Decision making in the hospital setting holds capacity and conservatorship
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Decision-Making in the Hospital Setting: Holds, Capacity, and Conservatorship. J. Jewel Shim, MD Director, Psychiatry Consultation and Liaison Service UCSF Medical Center. Objectives. Review psychiatric holds Differentiate between competence and capacity

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Decision making in the hospital setting holds capacity and conservatorship

Decision-Making in the Hospital Setting: Holds, Capacity, and Conservatorship

J. Jewel Shim, MD

Director, Psychiatry Consultation and Liaison Service

UCSF Medical Center


Objectives

Objectives

  • Review psychiatric holds

  • Differentiate between competence and capacity

  • Understand the four elements of capacity

  • Discuss issues with capacity in special populations

  • Know the two kinds of conservatorship


Introduction

Introduction

  • Medical decision making is a constant occurrence in acute-care hospitals

  • At times, physicians must balance what unfortunately become competing interests; caring for patients and preserving life while upholding patients’ rights of self-determination and autonomy to make healthcare decisions

  • It is important for physicians to be knowledgeable about key issues related to decision making in the hospital setting


Psychiatric holds

Psychiatric Holds


Decision making in the hospital setting holds capacity and conservatorship

What is the appropriate next step when a patient wants to leave AMA?a.Call securityb.Call the patient’s familyc.Call a psych consultd. Evaluate the patient’s capacity to determine his/her disposition


Decision making in the hospital setting holds capacity and conservatorship

Who can place a 5150?a.police officerb.psychiatristc.neurologistd.social workere.any attending physician


Once on a 5150 a patient can be treated even though he she refuses treatment a true b false

Once on a 5150, a patient can be treated even though he/she refuses treatmenta.Trueb.False


Psychiatric holds clarified

Psychiatric holds clarified

  • 5150/72 hour hold

    • Based on at least one of 3 criteria defined by LPS Act

      • Danger to self

      • Danger to others

      • Grave disability (food, clothing, shelter)

    • Can be used to hold patients in the hospital against their will (UCSF Parnassus)

      • It must be demonstrated that the patient lacks capacity to decide their disposition

      • Failure to care for one’s bodily integrity can be included under “grave disability” not “danger to self”

      • Does not allow patients to be treated against their will


Psychiatric holds cont

Psychiatric holds (cont)

  • 5150 (cont)

    • Can be placed by a police officer, psychiatrist, or other clinician that has specific training/credentials

    • Hold must be dated and timed

      • If there is an ED hold present, the hold starts when the ED hold was initiated

  • ED Hold

    • 24 hour hold

    • Initiated by an ED physician

    • Based on same criteria as a 5150

    • If initiated, starts the “clock”


Psychiatric holds cont1

Psychiatric holds (cont)

  • 5250

    • 14 day continuation of 5150

    • Same criteria as 5150

    • Can be started even if original 5150 was discontinued, but must be back-dated to when 5150 would have expired

    • Patients have opportunity to demand physicians show probable cause (go to court to dispute the hold)


An aside on involuntary medications

An aside on involuntary medications

  • Riese decision

    • Case law based on Riese v. St. Mary’s Hospital (1989) decision

    • Involves a capacity evaluation specifically to refuse psychotropic medications

    • Allows clinicians to administer psychotropic medications against a patient’s will

      • Does not apply to non-psychotropic medications

    • Patients must be on a psychiatric hold concurrently

    • Does not extend to emergent administration


Competency and capacity

Competency and Capacity


Competence and capacity are interchangeable terms that have the same definition a true b false

Competence and Capacity are interchangeable terms that have the same definitiona. Trueb. False


Decision making in the hospital setting holds capacity and conservatorship

The following is true of capacity:a.A declaration that a patient lacks capacity is permanentb.An assessment of capacity covers all medical decisionsc. Demented patients by definition lack capacityd. If a patient lacks capacity in one area he/she lacks capacity in all areas


