Womans lack capacity but I can't do anything.

[whopper]

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Just a case I recently had that I thought was food for thought. (apologize for the spelling error..."womans")

Elderly patient, in okay physical health (she walks slowly but at her age that's not surprising), no serious over-the top physical medical problems and she's on meds most elderly people are on such as a statin, baby Aspirin, etc, but she can't take care of herself. She can't manage her finances, or really engage in any complex cognitive issues, can't really hold it together in my office, a MOCA test score was 15. She couldn't remember things going that happened minutes before.

Her not being able to take care of herself isn't an immediate issue. She's in an assisted-living facility that prepares her meals, cleans her clothes, provides her structure (work-outs, movie nights, etc).

Her PCP is giving her benzos. I told her they're not recommended especially for someone who might have dementia and I don' think she understands the seriousness of the issue.

So there's no immediate emergency but I don't think she has capacity to decide what meds she wants. I also think she needs a guardian. She has family that I figure are willing to help, after all they're paying for her living facility bills.

So I asked her if I can call her family. She said no.

So now I can't contact them but she also lacks capacity for treatment and wants to continue seeing me.

I can't do anything to break HIPAA unless there's an emergency, and there isn't one. She wants me to see her but I don't think she has capacity, and she doesn't want the benzos she's on (provided by a different doctor) changed, nor will this doctor stop prescribing them. The prior psychiatrist already tried and I have a copy of the letter he wrote too the PCP requesting he stop them. The PCP didn't stop.

So there really isn't anything I can do for her other than repeat she shouldn't be on benzos but she'll just continue to get them from the other doctor and take them.

 

[WisNeuro]

If she weren't in the ALF, I'd suggest contacting APS for self-neglect. The family can takes towards guardianship, which it sounds like they are already kind of acting as, but they should really make it official for expediency when it comes to medical decisions, although contacting them becomes problematic if she refuses. You could call APS anonymously, describe the situation (contraindicated med, patient likely not having capacity for med issues, highly increased chance of morbidity due to meds, etc) and see what they say.

I see this happen often in my referrals (elderly, cog issues, on high dose benzos), I just clearly state that this medication has been shown to significantly increase chances of falls and death and is inappropriate in the case at hand, and alert the primary care to my note. Sometimes, not very often, they actually change the med or taper down. Maybe it's because now there is a clear note in the system that would increase their fault/liability when something happens to that patient in the future, who knows?

 

[whopper]

Yeah that's the problem. She is in an ALF so there's no immediate emergency. Then when she finally gets bad to the point where someone had to emergently intervene they're all going to be looking at me and asking me why I didn't do anything.

This blows.

 

[WisNeuro]

Do you have ROI to talk with the ALF? It's kind of a sneaky workaround, but if you do, you can let them know your concerns and recommendations, with one of those recommendations being that they discuss things with family members (particularly guardianship).

But, I feel ya, way too many patients in the elderly and cognitively compromised cohort who exist in a grey area where our hands are tied until something bad happens. It's especially sad with my patients who literally have no family and few, if any, friends in the area.

 

[wolfvgang22]

She lacks capacity to make medical decisions, and is at risk of coming to harm. You can contact her next of kin to assist her. If she lacks capacity to make medical decisions, then she lacks the capacity to say you can't contact her family to safeguard her health. You don't need to sit around waiting for an emergency if she lacks capacity.

Who is going to sue you? The patient who lacks capacity? The family who cares about her? Also, if they did sue it won't get far, because you believe she is in danger and lacks capacity, and can prove it. Go ahead and report it to APS. Do what's right for the patient and document why you are doing it. Staff the case with a colleague who will back up your decision making progress and document it.

 

[whopper]

She lacks capacity to make medical decisions, and is at risk of coming to harm.

Yes but this risk doesn't meet the legal criteria to break her HIPAA rights.

You can contact her next of kin to assist her.

She said no.

