In their seminal work on the subject, Beauchamp and Childress proposed modern bioethics should be based on the principles of autonomy, beneficence, non-maleficence and justice.1 Of these, the principle of upholding a patient’s autonomy creates the potential of many difficult ethical dilemmas. These dilemmas are especially demanding for EMS practitioners in the dynamic and often dangerous field, where crews are expected to make decisions quickly and frequently without command of all the pertinent facts.
Despite the importance of the principle of autonomy, there is little discussion within EMS circles of this topic. With this in mind, this essay aims to explain the principle of autonomy and how it pertains to the modern EMS practice, specifically, this essay will explain what informed consent and capacity to consent means within EMS practice.
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This essay will lay out a rudimentary explanation of patient autonomy as it relates to EMS. It is hoped that by exposing the reader to these considerations, the reader may be able to reflect on his/her practice almost as a form of vaccination against unethical practices.2 The unique ethical demands of treating pediatric patients and balancing the demands of acting in the child’s best interest against parental autonomy is beyond the scope of this essay.
What is Autonomy?
Derived from the Greek autos (‘self’) and nomos (‘rule’), autonomy describes the philosophical tradition of self-rule or governance. In order to truly act in an autonomous fashion, a person must have liberty and agency; the absence of coercion and the capacity for intentional action, respectively.1 In healthcare terms, autonomy refers to the obligation of the healthcare provider empower patients to direct their own clinical as much as possible.2 This includes consenting to assessment and treatment as well as directing the nature of their care.
Informed consent imposes on the practitioner a duty to both inform the patient before obtaining consent and before initiating a treatment or assessment.3 Thus, informed consent relies heavily on the practitioner to be honest and be able to effectively communicate accurate information with the patient. In particular, practitioners are obligated to disclose to the patient his/her clinical condition, available treatment options, desired outcomes, and potential side effects.2
For example, a practitioner may decide to treat pain with an analgesic such as morphine or fentanyl are likely to help manage pain. The practitioner must also explain they may experience side effects including nausea, drowsiness and obtaining consent from the patient before administering it. The patient at this point may be more averse to nausea, for example, than pain.
EMS practitioners may benefit from the example set by our colleagues in law enforcement. Following the landmark Miranda vs Arizona decision, officers must advise persons in their custody of their Constitutional rights to legal representation and Fifth Amendment protections before questioning.4 While it is not suggested that practitioners use pro-forma approach to patient care in the same way police officers recite a well-practiced legal warning, it should be understood that an unknown right or treatment option is no right at all.
In cases where patients are unconscious or semi-conscious, there is a long a standing principle of implied consent whereby the practitioner is compelled to act in the patient’s best interest. Outside of situations involving health care proxies, guardians, and advanced directives (which will be discussed below), these scenarios are fairly straight forward. The duty to act for these patients is more thoroughly examined within the principle of beneficence as opposed to autonomy.1,2
Respecting patient autonomy requires a high degree of disclosure from the practitioner. In most American states, professionals are bound to the reasonable person standard for disclosure.1 While the standard has not concrete requirements, which can be useful in EMS due to the variety of situations. However, it can be difficult to implement because of its metaphysical and subjective nature.
Consider, for example, a heart attack victim refusing treatment or transport despite being very obviously seriously sick and peri-arrest. Or a patient in labor who refuses to allow a male provider to examine her placing not only her own life at risk but also that of her unborn child. What is an acceptable risk? Who is this reasonable person? How well can a patient be reasonably expected to grasp and understand the complexities of the human body in the midst of a medical emergency? How does the reasonable person balance risks and benefits?
Unfortunately, there is no clear answer. Despite centuries of reflection, just how exactly to judge what is or is not reasonable remains an open debate amongst legal scholars.5 Suffice to say, a modern healthcare of provider must not conflate their idea of the ideal treatment pathway with the only acceptable treatment option for the patient.
In relation to EMS, autonomous patients have tremendous breadth to dictate their own treatment. They can elect to not undergo assessment, treatment or transportation. An autonomous patient can even dictate to which facility they be transported to, subject to clinical appropriateness and operational constraints; not every patient needs to go to the closest facility.
Capacity to Consent
In a manner similar to the dichotomy rights and responsibilities within the modern Western democratic societies, the right to self-determination in healthcare is contingent on the patient’s ability to make informed decisions. While much work has been done on requiring practitioners to disclose all pertinent information to patients and their representatives, there is now new emphasis on the ability of the patient’s ability to understand that information in order to give consent.1
Of course, EMS practitioners routinely come into contact with patients of diminished capacity and competence. Although these terms are often used interchangeably, there does exist an important differentiation. Competence is generally accepted as a term of law to describe long-term ability or inability to make informed decisions whereas capacity is a term of medicine that describes the ability or inability in an acute setting.6 Thus, an otherwise competent patient may temporarily lack the capacity to make informed decisions as in the case of an intoxicated patient or in the case of traumatic brain injury.
