just by eye-balling the patient for 5 minute I could tell that she probably had capacity. I told them that I could not do a capacity exam cause the patient is uncooperative.

How do you deal with responding to these anxious, and sometimes overpowering, doctors who are pressing you for an answer. Can you just tell them that you were unable to complete a capacity consult? Does it mean the patient lacks capacity? Then why would be the next step? Allow her to leave? Restraint her? I am curious what others think.

Patient does not demonstrate capacity to decide ______.

Reason they cannot demonstrate capacity is multifactorial, but includes recent history of substance use and possible personality disorder (I would cite collateral you've obtained from outside sources demonstrating a lifetime of impulsivity, inability to form consistent relationships/work, etc). No evidence of acute mania or psychosis based on _______.

With reasonable medical certainty, there are no acute interventions to allow patient to demonstrate capacity -- this condition requires longterm therapy and formation of therapeutic rapport. Would continue to set clear but impartial boundaries and expectation of hospitalization, consider bringing in support or provider she has demonstrated good relationship with.

I would commiserate with the primary team, tell them that patients have the right to make bad decisions.



As an aside (not necessarily to document, but to consider) -- the fact that she's not just going with the flow to demonstrate capacity and leave (the easiest route) suggests some ambivalence, that she realizes it is a bad idea to leave the hospital but has dug herself into the situation she can't get herself out of (cut her nose to spite her face, so to speak).

 

[WisNeuro]

What I have been taught (and this makes sense to me) is that a patient who refuses to participate in the assessment of his capacity to make some decision, inherently lacks the capacity to make that decision.

I'll join with others, this is inaccurate, both ethically, and legally (at least in most states). For most capacities (there are like a dozen or so), the assumption is that a person has capacity unless they have demonstrated in some way that they DO NOT have it. Many states have legal statutes that spell this out, for some capacity issues anyway (usually for legal things like testamentary and changing of wills, etc). If you used what you have been taught and were challenged in court after documenting just that, I would expect an admonishment and a direction to read over methods of capacity assessment. There are some great resources online, especially for capacity assessment in the elderly (for providers).

 

[futuredo32]

From my personal experience more than 50% of consults requested to psych were along these lines of BS.

YES

 

[Georgit]

I've always wondered what happens if the patient is a scientologist. You couldn't assume that they are refusing to cooperate because they lack capacity. They could be refusing to cooperate because they don't believe in psychiatry. What happens with those patients?

To have no trust in a branch of Medicine does not mean incapacity.
But if you have capacity, you should able to just say no

 

[whopper]

Exactly. I can think of a few reasons why a patient might not wish to cooperate that have nothing to do with lacking capacity. Maybe they are just sick of the whole thing and tired of talking about it.

While doing inpatient by the time I saw the patient for the first time for an H&P they already gave all of the information an H&P would've answered to 1-the ER intake nurse, 2-the ER doctor, 3-the inpatient psych intake nurse, and then me.

So a lot of them were ticked off that I had to ask the same things all over again. Many asked why we were doing something so stupid.
And you know what? I agreed with the patient!

 

[thoffen]

You should reframe the question in this situation. The patient is medically stable and not emergently ill. They have no right to hold her in the hospital. If they think she is in dire straights and would go for emergency guardianship to force interventions against the patient's will, then assessing capacity to leave AMA is worthwhile. You would document that you were not able to assess the patient's capacity or that the patient did not demonstrate capacity on your exam but a lack of capacity does not give the team the right to violate the patient's autonomy.

More or less this. In my view, the patient does lack capacity if they won't let you assess them, and you can be very explicit with them about what it means is they refuse the examination. And yet that doesn't mean the right decision is to violate their autonomy. That depends on the clinical scenario and may require an ethics consult.

 

[whopper]

I've only had 1 Scientologist and she wasn't one that took the faith very seriously.

You just do it like you'd do a Jehovah's Witness patient with a surgery. You tell them of the risks and benefits and if they don't want to take a psychotropic med that's their choice.

While Scientology has done some incredibly terrible things against psychiatry many people in it are just curious and low-level. E.g. they just picked up a Dianetics book, read some of it, and are further curious.

 

[HIPAAHasOneP]

While doing inpatient by the time I saw the patient for the first time for an H&P they already gave all of the information an H&P would've answered to 1-the ER intake nurse, 2-the ER doctor, 3-the inpatient psych intake nurse, and then me.

So a lot of them were ticked off that I had to ask the same things all over again. Many asked why we were doing something so stupid.
And you know what? I agreed with the patient!