If she lacks capacity to make medical decisions, then she lacks the capacity to say you can't contact her family to safeguard her health.

Those are separate capacities an she gave me an actual reason that did sound like she had the capacity to refuse me contacting her relatives. She doesn't like them and doesn't like them getting into her affairs.

Who is going to sue you?

Dont' know if anyone will sue me but I've noticed rich people with time and money tend to do so, and her family has got time and money. If that were to happen I'd be confident I'd win, but just that I'd likely lose several days of revenue to work on the lawsuit that would likely amount to over $10K, but I don't think there would be a lawsuit.

Go ahead and report it to APS.

Not a bad idea cause it at least gives me some CYA coverage.

Do you have ROI to talk with the ALF?

Haven't tried this one...yet. I probably will in the coming days, but from my experience I usually get a staff member who doesn't want to involve themselves into the problem.

I do have something figured out. I'm going to ask the patient to give me permission to talk to her family and if she refuses I'm just going to terminate her saying that I find it tantamount that her family be involved and she's refusing so I don't feel like continuing our treatment relationship.

 

[SourceOfDenial]

Why does she not want you to contact her family?

I'd be curious if she signed herself into the ALF or if her family did. Sounds like if she is cognitively impaired enough to need assistance with dressing, I wonder who is dispensing her meds. Does she have a private caregiver? Basically...how is medical information being passed to those who need to know.

This is one of those instances where I feel like there is dissonance between what's right and what's legal. Personally, while it may violate the letter of the law by going over HIPAA, it seems like not talking to family is similarly not providing the best care and practice...rules be damned.

Above all, sounds like she could use a good geriatrician.

Missed part of the above reply, which answers somewhat why she doesn't want family involved. But I also think that the ultimatum of termination or calling family seems unjust given her cognitive impairment, and not a good solution either. Seems like you are a good advocate for her, and termination feels like abandonment of someone who is high risk.

Now, the palliative provider in me wants to make sure she has an advanced directive completed, POLST, health care proxy, etc.

 

[thoffen]

Is your only concern harm caused by benzos in this case? If you truly contact the prescribing physician who cannot demonstrate reason to continue the medications that meets standard of care yet refuses to work with you in addressing a change in treatment, would that warrant board complaint?

 

[whopper]

But I also think that the ultimatum of termination or calling family seems unjust given her cognitive impairment, and not a good solution either.

I completely agree. It's not a nice thing. My benevolent intention is that this ultimatum will allow me to contact her family, but nonetheless I don't like it either especially given her cognitive impairment.

This is one of those instances where I feel like there is dissonance between what's right and what's legal. Personally, while it may violate the letter of the law by going over HIPAA, it seems like not talking to family is similarly not providing the best care and practice...rules be damned.

Above all, sounds like she could use a good geriatrician.

Completely agree! Her PCP is continuing something not recommended.

Is your only concern harm caused by benzos in this case? If you truly contact the prescribing physician who cannot demonstrate reason to continue the medications that meets standard of care yet refuses to work with you in addressing a change in treatment, would that warrant board complaint?

Problem here is I have very little information to begin with, and in general I don't recommend people start filing with a board-complaint unless the data is solid.

E.g. if I ask her any question her response is usually "I'm 85 years old what do you expect?"
So are you depressed? "I'm 85 years old what do you expect?"
How is your appetite?"I'm 85 years old what do you expect?"
Your energy level? "I'm 85 years old what do you expect?"
Your sleep? "I'm 85 years old what do you expect?"
How can I help you? "I'm 85 years old what do you expect?"

I'm basically given answers that don't answer my questions or give me enough data to go in a clear-cut direction. It also could be this is her answer so she could cover up dementia.

 

[michaelrack]

1. Call the pcp, tell him to stop it (benzo's). If he doesn't, would strongly consider reporting to state medical board.

2. would call family. lacks capacity. I think the ethical thing to do would be to start the process of getting surrogate decision maker- encourage guardianship. Little risk of getting spanked by the HIPPA police.

