You’re dispatched to a motor vehicle collision (MVC). On arrival you find a 58-year-old male who was the restrained driver of a vehicle that hit another at moderate speed, resulting in six inches of intrusion into the passenger side rear compartment.
An initial assessment is attempted but the patient is on his cellphone with his lawyer and refusing any evaluation or care. You detect the odor of alcohol on his breath, but don’t note any slurred speech or ataxic gait.
Eventually, he allows you to get a set of vital signs while he’s on the phone. His blood pressure is 132/90, heart rate is 138 and respiratory rate is 20 with a pulse oximetry of 98% on room air.
You’re able to obtain a dextrose stick, which shows 118 mg/dL, at which point he says he’s had enough and won’t cooperate with any further evaluation. The police are asking you if he’s intoxicated and whether or not you’ll be taking him to the hospital, as they believe there are grounds to suspect he was driving under the influence of alcohol.
Can this patient refuse care? How do you decide when to take someone to the hospital against his or her will? What is your most appropriate next move?
Capacity won’t be based on a number such as a blood alcohol level, so a Breathalyzer result won’t help you in this situation.
An uncooperative patient who’s refusing care represents one of the most difficult situations we face in prehospital care. Although we clearly have an obligation to our patient to ensure their safety, we also must respect their right to make decisions for themselves when they have the capacity to do so, even when we feel they’re making a bad decision.
How do you balance their safety with their legal rights in these situations? In a case like this, would a blood alcohol level taken by Breathalyzer be helpful in making this decision?
Decisions on whether a patient can refuse care are going to come down to whether they have the capacity to make decisions for themselves. The issue of mental capacity can be a difficult one, but something we need to be comfortable addressing.
As medical care providers, we must first consider medical causes for their uncooperative behavior. Normal findings on the mental status assessment without evidence of diminished mental capacity from closed head injury, severe pain, hypoxia, hypotension or developmental delays are some of the first steps in assessing capacity.1
Although these were considered in our MVC patient, we were able to determine he’s not hypoglycemic or hypoxic and haven’t been able to find any obvious injury to explain his behavior. We’re now tasked with assessing his capacity in order to determine if we need to continue our evaluation and take him to the hospital against his will or allow him to refuse further medical care.
There will be some situations where the police will arrest someone and insist they be medically evaluated, but even an individual who’s under arrest has the right to refuse medical care as long as they have the capacity to make decisions for themselves. Many of the difficult situations we face will come down to this: Does your patient have the capacity to make decisions for themselves or not? But how do we determine capacity?
Learn how to handle refusal of transport from patients who go from uncooperative to combative in this exclusive interview in the digital edition of this issue.
Competency, often incorrectly used interchangeably with capacity, is a legal determination indicating a ruling by a court that a person is unable to manage his or her own affairs, and is generally outside our scope.
Capacity at the time of evaluation is for us as medical providers to determine. There are times when this determination is obvious. Either the patient clearly isn’t in a state where they can make decisions for themselves, or it’s very apparent they can.
The situations that aren’t obvious are the ones that provide some of our greatest challenges. The dilemma is whether to take away a patient’s civil rights or risk releasing them when they could be suffering from a serious injury or illness.
To possess decision-making capacity, a patient must exhibit the following four abilities:
- To communicate a choice;
- To understand relevant information as it is communicated;
- To appreciate the significance of the information to their own individual circumstance; and
- To use reasoning to arrive at a specific choice.2,3
In essence, the patient must understand the risks and benefits of decisions they’re making. If they do, they’re free to make decisions for themselves—even what we would consider to be bad decisions. If they don’t, we’re responsible for their care and safety—even if that means taking them to the hospital against their will.
Capacity is a clinical determination and therefore one that you as a medical provider need to make. It won’t be based on a number such as a blood alcohol level, so a Breathalyzer result won’t help you in this situation—the state legal limit of intoxication isn’t a measure of a patient’s competence. Alcohol ingestion itself may not render a patient incompetent, so someone may still have capacity to make decisions on their own even with alcohol on board.4
Any alcohol level will affect an individual differently based on a variety of factors including previous experience and physical characteristics. The EMS provider will need to evaluate each situation individually to determine whether the patient is incapacitated by alcohol to the extent they’re no longer able to understand the proposed treatment, risks and benefits, and rational alternatives.5
Because the number isn’t going to help us in determining a patient’s capacity, it can be better not to have a number so that the only relevant criterion for determination of the patient’s capacity is the provider’s judgment.6
As with alcohol or other intoxicating substances, the mere presence of mental illness doesn’t automatically preclude a patient from having the right to participate in his or her medical care. In all instances the provider’s responsibility will be to balance the interests of protecting the patient and the public from harm while respecting patient autonomy.