While doing inpatient by the time I saw the patient for the first time for an H&P they already gave all of the information an H&P would've answered to 1-the ER intake nurse, 2-the ER doctor, 3-the inpatient psych intake nurse, and then me.

So a lot of them were ticked off that I had to ask the same things all over again. Many asked why we were doing something so stupid.
And you know what? I agreed with the patient!

Yeah, having worked in teaching hospitals for years it's not uncommon to see patients to get frustrated at being asked the same things over and over again. Years ago I was hospitalized and after being asked the same thing for the 5th time I snapped at a physician. It was very unlike me to be impolite to authority, but I had had it. I had no concept at that age that I was in a teaching hospital or what that meant. All I knew is that it seemed like they had a communication problem. To the physician's credit he took it in stride. I can empathize with patients who get sick of talking especially when they feel that people aren't listening to what they say.

 

[WisNeuro]

More or less this. In my view, the patient does lack capacity if they won't let you assess them, and you can be very explicit with them about what it means is they refuse the examination. And yet that doesn't mean the right decision is to violate their autonomy. That depends on the clinical scenario and may require an ethics consult.

The courts do not see it this way.

 

[thoffen]

The courts do not see it this way.

Well, I think I should moderate my statement, although I also think that saying it is inaccurate altogether is also wrong. From what I gather:
1. specific statutes are at the state level, so it's hard to make general statements
2. capacity evaluation in this case is specific to a particular intervention at a particular time
3. yes it's true that common law dictates a person has capacity until they demonstrate otherwise
4. refusing recommended medical care while being given opportunity to receive information about a medical decision and to communicate a choice including understanding and appreciation of the risks/benefits of the intervention/refusal and using logic to do so is demonstration that they lack capacity for that particular decision in that moment

#4 is what drives my statement, but it does assume that there has been adequate attempt at communicating the foundation for making the decision to the patient and removing barriers to this and adequate opportunity for the patient to express their choice. There may be appropriate reason to refuse psychiatric assessment for capacity determination, so technically saying no is not sufficient, but if the patient is unwilling to cooperate with anyone's assessment without any identifiable barriers to be overcome (e.g. language or cultural barrier), then to my understanding this would constitute evidence that they lack capacity.

All that said, I agree that there may be alternate ways of assessing that a person more likely than not has capacity based on collateral, clinical observations, etc. when there is external reward for refusing evaluation that can be argued in court. Additionally, lacking capacity does not necessarily mean it's the right clinical decision to force care one way or another. That is an ethical one, and altering the standard for judging capacity based on the risk/benefit of the patient's choice is an evidenced based approach.

 

[WisNeuro]

#4 is what drives my statement, but it does assume that there has been adequate attempt at communicating the foundation for making the decision to the patient and removing barriers to this and adequate opportunity for the patient to express their choice. There may be appropriate reason to refuse psychiatric assessment for capacity determination, so technically saying no is not sufficient, but if the patient is unwilling to cooperate with anyone's assessment without any identifiable barriers to be overcome (e.g. language or cultural barrier), then to my understanding this would constitute evidence that they lack capacity.

In most circumstances, yes. But this is an incorrect blanket statement. You need other corroborating evidence to support a claim that they lack capacity. The issue of refusing the assessment is not one of those corroborating pieces of evidence to deem capacity. The only thing I am saying is that if you are going to deem someone to not have capacity to make a medical decision making, you need to document something other than "refused capacity assessment." There are a myriad of reasons that patients will refuse a capacity assessment, while still having capacity. I see it all of the time.

 

[HIPAAHasOneP]

In most circumstances, yes. But this is an incorrect blanket statement. You need other corroborating evidence to support a claim that they lack capacity. The issue of refusing the assessment is not one of those corroborating pieces of evidence to deem capacity. The only thing I am saying is that if you are going to deem someone to not have capacity to make a medical decision making, you need to document something other than "refused capacity assessment." There are a myriad of reasons that patients will refuse a capacity assessment, while still having capacity. I see it all of the time.

I never saw a case where lack of capacity was determined strictly based on failure to cooperate with a capacity assessment, which is a good thing because if I had I would have invoked safe harbor and refused to cooperate as well. As a nurse, I would not have participated in the forced treatment of the patient in Onions example. You would have to give me more than the patient was sick of treatment and uncooperative.

 

[birchswing]

Scientology has done some incredibly terrible things against psychiatry

Is there something they have successfully done to further their anti-psychiatry interests? It mostly seems like shouting into the wind.

 

[WisNeuro]

Is there something they have successfully done to further their anti-psychiatry interests? It mostly seems like shouting into the wind.

