If We Come Here Again, You Are Going: How Cajoling the Otherwise Competent Diabetic Patient Could Be More Sour Than Sweet

You are dispatched to 76-year-old male, low blood sugar, possibly unconscious. Upon arrival, you observe the patient, lying on a recliner, with pallor, who reports a low reading on the glucometer, and a falling mental status.

You begin fluid resuscitation methods and restore the patient to 80 mg/dl. The patient, now fully alert and oriented, wants to refuse further assessment and treatment. You utter: “If we have to come back here again, you will be going to the hospital. Do not take your medications tonight.”

Diabetic emergencies, much like overdose patients, present a unique situation where a marginally competent to incompetent patient is restored to competency through the administration of medication and adherence to established protocols.

What The National Model EMS Guidelines (2019) State

1. Repeat glucose is greater than 80 mg/dL
2. Patient takes insulin or metformin to control diabetes
3. Patient returns to normal mental status, with no focal neurologic signs/symptoms after receiving glucose/dextrose
4. Patient can promptly obtain and will eat a carbohydrate meal
5. Patient or legal guardian refuses transport and EMS providers agree transport not indicated
6. A reliable adult will be staying with patient
7. No major co-morbid symptoms exist, like chest pain, shortness of breath, seizures, intoxication
8. A clear cause of the hypoglycemia is identified (e.g. missed meal)

National Association of State EMS Officials (NASEMSO). “National Model EMS Guidelines, Version 2.2” (2019), available here.

Patient Autonomy

While these guidelines may imply protocols that allow an EMS provider to force a patient to be transported to a hospital against their will unless all of the above-conditions are met, these guidelines do not abrogate a patient’s autonomy, absent a legal mandate.

Autonomy is a bioethical concept that a competent patient has the right to accept or refuse to accept medical assessment and treatment.¹ A corollary to this bioethical concept is that a medical provider has an obligation to obtain a patient’s consent at the time that he or she is assessed and treated.

This corollary not only is firmly entrenched in ethics but also law, which imposes a duty upon the provider to establish a person has the ability or capacity to appreciate the benefits and detriments of a decision; and therefore, the competence, or legal power to make a decision on their care.²

Whether a basic or advanced level provider, EMS professionals typically assess capacity by questioning the patient about their awareness of their name, place or present location, date/time, and situation/reason for encounter.

If a person is otherwise alert and oriented through their answers to all four questions, the EMS professional continues their assessment of the patient. If the patient refuses to consent to further assessment and care, the EMS professional must further assess the patient’s ability to make decisions about their care.

To establish decision-making capacity, the EMS provider must assess if the patient can communicate the available choices of continuing care or refusing care, including the benefits and risks thereof, through the EMS provider communicating the relevant information regarding the patient’s present situation, and arrive at a specific choice, otherwise appreciating the information provided to them.³

Providing Assessment

After establishing that the patient is alert and oriented, EMS providers can provide such an assessment by explaining the benefits and risks, including potential further injury/worsening illness up to death, and address the following with the patient:

1. What are the potential benefits of continuing assessment and care
2. What are the potential negative consequences that could result in refusing further assessment and care?
3. What could happen if the patient chooses to do nothing?
4. What does the patient think is the best option for him or her?
5. Why has the patient chosen this option?

Patient Refusal

If the patient can verbalize an understanding of the benefits and risks, without the undue influence of any medical condition overwhelming their capacity, he or she can refuse further assessment and care, even if that decision is against the EMS provider’s opinion; and even if the decision is otherwise a bad choice.⁴

Any refusal not only should be witnessed either by a family member or non-EMS professional, but also well-documented, preferably by body worn camera, if a police officer is serving as a witness or the agency uses body worn cameras, as well as by a prehospital care report.

The professional equally should remind the patient that he or she can always change their mind and obtain further assessment and care. If the EMS professional has doubts as to decisional capacity, the professional should seek online medical direction and document any events flowing therefrom.

Legal Basis

In the above-mentioned scenario involving a diabetic emergency, the patient is alert and oriented and wants to refuse further assessment and treatment. Provided they understand the benefits and risks, the EMS professional has no legal basis to state the patient must go to the hospital if the patient experiences another diabetic emergency.

