Psychiatry for Neurologists - part 10 docx

REFERENCES 1. Jones WH. Hippocrates. Decorum XVI. In: Jones WH, ed. Hippocrates with an English Translation, Vol. 2.London: Heinemann; 1923. 2. Vandekieft GK. Breaking bad news. Am Fam Physician 2001;64:1975–1978. 3. Creagan ET. How to break bad news-and not devastate the patient. Mayo Clin Proc 1994;69:1015–1017. 4. Tipper L, Bonas S, Fisher J, Barnett M. Female doctors break bad news best. E-Bulletin: University of Leicester: England; 2003. 5. Buckman R. Breaking bad news: why is it so difficult? Br Med J 1984;288:1597–1599. 6. Ley P. Giving information to patients. In: Eiser JR, ed. Social Psychology and Behavioral Medicine. New York: Wiley; 1982:353. 7. Rabow MW, McPhee SJ. Beyond breaking news. How to help patients who suffer. West J Med 1999;48:260–263. 8. Greenstine JL, Leviton SC. Elements of Crisis Intervention: Crises and How to Respond to Them, Second Edition. Pacific Grove, CA: Brooks/Cole; 2002. 9. Kanel K. A Guide to Crisis Intervention, Second Edition. Pacific Grove, CA: Brooks/Cole; 2002. 10. Rosenbluh ES. Emotional First Aid. Louisville, KY: American academy of crisis interveners; 1981. 11. Department of Health and Human Services. Office of Civil Rights (OCR). Health Information Portability and Accountability Act. www.hhs.gov/ocr/hippa/. Accessed April 24, 2005. 12. Tarasoff vs Regents of University of California. 551 P.2d 334. California; 1976. 13. Temkin NR, Dikmen SS, Anderson GD, et al. Valproate therapy for prevention of post-traumatic seizures. J Neurosurg 1999;91:595–600. 14. Kim E, Humaran TJ. Divalproex in the management of neuropsychiatric complications of remote acquired brain injury. J Neuropsychiatry Clin Neurosci 2002;14:202–205. 15. Chatham-Showalter PE. Agitated symptom response to divalproex following acute brain injury. J Neuropsychiatry Clin Neurosci 2000;12:395–397. 16. Venkataraman V,Wheless JW. Safety of rapid intravenous valproate loading doses in epilepsy patients. Epilepsy Res 1999; 35:147–153. 17. Wheless JW,Venkataraman V. Safety of high intravenous valproate loading doses in epilepsy. J Epilepsy 1998;11:319–324. 18. Pachet A, Friesen S, Winkelaar D, Gray S. Beneficial effects of lamotrigine in traumatic brain injury. Brain Inj 2003; 17:715–722. 19. Levin HS, Grossman RG. Behavioral sequelae of closed head injury. A quantitative study. Arch Neurol 1978;35:720–727. 20. Reyes RI, Bhattacharya AK, Heller D. Traumatic head injury: restlessness and agitation as prognosticators of physical and psychological improvement in patients. Arch Phys Med Rehabil 1981;62:20–23. 21. Brooke MM, Questad KA, Patterson DR, Bashak KJ. Agitation and restlessness after closed head injury: a prospective study of 100 consecutive admissions. Arch Phys Med Rehabil 1992 73:320–323. 22. Freeney DM, Gonzalez A. Amphetamine, haloperidol, and experience interact to affect rate of recovery after motor cortex injury. Science 1982; 217:855–857. 23. Feeney DM, Westerberg VS. Norepinephrine and brain damage: alpha noradrenergic pharmacology alters functional recovery after cortical trauma. Can J Psychol 1990;44:233–252. 24. Goldstein LB, Hovda DA. Basic and clinical studies of pharmacological effects on recovery from brain injury. J Neural Transplant Plast 1993;4:175–192. 25. Elovic EP, Lansang R, Li Y, Ricker JH. The use of atypical antipsychotics in traumatic brain injury. J Head Trauma Rehabil 2003;18:177–195. 26. Brodaty H, Ames D, Snowdon J, et al. A randomized placebo-controlled trial of risperidone for the treatment of aggres- sion, agitation, and psychosis of dementia. J Clin Psychiatry 2003;64:134–143. 27. Folsom DP, Nayak GV, Jeste DV. Antipsychotic medications and the elderly. Primary Psychiatry 2004;11:47–50. 28. American Diabetes Association. Consensus development conference on antipsychotic drugs and obesity and diabetes. Diabetes Care 2004;27:596–601. 29. Allison DB, Casey DE. Antipsychotic-induced weight gain: a review of the literature. J Clin Psychiatry 2001;62:22–31. 30. Masand PS, Gupta S. Long-term adverse effects of atypical antipsychotics. J Psychiatr Pract 2000;6:299–309. Psychiatric Emergencies and Crisis Management 389 391 29 Informed Consent and Competency Legal and Ethical Issues David Naimark, Laura Dunn, Ansar Haroun, and Grant Morris INTRODUCTION Clinical issues related to informed consent and competency are present in all areas of medicine and are, quite possibly, the most relevant in the disciplines of psychiatry and neurology. The very nature of the specialty (involving disease of mind or brain) often calls into question the ability of the patient to understand the medical procedures or treatment that are being proposed. In this chapter, we begin with an exploration of the legal aspects of informed consent and competency in order to give the reader an underpinning of the basic concepts, and then proceed to a “how- to” guide for accomplishing the medical task of assessment. LEGAL ASPECTS OF INFORMED CONSENT AND COMPETENCY The Doctrine of Informed Consent The Tort of Battery In 1914, Justice Benjamin Cardozo, writing for the New York Court of Appeals in Schloendorff vs Society of New York Hospital (1) declared, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits [the tort of battery], for which he is liable in damages” (1). This early 20th-century quotation is often cited as the starting point for the law’s recognition of the patient’s right to medical self-determination. It is easy to understand why battery was the tort first chosen to champion the patient’s right to control physician decision making. Early 20th-century cases typically involved fact situations in which the patient either specifically prohibited any operation, or authorized an operation different than the one performed by the surgeon. Under such circumstances, it was easy for the courts to find that the tort of battery had been committed. That tort protects the inviolability of one’s person, described by writers as the first and greatest right of a free citizen, one that underlies all other rights. An operation performed without permission on an anesthetized patient violates