Well, Tom Cruise did call Matt Lauer glib once...

 

[PsyDr]

There is an article about when the patient is noncompliant but has capacity. Maybe marson?

 

[whopper]

Is there something they have successfully done to further their anti-psychiatry interests? It mostly seems like shouting into the wind.

Psychiatry: An Industry of Death Museum



Only reason why some people don't seem to know about this is cause whenever they try the antipsychiatry angle it backfires on them, they go silent, then try again a few years later.

 

[HIPAAHasOneP]

What would a physician do if a patient who is a known scientologist is a danger to self or others?

(I'm not a scientologist and don't know any. Just curious about how this issue would be handled).

 

[WisNeuro]

What would a physician do if a patient who is a known scientologist is a danger to self or others?

(I'm not a scientologist and don't know any. Just curious about how this issue would be handled).

Imminence of the situation likely overrides any religious beliefs here. I'd handle it just like any other patient.

 

[michaelrack]

What would a physician do if a patient who is a known scientologist is a danger to self or others?

(I'm not a scientologist and don't know any. Just curious about how this issue would be handled).

Dangerousness is usually handled by civil commitment, rather than through capacity/competency determinations; though there is a little overlap.

 

[Shufflin]

True account. I had a female patient in our partial hospital program who was once a higher-up in scientology and anti-psychiatry like 10 years ago. She now swears in the need and efficacy of psychiatry. She cannot believe she drank the koolaid years ago and said their ways can't help severe depression, mania, psychosis and the like. In fact, she said by not getting proper treatment for many years she got worse and tried to deny it.

Scientology is crapology.

 

[birchswing]

True account. I had a female patient in our partial hospital program who was once a higher-up in scientology and anti-psychiatry like 10 years ago. She now swears in the need and efficacy of psychiatry. She cannot believe she drank the koolaid years ago and said their ways can't help severe depression, mania, psychosis and the like. In fact, she said by not getting proper treatment for many years she got worse and tried to deny it.

Scientology is crapology.

It's a melding of psychoanalysis, hypnosis, eastern religions, multi-level marketing, fantastical cosmologies, cult tactics, and ultimately a fairly sizable real estate holding company.

I think the attention it receives is rather outsized compared to its membership. And I think that attention is for the same reason Hubbard's science fiction books were popular: People love fantastical ideas and secrets and want to turn the page to see what's next. It's like that TV show Lost. They want to believe there really is something in all that mystery and magic. Maybe you know that a person can't create new planets with their mind, but you like thinking about it anyway. Like with a fictional novel, you're given a sense that there is something at the end that will satiate your curiosity. If it were a similarly sized off-shoot of Christianity or Judaism that opposed psychiatry (which in aggregate I would imagine dwarfs the total number of scientologists in existence), I doubt people would even remember the name of the group. Unlike novels or TV shows, you already know the ending to the stories of those religions. Even if you've read the leaked materials on scientology, there's still that aura of mystery. When you watch the most ardent critics, you can see their faces light with glee as they are talking about how ridiculous the 75 quadrillion year galaxy cosmology is. They decry it, but as they do so you can tell they love the story.

This was in the news last year, and maybe some people read it. But I doubt any remember. Because there is nothing fantastical about it:
‘Prophetess’ ruled church with terror

That was just one I picked at random. I could post about the Colorado City, Arizona cult, the Kirjas Joel cult, so many others. They're in plain sight but not nearly as interesting as anything concocted by a bestselling science fiction writer.

 

[Madden007]

There are guidelines to determining capacity [communicate a choice, understand information, appreciate consequence and reason rationally], including sometimes conducting a MMSE, and if possible, talking to family, finding a surrogate decision maker, among other possible helpful things. It's an evaluation. There is no way you can claim that a patient is incapacity because the patient refused the evaluation. No evaluation occurred! However, you can give your impressions based on the patient's behavior, e.g. grossly psychotic and delirious, which suggests incapacity, but use your clinical judgment and tread lightly, especially if no evaluation occurred.

Update:
In this case, I circumvented the entire capacity question by forcing the OB team's hand. Understanding that they just wanted to get rid of this woman and at the same time absolved themselves of medical responsibility, I told them that the inpatient unit is not equipped to handle medical cases i.e. pregnant woman with IV pole and antibiotics is dangerous on the locked unit.