Decision making in the hospital setting holds capacity and conservatorship

or


Competence vs capacity

Competence vs. Capacity

  • Competence is a legal term used to describe a person’s global ability to make decisions

    • Decided by a court/judge

    • Permanent unless overturned by a court/judge

    • A guardian or conservator is appointed to make decisions for the person

  • Capacity is a clinical assessment of a patient’s ability to make specific healthcare decisions

    • Evaluated by physicians

    • Specific, not global

    • Not necessarily a permanent assessment

      Ganzini et al., 2005


Capacity

Capacity

  • No formally accepted clinical standard

  • A variety of instruments exist, but are not widely used in clinical practice

    • Likely a more reliable assessment than MD judgment

    • Validity yet to be established in non-research populations

    • MacArthur Competence Assessment Tool for Treatment (MacCAT-T) (Grisso & Appelbaum, 1995)


Capacity1

Capacity

  • Decision making capacity evaluated along 4

    standards found in the law (Appelbaum and Grisso, 1988, 1995)

    • Pt communicates a clear and consistent choice

    • Pt understands the situation

    • Pt understands the consequences of his/her choice, including risks/benefits/alternatives

    • Pt rationally manipulates information


Capacity2

Capacity

  • Different courts may emphasize different standards

  • Patients may demonstrate varying degrees of ability among the 4 standards

    • Need to determine acceptable threshold

  • Universally accepted that patients should be evaluated across all 4 standards

  • Patients must meet acceptable threshold on all 4 standards


Capacity3

Capacity

  • Most often evaluated when patient is refusing to follow physician recommendation

    • Cannot assume that patient has capacity just because they are in agreement

    • Standard of “proof” increased (“sliding scale”)

      • When the complexity and seriousness of the issue and risks are significant

      • When the patient’s decision is in opposition to what is recommended

    • Case of Mr. R


Case of mr r

Case of Mr. R

Pt is a 61 yo WM with h/o chronic schizophrenia self presented with 4 day h/o abd swelling and distention. During the course of his work-up, a large 10cm infrarenal AAA was discovered. Vascular consultation was requested, and pt was offered surgical intervention, which he refused. Psychiatry consultation was requested to evaluate pt’s capacity to refuse this procedure. On exam, pt was minimally interactive and lethargic, but consistently stated that he did not want the surgery. He was able to state understanding of his condition and that he might die if he did not have the surgery. However, when asked why he was declining the intervention, pt stated “I just don’t want it.” He was unable to elaborate despite many different approaches to clarify his reasoning across multiple visits. Pt repeatedly asked to go home. Because he was deemed a poor surgical candidate due to his endstage liver disease, the primary team (Medicine) felt that the patient should not have the surgery, and his wishes to go home should be honored.


Capacity4

Capacity

  • Need to think through the ultimate goal of evaluating capacity in each case

    • May not achieve desired outcome, i.e., compliance with outpt medications

    • Achieving goal may require steps that are not practical or easily accomplished, i.e., forcing someone to wear nasal cannula

    • Must anticipate that there will be other, related outcomes, i.e., reduced quality of life, increased distress and potential trauma to patient and family, deterioration of the physician-patient alliance


Capacity5

Capacity

  • Specific to a particular question or issue, not global

    • Pts can have capacity in one area and not in another

    • Case of Ms. S

  • Patients with cognitive or mental impairments do not necessarily lack capacity

    • But, may be more likely to lack capacity

  • Patients can regain capacity


Case of ms s

Case of Ms. S

Pt is a 66 yo DWF with h/o chronic schizophrenia, large uterine fibroids, and chronic vaginal bleeding adm from OSH for treatment of bilateral LE pressure necrosis ulcers. Pt had been found down in her trailer by her landlord after about 3 days. It was thought that pt, weak from blood loss from her fibroids, had fallen and was unable to get up. Pt consented to work-up and treatment for her LE ulcers but refused work-up for her uterine bleeding/mass. Psychiatric consultation was sought to evaluate capacity to refuse this work-up. On exam, pt continued to refuse work-up, and said that she does not have cancer, because “the voice of God” told her. She further stated that she does not believe in “allopathic medicine” and will treat the problem with her own homeopathic remedies. However, when asked why she is consenting to treatment for her LE ulcers, pt replied, “I would lose my legs.” She was unable to reconcile this contradictory statement with her refusal to consent to w/u for her uterine mass.