that patient’s bodily integrity. The tort is committed by the unauthorized contact, no matter how medically appropriate the surgery and no matter how skillfully it is performed. Neither an intent to harm the patient, nor negligence in performing the operation itself, are required for the tort of battery, only knowledge that the contact is made without the patient’s consent. Actual physical harm to the patient is not a prerequisite for tort liability; battery is a dignitary tort, protecting individuals from offensive as well as harmful contact. From: Current Clinical Neurology: Psychiatry for Neurologists Edited by: D.V. Jeste and J.H. Friedman © Humana Press Inc., Totowa, NJ When the operation, or other touching of the patient’s body, was performed without any consent, the tort of battery was, and continues to be, well suited to protect the patient’s autonomy interest. Over the years, however, patients demanded more for their autonomy right. Self-determination meant more than simply accepting or rejecting the doctor’s decision; it meant the right for patients to make the decision themselves. And to make those decisions, patients needed the information about the proposed treatment or surgery that only their doctors could provide to them. But courts were far more reluctant to characterize as batteries treatments or operations that were performed with the patient’s consent but without an adequate disclosure by the surgeon of the risks, benefits, and alternatives to the agreed upon procedure. The tort of battery was relegated to cases in which the physician either operated without obtaining any consent from the patient or the patient specifically declined the operation. In devel- oping a duty of disclosure a half century after Schloendorff, courts distinguished between “real” or “basic” consent, necessary to avoid liability for battery, and failure to obtain the patient’s “informed” consent, which most courts characterized as the tort of negligence. The Tort of Negligence A plaintiff claiming negligence must prove that the defendant breached a duty that was owed to the plaintiff and that the breach caused an injury to the plaintiff. The term “informed consent” was first mentioned in 1957 in a California Court of Appeal decision. That court embraced the principle of patient medical self-determination, declaring, “a physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelli- gent consent by the patient to the proposed treatment” (2). The physician’s disclosure duty requires an explanation of the nature of the treatment or procedure that is being proposed by the physician, the possible alternatives to that treatment or procedure, and the material risks and anticipated benefits of the treatment or procedure. The physician’s disclosure duty, however, is not absolute. In Natanson vs Kline, the Kansas Supreme Court acknowledged that a physician probably has a therapeutic privilege to withhold a diagnosis of cancer or other dread disease from an unstable, temperamental, or severely depressed patient when disclosure would seriously jeopardize the patient’s recovery. The court noted, however, that suppres- sion of facts would not be warranted in the ordinary case. Merely because the physician believes that the patient may decline a procedure or operation if the risks are explained to him or her does not excuse the physician’s failure to divulge those risks. Although physicians are not permitted to deceive patients in order to substitute their own judgment for that of their patients, the Natanson court ruled that the physician’s duty to disclose “is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances” (3). In essence, the court engrafted onto the disclosure requirement the medical custom standard of care that is used to determine professional malpractice. As long as the defendant conformed to the level of disclosure of other physicians in good standing, and the defendant is presumed to have conformed in the absence of expert medical testimony to the contrary, no breach of the disclosure duty would be found. The medical custom standard is used today by a majority of states to measure whether the physician’s disclosure duty has been breached. In part, the dominance of this standard was assured by the legislative response to the perceived medical malpractice crisis of the mid-1970s. As one “reform” to reduce physician liability and malpractice insurance costs, several states enacted legislation adopting the medical custom standard to measure breach of the physician’s disclosure duty. Not all jurisdictions, however, allow physicians to establish their own standard for measuring disclosure. In Canterbury vs Spence, the US Court of Appeals for the District of Columbia Circuit rejected the medical custom approach, asserting, “[i]t is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie” (4). “In our view,” wrote the court, “the patient’s right of self-decision shapes the boundaries of the duty to reveal.” The adequacy of the physician’s disclosures to the patient “must be measured by the patient’s need, and that 392 Naimark et al. Informed Consent and Competency 393 need is the information material to the decision: all risks potentially affecting the decision must be unmasked.” Concerned that physicians might not know what risks would be material to their patients, the Canterbury court defined “material risks” as those risks that a reasonable person in the patient’s position would be likely to consider significant. Although the court acknowledged that “orthodox negligence doctrine” measures “the reasonableness of the physician’s divulgence in terms of what he knows or should know to be the patient’s informational needs,” the court transformed the individual patient’s informational needs into those of the hypothetical, reasonable patient. The patient, the court acknowledged, has no duty to ask for information from the physician. The physician is obligated, despite the patient’s silence, to volunteer information that the patient needs to make his or her decision. “Caveat emptor is not the norm for the consumer of medical services,” says