 

[Stagg737]

I'm basically given answers that don't answer my questions or give me enough data to go in a clear-cut direction. It also could be this is her answer so she could cover up dementia

This seems like the correct assumption, and I'd probably want to push harder with those questions to see if she is even capable of answering them. Could tell you much more about her capacity and help build your case.

Agree with reporting this case. She's being prescribed a drug with proven dangerous effects in her population from a physician who has been informed of this and continues to prescribe them anyway. What is the PCP's justification for this?

I'm only a resident, but even I feel like this is a case where you could completely justify reporting this somewhere and probably should.

 

[DisorderedDoc417]

I’m a little confused. Couldn’t you obtain further cognitive testing to fill in the gray areas above? Get a definite on what she is capable of and not capable of by an expert, and then contact the necessary parties once she demonstrates the lack of capacity.

 

[nexus73]

I say try to contact admin at ALF and tell them you want family to come to next visit, or maybe they have more info about family dynamics and why patient declines to sign ROI. Maybe family is abusive or something. If you really think there is potential for risk without guardian in place, I think getting in touch with family is more likely to save you a lawsuit; consider if the rich family with time on their hands more likely to sue you if something bad happens and you never called them, or more likely to sue you for breaking confidentiality rules? My intuition says the first.

 

[birchswing]

I'm a bit confused.

You're saying she lacks capacity because she is getting two medical opinions from two different doctors and agrees with one of them and not the other.

Not only that, it's not just a medical opinion—it's regarding an action ("treatment") being taken by the other doctor.

If she were to take your advice regarding a medicine being prescribed by another doctor, who's to say the pharmacist couldn't make a claim to her having incapacity due to not being compliant with her PCP's treatment?

The problem you describe is the patient receiving deleterious treatment from the PCP. The effect of that may be cognitive impairment, but I'm not sure you could argue that agreeing to any suggested medical intervention could indicate impairment. Even young, mentally agile people tend to not have the burden placed on them of discerning whether their doctor's treatment is appropriate or not.

In this patient's case, if the treatment is causing cognitive impairment that you think causes the patient to lack insight into the doctor's bad prescribing, it's a bit like saying a patient under general anesthesia doesn't have capacity to tell the surgeon he's removing the wrong leg and wanting to entreat the family members to correct the surgeon, rather than going to the source: the surgeon.

I'm not a doctor (I think everyone knows that). But one way out of this (besides trying to contact the PCP), could be to say the patient can only have one psychiatric provider (my implication being that the PCP is in essence a psychiatric provider). I'm not sure what services you are providing in addition to the benzos she's getting from the PCP, but it seems like there are at least two cooks in the kitchen, which is generally frowned upon.

 

[splik]

Her PCP is giving her benzos. I told her they're not recommended especially for someone who might have dementia and I don' think she understands the seriousness of the issue.

capacity isnt the issue here. most patients on benzos want to continue taking them. whether they can understand and appreciate the risks etc is debatable especially if they are addicted or dependent on them. if the patient has been on benzos for many years the risk of coming off them may be greater anyway. the real issue here is not one of capacity but one of you not believing benzos are indicated but her PCP prescribing them. If they want to continue prescribing them and she wants to continue taking them that is one then and has more to do with the prescribing physician and less to do with the patient. You should contact the PCP to express your concerns and document that you dont think they are indicated. the issue of capacity is irrelevant here.

 

[Crayola227]

That last bit... I guess, yeah, that kicks it down the yard.

If you're not afraid of making enemies, I like the idea of putting in a strongly worded note and letter to the PCP that should be a touch pucker inducing. Quote some literature while you're at it. We all know how to write a letter that screams, "here let me show you what a lawsuit will sound like."