In the event that the same patient experiences an exacerbation of a pre-existing condition, or an entirely unrelated condition, the EMS professional must provide assessment and treatment in accordance with their protocols. If the patient again is restored to decisional capacity, the patient once again can refuse further assessment and treatment; but the professional should seek online medical direction.

If the patient is not restored to competency, the provider must act in the best interests of the patient, a bioethical concept of beneficence; and otherwise seek to not be the cause of harm, a bioethical concept of non-maleficence.⁵

Ethics

An EMS professional bears the ethical and legal obligation of informing an otherwise competent patient of the benefits and risks of continued assessment and treatment. Once informed, the patient is free to act accordingly; and must not be threatened or coerced into accepting or denying further care or treatment.

Aside from the chilling effect on sick/injured persons seeking care, the EMS professional who cajoles or compels a patient to be assessed and treated against their free will risks both administrative, civil, and criminal liability.

When examining civil liability, the question often is one of whether the decision was objectively reasonable under the circumstances in a federal civil rights action,⁶ whether the decision breached a duty and was the cause of injury to the patient in a negligence action,⁷ and/or whether the decision meets the elements of an intentional tort (e.g. battery, false imprisonment, etc.).

Depending on your respective jurisdiction, these questions may have complicated answers, result in time away from work to answer questions from legal counsel, and/or require you to testify at a trial or other proceeding.

Criminal Liability

When examining criminal liability, the question involves whether the elements of the crime for which the EMS professional could be arrested, indicted (where applicable), and tried are met. The charged crime may be coercion, false imprisonment/kidnapping, and/or assault/battery. Unlike civil liability, the consequences could result in your imprisonment and/or payment of fees/penalties, as well as the associated civil liability that coincides with a criminal judgment.

With any civil and/or criminal action, the credentialing agency, often the Department of Health, could suspend or revoke your license, both during the pendency of the action and following its resolution.

Back to the Original Case

Returning to our scenario involving the diabetic emergency, barring a specific provision within your scope of practice, the EMS professional should never counsel a patient to refrain from taking a medication without online medical direction.

Whether basic or advanced, the EMS professional is not a medical doctor nor pharmacist. In acting outside of their scope of practice, the professional could be held liable for the result of such ill-conceived advice.

While it may not be glamorous or well-paying, the public views EMS as a service comprised of trained professionals. As professionals, the EMS provider must align themselves with both bioethical and legal requirements whenever providing assessment and treatment.

The failure to adhere to these requirements may result in the professional developing a sour taste in their mouth if the patient is capable of refusing care yet is cajoled into further care/treatment.

Author Disclaimer

This article does not constitute legal advice and should only be used for informational purposes. For legal advice, consult a licensed attorney in your respective jurisdiction. This article may not constitute the opinion of the employer of the author, nor is intended to convey such a message; but rather express the views of the author and the author alone.

References

1. Basil Varkey, “Principles of Clinical Ethics and their Application to Practice,” Med Princ Pract (2021) 30 (1): 17–28, available at: https://doi.org/10.1159/000509119.

2. King KC, Martin Lee LAM, Goldstein S. “EMS Capacity and Competence,” StatPearls [Internet]. Jan 2023, available at: https://www.ncbi.nlm.nih.gov/books/NBK470178/

3. Appelbaum PS. Assessment of patients’ competence to consent to treatment. N Engl J Med. 2007:357 (18): 1834—1840.

4. See e.g. Klein v. Sanford USD Medical Center, 872 NW.2d 802 (South Dakota 2015)(patient barred from civil action against hospital after leaving against medical advice and thereafter brutally assaulting his neighbors where documentation showed patient was alert, oriented, cognizant, and making decisions on his own and medical staff otherwise had no basis to hold him).

5. For a full discussion of bioethics, see Beauchamp, J. “Principles of Biomedical Ethics,” Principles of Biomedical Ethics (2013).

6. See e.g. Buckley v. Hennepin County, 9 F.4th 757 (8th Cir. 2021)(paramedics who sedated an intoxicated male who threatened self-harm and objected to transport to hospital entitled to dismissal of action against them as actions not objectively unreasonable).

7. See e.g. Wright v. City of Los Angeles, 268 Cal.Rptr. 309 (California Ct.App. 1990)(paramedic who did not ask person any questions to determine capacity/orientation, did not perform sufficient assessment nor seek medical direction, liable for gross negligence in wrongful death action).