the court. But the Canterbury court did not require the physician to inquire of the silent patient whether there was anything he or she would like to know (i.e., what is important to that patient’s decision making). And yet, by not obligating physicians to ask their patients what their concerns are, and then to respond to those concerns, the Canterbury court, in reality, ruled that the physician’s disclosure duty is owed, not to his or her patient, but only to the reasonable patient. By homogenizing all patients into reasonable patients, the court perverted the very principle it proclaimed. The Canterbury court erected other barriers to the patient’s right to self-determination. If the physician fails to reveal the risks and alternatives that a reasonable patient would consider material to his or her judgment, negligence law requires the patient to prove that this breach of duty caused harm. The harm requirement is satisfied, said the court, only if an unrevealed risk that the physician was obligated to disclose, materializes, and the causation requirement is satisfied only if a reasonable person in the patient’s position would have declined the treatment if the risk had been revealed. Harm, according to the court, is limited to the patient’s interest in his or her physical well-being (i.e., was the patient physically injured by the physician’s breach of the disclosure duty?) The court assures us that “[t]he patient obviously has no complaint if he would have submitted to the therapy notwithstanding awareness that the risk was one of its perils.” The patient, however, does have a complaint. The patient has been deprived of the right to decide. That loss of individual autonomy, in and of itself, is an injury Nevertheless, this dignitary loss, the right to make one’s own choice as to what shall be done to one’s own body, is not compensable. For the patient to succeed in a negligence claim against the physician, Canterbury requires that the plaintiff suffer a physical injury from the physician’s breach of the disclosure duty. The Canterbury court’s analysis of the causation requirement is even more dubious. If the physician does not breach the disclosure duty, the patient’s decision to accept or reject the proposed treatment or surgery will not be disturbed. “The patient,” the court tells us, “is free to decide for any reason that appeals to him.” But if the physician breaches the disclosure duty, depriving the patient of his or her right to decide, for any reason that appeals to him or her, then causation of harm will not be measured by what he or she would have decided, but rather, by what a reasonable person in the patient’s position would have decided. The causation requirement is no longer an inquiry about what the patient would have decided if he or she had not been deprived of information material to his or her judgment. The patient who has been wronged by the physician’s nondisclosure is permitted to win only if he or she would have made a decision that the jury considers to be reasonable. Despite its doctrinal deficiencies, Canterbury’s reasonable patient test—for measuring both breach of the disclosure duty and causation—has become the “liberal” alternative to the conservative reasonable doctor test. For nearly half the states, Canterbury did not become a new point of departure; it became a final destination. Expanding the Definition of “Material Risks” That Must Be Disclosed Suppose a physician informs the patient of the risks of and alternatives to procedures and diagnostic tests that the physician proposes, and the patient declines the proposed treatment. To fulfill his or her disclosure duty, must the physician also disclose to the patient the risks of patient’s decision to refuse treatment? Some courts have responded in the affirmative. The California Supreme Court, for example, has ruled that this broadened disclosure obligation is needed to assure not only that the patient gives an informed consent to treatment, but also to assure that the patient’s refusal of treatment is also informed. “The duty to disclose was imposed,” said the California Supreme Court, “so that patients might meaningfully exercise their right to make decisions about their own bodies” (5). But suppose, for example, that after evaluating a patient, the physician’s proposed course of action is no action. The physician decides not to order additional laboratory tests to better diagnose a patient’s medical condition, or simply decides to monitor the patient’s condition but not to administer any treatment, or decides to terminate treatment because, in the physician’s judgment, a successful outcome has been achieved. Must the physician disclose the risks of and alternatives to the nontreatment option that the physician has selected? Because the tort of battery requires unpermitted physical contact with the patient, that tort is not committed by physician’s decision to select the “no-treatment” option. But does a negligence-based informed consent doctrine require the physician to disclose the risks and alternatives of these nontreatment options, at least if a reasonable physician would disclose them or if a reasonable patient would find them material to his or her decision making? After all, the absence of treatment can result in physical injury to the patient just as assuredly as can active mis- treatment. In an era of managed care, cost containment, and the rationing of medical services, this question is a serious concern for patients. It is also a serious concern for physicians who must comply with their disclosure duty under the doctrine of informed consent and who know that their patients are likely to demand affirmative, and costly, treatment options if they are informed of them. Some courts have imposed a duty to disclose. For example, in Matthies vs Mastromonaco (6) the New Jersey Supreme Court was unwilling to limit a negligence-based informed consent doctrine to a nonconsensual touching proposed, but not adequately explained, by the physician. The court specifically upheld the patient’s right to make an informed decision about