Because I could not evaluate the patient, and if THEY truly believed that the patient lacked capacity, psychiatry would have to treat her on the OB floors, which would most likely involve IM medication for agitation and/or physical restraints [mental image: pregnant woman, restraint to bed, given 5/2s, going berserk]. They wanted no piece of that lol They became more fearful of that possibility. Eventually, they indicated that the patient does not need IV medication, and PO medication--although not ideal--is a viable substitute. She was fine with leaving with PO medication to take. Capacity consult cancelled lol

 

[whopper]

What would a physician do if a patient who is a known scientologist is a danger to self or others?

You can treat someone against their will if it's an immediate danger. E.g. person is assaulting others in an ER you can inject them with Haldol without their consent.

So what if they're in an inpatient unit and not an immediate danger but aren't safe enough for discharge? You'd have to petition the court for involuntary medication if it's appropriate.

I've thought what would I do in such a situation? If the court lets you do it so be it. If not it's not your fault, it's the court, but then the person is trapped in the psych unit without a medical means of improvement, but at least you can say to yourself it's not your fault.

Now if this happens there can be a new precedent setting situation because it's been argued in high courts that you're not supposed to keep someone involuntarily if you're not offering treatment. If the court doesn't allow you to treat you'd have to ask the court then if the patient is supposed to be discharged because no treatment --->no involuntary commitment. So then WTF are you supposed to do if you're not allowed treat the patient but the patient is still dangerous due to mental illness, and they're supposed to not be in there unless they get treatment?

I've thought about the several times while memorizing landmark psychiatric cases cause this has never been fully settled in the law. Hey if it happens to do you, you could be in a landmark case.

It turns out even if the person is of a specific religion that forbids a specific type of treatment, if they have capacity you should ask again based on circumstances. A lot of people all of a sudden get a moment of clarity they didn't have before when the situation is grim. E.g. they might become all of a sudden 50x more religious or much less so, "screw my religion, I'm getting a blood transfusion!" when they realize they can die without one.

 

[michaelrack]

In some states, if a patient is "committed" via civil commitment, the court paperwork specifically authorizes psychiatric meds, This is true in the state of ARkansas

 

[HIPAAHasOneP]

In some states, if a patient is "committed" via civil commitment, the court paperwork specifically authorizes psychiatric meds, This is true in the state of ARkansas

That's interesting. Do you have a psychiatric advance directive in your state? What if a patient had a psych advance directive that only permitted benzos? No antipsychotics, only benzos. If they were under a civil commitment, would the psychiatrist only be able to administer benzos? (I can think of a few patients who would be pleased with that treatment plan).

Thanks to you, Whooper, et al for entertaining my questions. I find these legal issues fascinating.

 

[HIPAAHasOneP]

You can treat someone against their will if it's an immediate danger. E.g. person is assaulting others in an ER you can inject them with Haldol without their consent.

So what if they're in an inpatient unit and not an immediate danger but aren't safe enough for discharge? You'd have to petition the court for involuntary medication if it's appropriate.

I've thought what would I do in such a situation? If the court lets you do it so be it. If not it's not your fault, it's the court, but then the person is trapped in the psych unit without a medical means of improvement, but at least you can say to yourself it's not your fault.

Now if this happens there can be a new precedent setting situation because it's been argued in high courts that you're not supposed to keep someone involuntarily if you're not offering treatment. If the court doesn't allow you to treat you'd have to ask the court then if the patient is supposed to be discharged because no treatment --->no involuntary commitment. So then WTF are you supposed to do if you're not allowed treat the patient but the patient is still dangerous due to mental illness, and they're supposed to not be in there unless they get treatment?

This is exactly the scenario I was wondering about. I would not envy psychiatrists and/or the courts having to make that call. I was thinking about assisted outpatient treatment for a patient who at baseline has religious opposition to psychiatry. I imagine that would be a real mess to sort out.

 

[michaelrack]

That's interesting. Do you have a psychiatric advance directive in your state? What if a patient had a psych advance directive that only permitted benzos? No antipsychotics, only benzos. If they were under a civil commitment, would the psychiatrist only be able to administer benzos? (I can think of a few patients who would be pleased with that treatment plan).

Thanks to you, Whooper, et al for entertaining my questions. I find these legal issues fascinating.

In Arkansas and some other states, treatment against the patients will is authorized by the civil commitment. Advance directive is irrelevant

 

[whopper]

The issue did happen to me once but it defused before I could get into a landmark case.

I had a pathological hoarder and her home was so bad it had to be condemned. She also was a right-wing conspiracy theorist though not to the degree where I could diagnose her as psychotic, and told the authorities if they tried to take her home away she was going to defend herself with guns. She herself was so bad she hadn't washed her hair in years and the oil in her hair polymerized into plastic. Seriously. When she was on my unit her hair had to be washed about 30x before the plastic grit got out of her hair.