EMS providers are often faced with determining a patient’s capacity under very challenging circumstances and need to develop expertise in assessing capacity. The decision to allow a patient to refuse care or transport may be one of the riskiest decisions we make.
Five questions you can ask patients that can be helpful in determining capacity include:
- Have you decided what you want to do?
- What are the risks of the options we have discussed?
- What could happen if you choose to do nothing at this time?
- Why do you think this is the best option for you at this time?
- Why have you chosen the option that you did?7
Clear answers to these or similar questions, even if you disagree with those answers, can help you determine the patient’s decision-making ability while refusal or inability to give answers could be an indication that the patient lacks this ability.
The level of scrutiny that a provider applies to evaluating capacity varies depending on the decision to be made and the risks and benefits of the proposed medical care.
For example, if a patient with a superficial abrasion from a minor mechanism refuses transport to the hospital, the provider can exercise a lower level of scrutiny when assessing the patient’s capacity to make decisions than a situation where the patient was the victim of a roll-over MVC.
Even when applying the above criteria, you’ll inevitably run into situations where you’re not certain which way to go, and the best rule to follow in these situations is: When in doubt, do what you would rather defend.
The “when in doubt” rule simply states that when providers are in doubt about the legality of a situation, “They should do what they believe to be in the patient’s best interest and worry about the legal consequences later.”7
Although providers risk criminal and civil charges of false imprisonment, battery, and even negligence for failure to obtain appropriate informed consent, the courts almost universally rule in favor of those who act in good faith on behalf of their patients in emergency situations. Successful civil litigation regarding an issue of consent theory against a provider acting reasonably, and consistent with the appropriate standard of care, is extremely rare.8
We’re more likely to be sued for failure to treat when capacity is in question than for providing reasonable treatment without consent. This can often involve taking the patient against their will, as patient and/or public safety will dictate a conservative approach.
Although much of the literature published on this issue addresses care in the ED, the same principals apply in the prehospital setting.
As with everything we do, it will be important to carefully document the decisions we make in these situations. This documentation will need to be nonjudgmental, and done at a time when we aren’t emotional or reacting to the situation. Just as consent is a process, not a signature, capacity is an assessment at a specific point in time, not simply a subjective opinion, and your documentation will need to reflect this and the reasons you have come to the conclusion you did.
The decision to take a patient against their will is going to come down to the assessment of the patient’s capacity to make decisions. If the patient has capacity, we must honor and respect their decision even when we don’t agree with it. If they don’t have capacity, we have the obligation to ensure their safety and need to make decisions accordingly.
It’s the provider’s task to determine the patient’s capacity, and this will be a clinical decision based on the information available to them. This is a big responsibility, but also one that we as providers need to be skilled at and comfortable with.
1. Jones RC, Holden T. A guide to assessing decision-making capacity. Cleve Clin J Med. 2004;71(12):971–975.
2. Appelebaum PS, Grisso T. Assessing patients’ capacity to consent to treatment. N Engl J Med. 1988;319(25):1635–1638.
3. Appelbaum PS. Assessment of patients’ competence to consent to treatment. N Engl J Med. 2007;357(18):1834–1840.
4. Miller vs. Rhode Island Hospital, 625 A2d 778 (RI 1993).
5. Bitterman RA: Emergency medical treatment and active labor act and medicolegal issues. In Marx JA, Hockberger RS, Walls RM, et al. (eds.), Rosen’s emergency medicine: Concepts and clinical practice. Elsevier: Philadelphia, pp. 2582–2599, 2010.
6. Simel DL, Feussner JR. Does determining serum alcohol
concentrations in ED patients influence physicians’ civil suit liability? Arch Intern Med. 1989;149(5):1016–1018.
7. Heller DB: Informed consent and assessing decision-making capacity in the emergency department. In JG Adams (Ed.), Emergency medicine, second edition. Saunders: Philadelphia, pp. 1749–1752, 2008.
8. Monico EP. (June 1, 2009.) Against medical advice in the ED: Where we are in 2009. ACH Media. Retrieved June 14, 2016, from www.ahcmedia.com/articles/113244-against-medical-advice-in-the-ed-where-we-are-in-2009.