medically reasonable alternatives, not merely to give an informed consent to the alternative that the physician recommends. The court would not allow the physician to, in essence, decide for the patient by discussing only the physician’s treatment (or nontreatment) of choice. As the court stated, “physicians may neither impose their values on their patients nor substitute their level of risk aversion for that of their patients By not telling the patient of all medically reasonable alternatives, the physician breaches the patient’s right to make an informed choice.” Although the physician’s choice might be medically appropriate and conform to the physician’s standard of care, nevertheless, it might not be the choice that the patient would make. The absence of malpractice does not assure the presence of the patient’s informed choice. Other courts, however, disagree, limiting a patient’s right to make decisions about his or her own body to situations in which the treating physician is proposing some affirmative course of action. These decisions appear erroneous. Under a negligence theory, the disclosure duty is imposed not to protect the patient from a nonconsensual touching, but rather, to protect the patient’s right to medical self- determination. To make decisions about what shall be done and what shall not be done to their bodies, patients need information on the risks of and alternatives to the nontreatment option. They need that information, not only when they refuse a treatment proposed by the physician, but also when the physician proposes no treatment. Although a physician’s “decision” to prescribe bed rest instead of surgery or to order some diagnostic tests but not others may conform to acceptable medical practice and thus not constitute malpractice, the physician’s professional duties to the patient are not circumscribed by his or her clinical judgment calls. The physician also owes the patient an independent duty of disclosure. If, as the Canterbury court announced, and numerous other courts echoed, “the patient’s right of self-decision shapes the boundaries of the duty to reveal,” the physician should be obligated to disclose information about alternative treatment options—including surgery and diagnostic testing—that the physician is not recommending. That information is not only material to the patient’s decision, it is often critical to that decision. The decision on what treatment, or nontreatment, is acceptable belongs to the patient 394 Naimark et al. whose life will be affected by that decision, not to the physician who can only recommend options based on his or her professional expertise. Because the patient is entitled to make the decision, the physician should be obligated to disclose the information that the patient needs to make that decision. In recent years, some courts have defined “material risks” broadly, requiring physicians to disclose not merely the risks and alternatives inherent in medical procedures that the physician might not recommend but that the patient might want to consider, but, in addition, other risks that emanate directly from the physician. For example, some courts have required surgeons to inform patients of the physician’s chronic alcohol abuse or HIV-positive status. These physical infirmities may increase the risk of harm to the patient and must be disclosed as material to the patient’s judgment to accept or reject treatment from that surgeon. Other physician-specific factors raise a similar concern. In one case, a patient consented to basilar bifurcation aneurysm surgery (a clipping of an aneurysm at the rear of the plaintiff’s brain) and was rendered an incomplete quadriplegic. The Supreme Court of Wisconsin ruled that information about the neurosurgeon’s limited experience in performing such surgery and the dif- ficulty of the operation should have been disclosed because it was material and would have been considered by the reasonable patient (7). In Moore vs Regents of University of California (8), the California Supreme Court held that to obtain a patient’s informed consent, the physician must also disclose any financial or other interest that the physician has that conflicts with, or even potentially conflicts with the physician’s fiduciary duty to that patient. In deciding whether to consent to proposed treatment, a patient would want to know of any research or economic interest extraneous to the patient’s health that may have affected the physician’s judgment to recommend that treatment, even if that conflicting interest was not consciously considered. In Moore, for example, the plaintiff alleged that the surgeon’s research interest in the patient’s rare blood and the surgeon’s economic interest in patenting a cell line from the plaintiff’s cells may well have influenced the surgeon to recommend a splenectomy, the surgical removal of the plaintiff’s spleen. A federal appeals court, applying Minnesota law, went one step further. The court imposed a duty on physicians to disclose conflicting loyalties even when they do not recommend any affirmative course of treatment. In Shea vs Esenstein (Shea II) (9), a 40-year-old patient was experiencing symptoms of heart disease. His family doctors did not refer him to a cardiologist. When the patient’s symptoms did not improve, the patient offered to pay for the referral, but “his physicians persuaded him to trust their judgment that neither his age nor his symptoms justified a visit to a cardiologist.” The patient suffered a heart attack and died. In a wrongful death suit, the plaintiff alleged that the physicians failed to disclose financial incentives in the health maintenance organization (HMO) contract designed to mini- mize referrals to specialists and that if the patient had known of those incentives, he would not have trusted the physicians’ medical advice but instead would have obtained the opinion of a specialist at his own expense. Even though the jury found that the physicians had not committed malpractice in the care and treatment of the patient, the court upheld the plaintiff’s separate claim for the tort of neg- ligent