Capacity6

Capacity

  • Decision should in general be consistent with patient’s prior known values/beliefs

  • Efforts should be made to help patients perform their best

    • Multiple explanations

    • Having familiar, trusted people present (family, caregivers)

    • Examiner of similar ethnic/cultural background

    • Translator if appropriate


Capacity7

Capacity

Professional duty

Patient autonomy Legal system


Capacity8

Capacity

  • The actual decision itself is not as important as the process by which the decision was made

  • Difference between lack of capacity and poor judgment

    • Whether the decision would be considered by most people to be the wisest or most correct choice is not required for capacity (Grisso and Appelbaum, 1998)

    • Conflict between preserving personal autonomy and upholding “public interest” in preserving life (Hurst, 2004)

      • Seat belt, motorcycle helmet, cell phone use laws

    • Case of Mr. F


Case of mr f

Case of Mr. F

Pt is a 71 yo DAAM with DM2, CAD, CHF, HTN, chart h/o schizoaffective disorder/schizophrenia, long history of medication and f/u noncompliance, BIBA to ED with c/o CP. Pt has a h/o multiple presentations to the ED with similar sx and often refuses w/u and demands to leave AMA. As in the past, pt refused all attempts at work-up or physical exam and demanded food. Psychiatric consultation was requested to evaluate capacity to refuse work-up of acute CP. EMS Captain T, who is familiar with pt, stated that pt has been inadequately clothed (wearing hospital pajamas), eating out of garbage cans, and soiling himself on a regular basis. He recommended conservatorship. On exam, pt refused to discuss the elements of his current presentation or proposed treatment. He denied hallucinations, there was no evidence of thought disorder, and no delusional content was elicited. Per collateral, pt is not in psychiatric treatment but was conserved for 2 months one year ago. Pt however, eloped from the L-facility and conservatorship was not re-instated/further pursued.


Who can determine capacity a a psychiatrist b a neurologist c a judge d a jury e any md

Who can determine capacity?a.A psychiatristb.A neurologistc.A judged.A jurye.Any MD


Capacity9

Capacity

  • Can be evaluated by any MD

    • Psychiatrist evaluation is not required

    • Most often best assessed by primary clinicians caring for patient

      • Know the patient and his/her values system better

      • Are able to multiple evaluations over time

      • Are more familiar with procedure or issue proposed


When to evaluate capacity

When to evaluate capacity

  • Often this evaluation occurs unconsciously

  • Not practical to evaluate capacity formally for every decision a patient makes

  • Certain situations call for more explicit evaluation

    • Abrupt changes in mental status

    • When patients refuse treatment

    • When the proposed treatment has a higher risk/benefit ratio


When to evaluate capacity1

When to evaluate capacity

  • Certain situations call for more explicit evaluation

    • When patients have one or more risk factors for impaired decision making

      • h/o cognitive impairment

      • h/o mental illness

      • Current active psychiatric sx – depression, anxiety, psychosis

      • Patient is of a different culture

      • Patient does not speak English or has limited English skills

      • Patients who are involuntarily hospitalized

      • Age – older or younger (younger adult)


Capacity in special populations

Capacity in Special Populations


Case of ms j

Case of Ms. J

Pt is a 55 yo AAF with h/o AF, DM2, stroke on coumadin, and chart h/o psychotic disorder who self presented with back pain, and found to have subtherapeutic INR. Pt was adm for adjustment of anticoagulation therapy. Pt has a h/o noncompliance with attending Coumadin clinic and with this medication. Psychiatric consultation was requested to conserve patient. Pt refused to be interviewed or discuss her care in any way.