I don't have experience with this exactly, but I am sure there are ways of going over this PCP's head to raise the issue of their benzo prescribing in a way that might get notice. If they are part of a group, make a complaint? Make a complaint to the medical board. I know that sounds dirty and anyone can do it, but I don't know how else to get it into the community just how big a ****ing deal it is to abusively prescribe these in the elderly. It might go nowhere. Or it might be a piece of hay in a pile of hay of what this doc is doing wrong that will go in a file that might see the light of day somewhere.

To me, this is the sort of thing that even if I'm powerless to actually make anything change for the patient, might at least be a black mark in someone's register somewhere. Due diligence by duly noting on my part will settle for when I can't do more than wash my hands.

 

[Crayola227]

Is your only concern harm caused by benzos in this case? If you truly contact the prescribing physician who cannot demonstrate reason to continue the medications that meets standard of care yet refuses to work with you in addressing a change in treatment, would that warrant board complaint?

you beat me to it

 

[Crayola227]

I like Stagg's point about asking about the justification.

Write to the PCP saying what the standard of care is for prescribing benzos is in this population, that to your knowledge it's inappropriate for this patient, here are your concerns, and ask them what their justification is. Make your case for why the meds need to be dc'd. That you cannot address all these problems without their cooperation, and look forward to their response.

I expect that the doc won't be able to, and will just back off given the paper trail being made.

If they ignore you, you follow up and document that you still haven't received a response, and cc them on that too. I've seen this done, and this last bit done a few times almost always leads to a response. Because failing to respond to your concerns sets them up.

Make the other doctor just as concerned about malpractice or complaint as you are about HIPAA violation.

 

[bashir]

I like Stagg's point about asking about the justification.

Write to the PCP saying what the standard of care is for prescribing benzos is in this population, that to your knowledge it's inappropriate for this patient, here are your concerns, and ask them what their justification is. Make your case for why the meds need to be dc'd. That you cannot address all these problems without their cooperation, and look forward to their response.

I expect that the doc won't be able to, and will just back off given the paper trail being made.

If they ignore you, you follow up and document that you still haven't received a response, and cc them on that too. I've seen this done, and this last bit done a few times almost always leads to a response. Because failing to respond to your concerns sets them up.

Make the other doctor just as concerned about malpractice or complaint as you are about HIPAA violation.

You might consider also offering to the PCP to take over prescribing the benzo for the purpose of tapering.

 

[WisNeuro]

I’m a little confused. Couldn’t you obtain further cognitive testing to fill in the gray areas above? Get a definite on what she is capable of and not capable of by an expert, and then contact the necessary parties once she demonstrates the lack of capacity.

You could, but if you want a formal capacity evaluation, the first part of this is the informed consent telling the patient that the evaluation, or part of it, is tasked with making a determination about her ability to make decisions (medical in this case). Additionally, if part of the evaluation is the intent to pursue guardianship, that also needs to be explicit before you begin. In the case of this patient, I imagine there's a good chance she would refuse.

Now, I've actually had a referring provider ask me to do a capacity evaluation and not tell the patient I was doing one. I kindly informed that what they were asking was ethically, clearly wrong, and most likely illegal in most contexts. When they insisted, I told them where they could stick their referral.

 

[WingedOx]

Wait, is the PCP employed by the ALF? Because I have a wonderful nursing home-contracted PCP prescribing valium+fentanyl story this week.

 

[whopper]

The PCP is not employed by the ALF.

The issue isn't just the benzos though that's part of it. The issue is that without intervening, sometime in the future in the arena of months to years she'll be way way worse off without intervening and she doesn't demonstrate that she understands this. The data with benzos and dementia are they're very bad combination. She could, for example, go into delirium that would've been avoidable had her benzos been weaned off. Delirium can be life-threatening.

But it's not to the degree where I can intervene and break HIPAA cause I don't see an acute and immediate emergency.

What I'm going to do is my ulitimatum-idea and I'm going to call the ALF. I don't like the ultimatum idea but IMHO that's better than breaking HIPAA.

I'll also send a letter to the PCP but this already has been tried and failed. The other doctor who did this before me worked in the same practice and we discussed this already.