misrepresentation. Under Minnesota law, physicians have a state-imposed ethical duty to disclose conflicts of interests to their patients. Self-serving financial incentives, such as those found in an HMO contract, conflict with the physician’s duty of loyalty to the patient’s medical welfare, and must be revealed. Although these case precedents for an expanded disclosure duty are important forays for future development of the law, they have not been universally, or even generally, accepted in American jurisprudence. For each case discussed here, there are others, often numerous others, that have reached a contrary result. Some courts have ruled that a physician’s medical condition, including his or her addiction to alcoholism or drugs, or the physician’s HIV-positive status, need not be disclosed. Some courts have held that a physician’s inexperience in performing the particular surgery proposed to the patient need not be disclosed. Courts that restrict the physician’s disclosure duty to the risks inherent in the physician’s proposed procedure deny patients the information they need, and, in fact, must have, in order to decide whether Informed Consent and Competency 395 to trust their doctor. A patient’s trust cannot be purchased with concealment or subterfuge. It can only be developed through honest communication. “[D]isclosure and consent,” wrote Dr. Jay Katz, “do not abolish trust. Disclosure and consent only banish unilateral, blind trust; they make mutual trust possible for the first time” (10). When courts do not require that communication, their narrowly crafted informed consent doctrine does not shield patients from their doctors’deceptions; it leaves them naked and exposed. Competency Competency as a Requirement for Giving or Withholding Informed Consent A patient’s informed consent to treatment is not required if an emergency arises that requires immediate medical attention and the patient is not competent to give or withhold consent to that treatment. For example, if at the scene of an auto accident, a person lays unconscious and bleeding to death, the law presumes that the person would consent to treatment necessary to save his or her life. The law makes this presumption because a reasonable person faced with the need for immediate life-saving treatment would authorize that treatment if the person were competent to make the decision at the time. The law protects the physician who acts in an emergency to save a life, even if subsequently facts become known that indicate that the unconscious person would not have consented to medical treatment. Incompetence, however, is not limited to unconscious adults. Children, because of their youth and inexperience, are considered mentally unable to make treatment decisions, and in the absence of a life-threatening emergency, informed consent of a parent or legally responsible guardian is required for the physician to act. The parent or guardian makes a substituted judgment for the child, either accepting or rejecting treatment on the child’s behalf. Adults, too, especially if they suffer from a severe mental disorder, may be incompetent to make a treatment decision. If the condition is likely to be of a lengthy duration, the court may appoint a guardian for the person with authority to make decisions for him or her. In essence, the guardian of the adult acts in the capacity of a parent for a child, until such time as the ward is restored to competency. Civil Commitment of Mentally Disordered Persons and the Right to Refuse Treatment When a person with a severe mental disorder is so incapacitated that he or she is either dangerous to himor herself or to others, or is unable to provide for the basic necessities of life, such as food, clothing, and shelter, that person may be civilly committed and placed in a mental hospital. Can the treating physician require the civilly committed person to take psychotropic medication to eliminate symptoms and improve the patient’s condition or does the patient, relying on the doctrine of informed consent, have a right to refuse its administration? The issue has generated great controversy between psychiatrists and lawyers. Psychiatrists assert that the very purpose of placing the involuntarily committed person in a mental hospital is to treat the person’s mental disorder so that the person’s freedom can be restored. Lawyers contend that even involuntarily committed mental patients retain rights, including the right to refuse treatment, that should not be infringed on without proof of the necessity to do so. Dr. Alan Stone, noted Harvard psychiatrist and former president of the American Psychiatric Association, has acknowledged that the legal justifications for the right to refuse treatment are so “clear and compelling” that psychiatrists should accept the right’s existence (11). Dr. Stone conceded that a mentally disordered person’s refusal of psychotropic medication is merely one example of refusal of medical treatment by any ill person. In a treatment refusal situation, the doctrine of informed consent restricts the state’s authority to intrude on the individual’s autonomy. Only when the individual, whether from mental disorder or other cause, is unable to make competent decisions, may another’s judgment be substituted. Although incompetence negates autonomous decision making, incompetence is not established solely by proof of mental disorder or proof that treatment is clini- cally indicated. Similarly, incompetence is not established by proof that the mentally disordered individual meets the civil commitment criteria and is subject to involuntary detention. In most states, the laws do not 396 Naimark et al. presume or require incompetence as a criterion for civil commitment. The mentally disordered person’s dangerousness to self or others, or inability to provide for basic necessities, justifies a deprivation of liberty but does not justify a deprivation of the patient’s right to refuse treatment or other rights. A person may be incompetent to provide for basic necessities, but be competent to understand the risks and benefits of medication