Patients deemed incompetent will typically have a nominated surrogate to make healthcare decisions. These surrogates will typically have an instrument of guardianship awarded by the court. Guardianship should not be confused with a healthcare proxy. As noted above, a guardian will have written authorization from the court to make any and all decisions on behalf of the patient regardless of his or her wishes. By contrast, a healthcare proxy is nominated by an autonomous (competent) patient to make healthcare decisions on his or her behalf in the event the patient should loose capacity at any point.
Therefore, the wishes of the healthcare proxy can be viewed as an extension of the wishes of the patient. Practitioners should familiarize themselves with guardianship and healthcare proxy laws, regulations, and documentation within their area of operations in order to be able to identify these guardians and proxies when they present themselves on scene.
Similarly, advanced directives and “do not resuscitate” orders (also referred to by different names and abbreviations throughout the country; DNR, DNAR, DNACPR, MOLST, etc.) are likewise made in advance, typically with input from the patient and their provider. These, too, should be considered extensions of patient autonomy and, like guardianship and healthcare proxy instruments, dutiful practitioners must familiarize themselves with the unique forms and functions of such orders they are likely to encounter within their area of operations.
It is imperative that practitioners understand that these orders and proxies are expressly for instances where a patient lacks capacity. A capacitive patient may refuse transport to the emergency department from his/her home over the objections of his/her proxy.
Although proposing a specific model or tool for assessing patient capacity is beyond the scope of this work, the reader should be mindful of the ethical implications of assessing capacity in their practice. Any assessment of capacity must demonstrate a patient’s ability (or inability) to understand their condition and treatment options and use that information to make an informed decision. It is also worth mentioning that assessing capacity is a dynamic process taken from multiple observations over time.7
A patient experiencing hypoglycemia, for example, may initially lack the capacity to refuse treatment but may regain that capacity after being treated with glucose or glucagon. That a patient may then refuse further treatment or transport to the emergency department; just because a patient initially lacked the ability to make an informed treatment decision, does not mean that a patients capacity cannot be restored at some point during the patients treatment.
Healthcare providers are expected to act in an ethical manner and to respect patient autonomy as much as is possible. Although the prehospital field is a fluid and challenging environment, this obligation is no less important to EMS practitioners.
Autonomy refers to the patient’s right to self-rule and within healthcare, is predicated on full and honest disclosure on the part of practitioner and the capacity to understand that information in order to make an informed decision on the part of the patient. Practitioners should strive to be truthful and effective communicators with their patients. It is vital for the modern practitioner to note that a patient simply cannot make an informed decision otherwise. Practitioners must also be effective at identifying the capacity or incapacity of a patient to make informed decisions and to act accordingly.
Of course, no ethical principle exists in a vacuum. The principle of respect for autonomy is intimately with the other three principles of biomedical ethics: beneficence, non-maleficence and justice. Ethical dilemmas occur when one or more of these principles come into conflict. In order for the practitioner to resolve an ethical dilemma requires a solid grounding in all four principles. Given the lack of literature on the subject as it relates to EMS, further writing is required.
With that being said, this work should help the reader better understand how and why competent practitioners uphold respect for autonomy despite all these challenges.
- T. L. Beauchamp and J. F. Childress, Principles of Biomedical Ethics, 6th ed., New York, NY: Oxford University Press, 2009.
- American College of Emergency Physicians, “Code of Ethics for Emergency Physicians,” Annals of Emergency Medicine, vol. 70, no. 1, pp. e7-e15, 2017.
- R. R. Faden and T. L. Beauchamp, A History and Theory of Informed Consent, New York, NY: Oxford University Press, 1986.
- US Supreme Court, “Miranda vs State of Airizona,” 13 June 1966. [Online]. Available: https://www.law.cornell.edu/supremecourt/text/384/436. [Accessed 6 August 2020].
- A. D. Miller and R. Perry, “The Reasonable Person,” New York University Law Review, vol. 87, no. 2, pp. 323-392, 2012.
- D. Taylor, A. Ho, L. C. Masse, N. Van Borek, N. Li, M. Patterson, G. Ogilvie and J. A. Buxton, “Assessment of Capacity to Consent by Nurses Who Deliver Health Care to Patients Who Misuse Substances,” Global Qualitative Nursing Research, vol. 3, no. 1, pp. 1-9, 2016.
- D. R. Norris, M. S. Clark and S. Shipley, “The Mental Status Examination,” American Family Physician, vol. 94, no. 8, pp. 635-641, 2016.
- T. L. Beauchamp, “Methods and Principles in Biomedical Ethics,” Jounral of Medical Ethics, vol. 29, no. 5, pp. 269-274, 2003.