What happened was someone from the state very nicely approached her and got her to go to the hospital without a battle. So she was on my unit, and then refused meds.

Now, I MEAN NOW there is data showing that Hoarding can be treated with SSRIs but when this happened a few years ago SSRIs were only suspected of helping hoarding. So while there were articles recommending to treat hoarding with SSRIs there was no actual evidenced-based data of a double-blinded placebo controlled study. A study later came out about 2 years after the incident, but back then there was no data that would meet a legal criteria meeting the Daubert Standard (which in short means an expert witness can only give scientific data if there's real solid data in science journals backing it).
Daubert standard - Wikipedia

So I ran through the scenario with my boss...."WTF do we do if the court commits her but they don't allow us the medicate her?"

I was actually prepping for this case expecting it to be a landmark case cause she had the capacity to refuse the meds but I knew she was going to be involuntarily committed.

What ended up happening was literally about an hour before she went to court she decided to give an SSRI a try. It was kind of a stress-relieving but also buzzkill feeling I had. I prepped myself up for a war and while the troops were on the front line about to fight all of a sudden the call came to walk away.

In any case I did write about this in a legal/psych journal but it's been awhile and I don't even remember the title. What happened was I was writing this article kind of a WTF do we do in this situation article cause I was expecting this case to become serious, wrote the backbone of it then this patient dropped her refusal to try an SSRI after 2 weeks of refusal. The point of the article was that with the then new DSM-V with new disorders, how are we going to get involuntary medication passed in a court when there's no Daubert standard established on treating these new disorders?

Will we be forced to discharge a patient that is dangerous due to mental illness because we're not allowed to treat them? And if we do, then is the court responsible for the consequences?

I cited the legal arguments where involuntary treatment was supposed to then entail treatment. So a judge in a case where this happens will have the burden of finally answering something that has been brought up several times in legal cases but ultimately to this day was never answered.

In Arkansas and some other states, treatment against the patients will is authorized by the civil commitment. Advance directive is irrelevant

I had a guy that likely had tuberculosis that refused treatment in a psych unit where we didn't have the ability to hermitcally separate him from others (remember this is a psych hospital) and the court wouldn't listen to the case for weeks to get involuntary meds for TB.

During the case his public defender vociferously argued that I was overstepping my boundaries on getting this guy forced TB treatment. The judge asked me the dangers of TB and I told them that anyone withing breathing distance of the patient could get TB and this was dangerous.

The public defender freaked out and immediately ran away from the patient-about 50 feet, then continued to rail against me about how I was overstepping my boundaries during my cross examination. The judge told me a few weeks later he had a seriously huge laugh over that case cause the public defender was a former big-wig congressman who likes to hear himself speak.

 

[smalltownpsych]

There are guidelines to determining capacity [communicate a choice, understand information, appreciate consequence and reason rationally], including sometimes conducting a MMSE, and if possible, talking to family, finding a surrogate decision maker, among other possible helpful things. It's an evaluation. There is no way you can claim that a patient is incapacity because the patient refused the evaluation. No evaluation occurred! However, you can give your impressions based on the patient's behavior, e.g. grossly psychotic and delirious, which suggests incapacity, but use your clinical judgment and tread lightly, especially if no evaluation occurred.

Update:
In this case, I circumvented the entire capacity question by forcing the OB team's hand. Understanding that they just wanted to get rid of this woman and at the same time absolved themselves of medical responsibility, I told them that the inpatient unit is not equipped to handle medical cases i.e. pregnant woman with IV pole and antibiotics is dangerous on the locked unit.

Because I could not evaluate the patient, and if THEY truly believed that the patient lacked capacity, psychiatry would have to treat her on the OB floors, which would most likely involve IM medication for agitation and/or physical restraints [mental image: pregnant woman, restraint to bed, given 5/2s, going berserk]. They wanted no piece of that lol They became more fearful of that possibility. Eventually, they indicated that the patient does not need IV medication, and PO medication--although not ideal--is a viable substitute. She was fine with leaving with PO medication to take. Capacity consult cancelled lol

Not surprised at all at this outcome as I have had similar consults. I have had a few patients with a history of sexual trauma who the staff were trying to get to do something they didn't want to do and led to extreme reactions on the part of the patient. When patient is deescalated and a negotiated solution is found then the patient would feel empowered to make their own choice. Sometimes it is tough coming into the situation after everyone is entrenched, but when everyone is calmed down and rational, we end up being the hero. These are good opportunities for that rare public success.