that is proposed to treat his or her condition. In other words, incompetence for one purpose does not equal incompetence for another. Only when a person’s incompetence to make the treatment decision is established can another’s judgment be substituted. Most states have recognized the right of competent, though involuntarily committed, patients to refuse treatment. The United States Supreme Court has acknowledged that even mentally ill prison- ers have a “significant liberty interest in avoiding the unwanted administration of antipsychotic drugs” (12). The states, however, have divided almost equally on the question of procedural protections necessary to enforce that right. Some states use a medical decision-maker model, allowing a staff psychiatrist or hospital committee to make an informal decision of the patient’s competence. Others, including the nation’s five most populous states (California, Texas, New York, Florida, and Illinois), require a formal hearing on the patient’s competence before a judge or other independent, law-trained decision maker. In these states, neither mental disorder alone, nor a decision to civilly commit the person, equates to a finding of incompetence to make treatment decisions. Before treatment may be imposed over the objection of a patient, even an involuntarily civilly committed mental patient, the judge must find that the patient lacks the mental capacity to make treatment decisions (i.e., to weigh the risks, benefits, and alternatives to the proposed medication). Competent civilly committed patients, however, do not have an absolute right to refuse antipsychotic medication. The state does have a legitimate interest in protecting other patients and staff from dangerous mental patients. Hospital staff may respond to threatening situations by segregating the potentially dangerous patient or using physical restraints. In an emergency situation, when the patient presents an immediate danger to him or herself or to others, the patient may be involuntarily sedated. Nevertheless, this exercise of the state’s police power must end when the emergency that warranted this exercise of authority ends. If a person’s “significant liberty interest in avoiding the unwanted administration of antipsychotic drugs” is to have any meaning at all, an assertion that the patient was civilly committed as being too dangerous to live in society, or that he or she presents a generalized danger to other patients or staff in the institution, does not justify nonemergency, coerced treatment of a competent civil patient. Assessing the Competence of Civilly Committed Mental Patients to Refuse Psychotropic Medication In Reise vs St. Mary’s Hospital and Medical Center (13), the California Court of Appeal added California to the list of states that recognize the right of a competent, but involuntarily committed mental patient to refuse psychotropic medication in nonemergency situations and require a formal court hearing to determine if the patient is incompetent. The facts of the case demonstrate why the court rejected the medical decision maker model as an inadequate protection of the competent patient’s right to refuse. Eleanor Riese was admitted to St. Mary’s Hospital as a voluntary patient. Previously, she had been treated for chronic schizophrenia with Mellaril ® , a psychotropic medication. As a result of that earlier treatment, her bladder had been severely damaged. Nevertheless, the treating physician prescribed Mellaril, and she consented to its use. Although she complained of dizziness and dry mouth and stated that she was receiving too much medication, her concerns were ignored and the dosage was not reduced. When she protested and refused medication, she was forcibly injected and committed as an involuntary patient. Ms. Riese brought a class action on behalf of patients involuntarily committed under California’s 72-hour treatment and evaluation detention and its 14-day inten- sive treatment certification. In upholding the right of involuntary civil patients to exercise informed consent, the Reise court, borrowing liberally from a text for psychiatrists prepared by Drs. Thomas Gutheil and Paul Appelbaum Informed Consent and Competency 397 (14) that identified three factors that judges should consider in assessing the competence of a patient’s medication refusal. First, the judge should consider “whether the patient is aware of his or her situation.” The court offered one example of such awareness: if the judge believes that the patient is psychotic, does the patient acknowledge the psychosis? The court’s singular example seems unfortunate. A doctor, who has diagnosed a patient’s mental disorder and made a clinical judgment on what medication is appropriate to treat that disorder, may view the law’s requirement of obtaining a patient’s informed consent as an unwelcome and unnecessary impediment to the doctor’s authority to make the treatment decision. If the patient does not readily acknowledge that he or she has a mental disorder and acquiesce in the doctor’s recommendation, the doctor may quickly decide, perhaps too quickly, that the patient is incompetent to make the treatment decision. After all, the doctor may assert, a patient who does not acknowledge having a mental disorder is unable to appreciate the benefits of the medication prescribed to treat that disorder. Although denial of mental disorder may be a factor in assessing a person’s awareness of the situation, it is certainly not the exclusive measure. Even if a person denies having a mental disorder, he or she is aware of the situation if the person knows that he or she is involuntarily confined in a mental hospital, that the doctor has diagnosed the person as having a mental disorder, that the doctor has prescribed psychotropic medication to treat the disorder, that the doctor believes the medication will benefit the person by relieving symptoms, and that the person is refusing the medication because of concern about medication side effects that have been previously experienced. Additionally, a person who denies having a mental disorder may be willing and able to acknowledge having a problem in “nonmedical” terms. The person, for example, may be denying a mental disorder in order to maintain control over his or her life and to avoid being thrust into the dependent role of a mental patient. The person may be denying mental illness in an attempt to avoid a catch-22 situation (i.e., by admitting mental disorder the patient strengthens the psychiatrist’s assertion that the prescribed medication is the appropriate remedy). Denial of mental illness may be a rational, although hostile, reaction to the family members or the police who initiated the involuntarily commitment process, to the judge who ordered the patient committed, or to the psychiatrist who now seeks to impose treatment over the patient’s objection. Second, the judge should consider “whether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention.” Here, too, the Riese court gave an example. Even if the patient is acutely psychotic, the patient should understand that dystonic reactions are a risk, that resolution of the psychotic episode is a benefit, and that psychotherapy, milieu therapy, and possibly electroconvulsive therapy are alternatives. This example, suggested by Drs. Gutheil and Appelbaum, appears helpful. Nevertheless, one can question whether treating physicians typically consider alternative therapies as viable substitutes for psychotropic medication. In their eagerness to impose their treatment preference, physicians may be unwilling to consider patient objections to that choice and to suggest other alternatives that might be acceptable to their patients. Third, the judge should assess the patient’s ability “to understand and to knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought (§ 5326.2) and otherwise participate in the treatment decision by means of rational thought processes.” The court cited with approval a suggestion offered by Drs. Gutheil and Appelbaum that the patient should be assumed to be utilizing rational thought processes in the absence of proof clearly linking delusional or hallucinatory perceptions to the individual’s ultimate decision. An assessment of a patient’s ability to understand information begins with the information that the patient has been given. Although the Riese court did not itself discuss what information must be provided, it incorporated, by specific reference, California Welfare and Institutions Code section 5326.2. That statute itemizes information that must be given to the patient in a clear and explicit manner in order to obtain a voluntary and informed consent to treatment. Among the required disclosures are the following: 1. The nature and seriousness of the patient’s mental disorder that serves as a reason for treatment. 2. The nature of the proposed treatment, including probable frequency and duration. 398 Naimark et al. 3. The degree and duration of improvement or remission anticipated with or without such treatment. 4. The nature, degree, duration, and the probability of side effects and significant risks of the proposed treatment and how and to what extent they may be controlled, if at all. 5. The reasonable alternative treatments, and why the physician is recommending this particular treatment. 6. The patient has the right to accept or refuse the proposed treatment, and if the patient consents, he or she has the right to revoke the consent for any reason and at any time prior to or between treatments. A study of competency hearings (15) reveals that often, psychiatrists do not disclose to patients the information that the law requires them to disclose. Often, psychiatrists only inform patients about medication benefits. Even when they disclose risks, psychiatrists do not divulge “all information relevant to a meaningful decisional process”—the test of disclosure required to obtain a patient’s informed consent. Sometimes psychiatrists speak about risks in general terms, informing the patient that any medication can have detrimental as well as beneficial effects. Of course, they will assert, the medication is being prescribed for its beneficial effects. At times, psychiatrists discuss some side effects but not others. Typically, a psychiatrist will inform the patient of non-neurological side effects, such as sedation or anticholinergic side effects, such as dry mouth, blurred vision, urinary retention, and constipation, but will omit any discussion of neurological side effects such as dystonia, Parkinsonism, akathisia, akinesia, and tardive dyskinesia. Obviously, if the risk of non-neurological side effects is material to a patient’s decision, the risk of neurological side effects is likely to be even more so. The study concluded, “the failure of psychiatrists to inform patients adequately of medication risks and alternatives was not limited to a few isolated incidents. It was pervasive.” The author of the competency study suggested that in a proceeding to consider whether the patient is competent to refuse psychotropic medication, the judge can and should appropriately respond to psychiatrist nondisclosure by finding the patient competent. By failing to inform the patient, and failing to provide the judge with evidence that the patient is unable to understand and to evaluate that information, the psychiatrist has not sustained the burden of proving by clear and convincing evidence that the patient is incompetent. If the patient is found competent, then under traditional legal princi- ples, the psychiatrist commits the tort of battery if he or she administers psychotropic medication over the patient’s objection, and the psychiatrist can be held liable for punitive as well as compensatory damages. Liability for the tort of negligence is limited to situations in which a competent patient consents to the administration of psychotropic medication but suffers an injury from a risk of the drug that was not explained to him or her. MEDICAL ASPECTS OF INFORMED CONSENT AND COMPETENCY Informed Consent In clinical as well as research settings, informed consent is one of the cornerstones of ethical practice (16,17). The consent process epitomizes professional ideals and protects individual rights. Too often, however, in part due to the many competing demands of medical care and research, the informed consent discussion “morphs” into a procedure done to the patient or research participant (i.e., “con- senting” the patient). This phrasing implies that the patient is a passive recipient of information who then acquiesces to the proposed test, treatment, or research protocol. Viewed through a different lens, however, the informed consent process presents an ideal opportunity for the patient and the physician or investigator to participate in a meaningful discussion of alternatives and their potential risks and benefits. In this process, the patient or participant becomes more of a partner with the physician in management of his or her own care. In addition to providing information, the overall process then serves as an optimal context for clarifying patient preferences and values, which leads to authentic decision- making. Ultimately, it is the patient who is the final decision maker. In the research context, informed consent also embodies the careful attention of investigators and ethics review boards to address concerns about research with human subjects. The need to protect and respect human subjects by obtaining informed consent is not merely an historical artifact related to Informed Consent and Competency 399 [...]... 22, 105 –118 antisocial, 109 , 112–113 avoidant and dependent, 115–116 borderline, 109 , 113–114 antipsychotic medications, 114 diagnosis, 106 107 , 106 t DSM-IV, 107 t frontal lobe injury, 108 histrionic, 114 narcissistic, 114–115 neuropsychiatric perspectives, 107 109 paranoid, 110 111 422 passive–aggressive and depressive, 117– 118 pharmacological treatment, 110t prevalence, 108 f psychotherapy, 109 – 110. .. Ajuriaguerra, Julian, 14 Decision-making capacity informed consent, 400–401 Deep brain stimulation (DBS), 357–358 Parkinson’s disease, 173 Delirium, 307–311 vs aphasia, 310 Index defined, 307 differential diagnosis, 310 DSM-IV, 308t ECT-induced, 332 history and examination, 308–309 laboratory studies, 309 prevalence, 308 vs schizophrenia, 310 stroke, 310 surgical patients, 310 symptoms and signs, 307–308... A, Roth L, Lidz C Toward a model of the legal doctrine of informed consent Am J Psychiatry 1977;134:285–289 Roberts LW Informed consent and the capacity for voluntarism Am J Psychiatry 2002;159:705–712 Grisso T, Appelbaum PS Comparison of standards for assessing patients’ capacities to make treatment decisions Am J Psychiatry 1995;152 :103 3 103 7 Carpenter WT, Conley RR Sense and nonsense: an essay on... provide the information necessary for the patient to make an informed decision cannot be countenanced REFERENCES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Schloendorff vs Society of New York Hospital, 105 N.E 92 New York; 1914 Salgo vs Leland Stanford Jr University Board of Trustees, 317 P.2d 170 California; 1957 Natanson vs Klein, 350 P.2d 109 3 Kanas;... Bioinformational theory of emotion, 44 Biologically informed psychotherapy for depression (BIPD), 365 BIPD See Biologically informed psychotherapy for depression Bipolar disorder elderly, 280–286 BIS See Behavioral inhibition system Body dysmorphic disorder, 73, 354 Borderline personality disorders, 109 , 113– 114 antipsychotic medications, 114 Boston Medico-Psychological Society, 7 Boston Society of Psychiatry. .. choices would affect his or her everyday life or activities (16) Informed Consent and Competency 403 Instruments Several instruments have been designed to assess decision-making capacity for treatment and research Of these, the most thoroughly studied have been the MacArthur Competence Assessment Tools (the MacCAT-T for treatment and MacCAT-CR for clinical research) These instruments were derived from a... obstructive pulmonary disease Cornell Scale for Depression in Dementia (CSDD), 130 Cortico-limbic network model major depression, 355–356 Corticosteroids psychiatric symptoms with, 324 Cortico-striato-thalamo-cortical circuits (CSTC), 353–354, 354f Index Corticotropin-releasing hormone pathway, 45 Cosgrove, G Rees, 348 Couples therapy mood disorders, 367–368 Crises-prone individual identification of, 380... Structured Clinical Interview for DSM-IV, 139 STT brachytherapy, 347f Subcaudate tractotomy, 344, 345 Substance abuse DSM-IV, 94t Huntington’s disease, 235 negative effects, 97–98 Substance dependence defined, 93 DSM-IV, 94t negative effects, 97–98 Substance-induced anxiety disorder, 54–55 Substance use disorder cognitive-behavior therapy, 370 motivational interviewing, 371 12-step facilitation, 371 Suicide,... approaches Int J Law Psychiatry 2001;24:267–283 Informed Consent and Competency 405 35 Janofsky JS, McCarthy RJ, Folstein MF The Hopkins Competency Assessment Test: a brief method for evaluating patients’ capacity to give informed consent Hosp Community Psychiatry 1992;43:132–136 36 Glass KC Refining definitions and devising instruments: Two decades of assessing mental competence Int J Law Psychiatry 1997;20:5–33... undermines patient autonomy) Testing for comprehension can be done fairly quickly and efficiently using open-ended questions followed by closed-ended questions When doubt exists about the adequacy of decision-making capacity, numerous instruments exist to assist with the capacity assessment; these are described in more detail below Voluntariness The second requirement for informed consent mandates that the . psychiatric outpatients. In a study of decision-making capacity for research in outpatients with major depression, Informed Consent and Competency 401 for example, study participants performed quite well on measures. decision-making capacity for treatment and research. Of these, the most thoroughly studied have been the MacArthur Competence Assessment Tools (the MacCAT-T for treatment and MacCAT-CR for clinical. 55 Bini, Luciano, 12 Bioinformational theory of emotion, 44 Biologically informed psychotherapy for depression (BIPD), 365 BIPD. See Biologically informed psychotherapy for depression Bipolar

Định dạng
Số trang	37
Dung lượng	250,75 KB