Capacity when the patient refuses capacity evaluation

Capacity: When the patient refuses capacity evaluation

  • Cannot assume that the patient does not have capacity

  • Efforts should be made to identify a person with whom the patient feels comfortable discussing the issue


Capacity when the patient refuses capacity evaluation1

Capacity: When the patient refuses capacity evaluation

  • Weigh the risk to the patient if his/her decision is carried out

    • If high, then would proceed as if the patient lacked capacity

      • Explain this process to the patient

    • Balance this with considerations of

      • The potential harms to the patient, both short and long-term

      • The short and long term practicality of carrying out interventions against a patient’s will

        Hurst, 2004


Case of mr m

Case of Mr. M

59 yo WM with HCV cirrhosis, DM2, HTN, and chart h/o chronic paranoid schizophrenia self-presented with c/o abd, back, and eye pain with reduced visual acuity. Pt adm to Medicine for treatment of presumed SBP, ARF/CRF, and endophthalmitis. Pt however, refused paracentesis and intra-ophthalmic injection of abx. Treatment, though deemed to be urgent, was delayed in order to obtain psychiatric consultation to evaluate pt’s capacity to refuse these interventions. Pt able to discuss basics of his current medical conditions but unable to appreciate the consequences of his choice, nor able to discuss alternatives. He was unable to rationally explain his decision nor was he consistent in that he stated desire to get help for his conditions but refused to cooperate with proposed medical interventions.


Capacity and the psychiatric patient

Capacity and the psychiatric patient

  • Capacity is assessed in the same way with the same standards

  • Capacity determination is absolute (yes/no) regardless of cause of incapacity

  • Capacity may be restored with treatment of active psychiatric sx, if they are determined to be the cause of incapacity, and if intervention can be safely delayed

    • May request psychiatric consultation for guidance

    • Ultimately the responsibility of primary physician caring for patient


Capacity the emergent urgent situation

Capacity: The emergent/urgent situation

  • When capacity cannot be evaluated (i.e.,unconscious patient) and there are no readily available surrogates

    • Shoot first, ask questions later?

      • Intervention is not delayed to evaluate capacity to consent

    • Widely accepted standard: The two physician consent, “emergency privilege” (Derse, 2005)

      • 2 physicians need to independently agree and document that there is an imminent threat to life or limb and may proceed


Capacity the emergent urgent situation1

Capacity: The emergent/urgent situation

  • When capacity cannot be evaluated (i.e.,unconscious patient) and there are no readily available surrogates

    • Best interests standard

      • Based on best interests as a whole for patients

        • Maximizes overall/long-term benefits, minimizes burdens

        • Compares burdens, consequences, potential complications of treatment vs. non-treatment

      • What a “reasonable person” would consider acceptable under similar circumstances

      • Can be decided by the physician

        Grisso and Appelbaum, 1998, Kopelman, 2007


Conservatorship

Conservatorship


Decision making in the hospital setting holds capacity and conservatorship

Ms. P is an 85 yo WWF with h/o DAT, HTN, COPD and CAD. She was admitted with dehydration, ARF, and FTT. Pt lives alone, and it was determined that pt has not been eating or leaving her home because she believes her son has been poisoning her food and is trying to kill her. She has also stopped paying her bills, taking all of her money out of her bank account and hiding it under her mattress because she fears her son is also after her money. SW states “You have to conserve Ms. P.” Which type of conservatorship is most appropriate for Ms. P?a.Probate conservatorshipb.LPS conservatorship


Decision making in the hospital setting holds capacity and conservatorship

Probate conservatorship and LPS conservatorship confer the same powers to the conservatora.Trueb.False


Conservatorship1

Conservatorship

  • Two “tracks”

    • Probate conservatorship

    • LPS (Lanterman-Petris-Short Act)

  • Choice of track depends on nature and etiology of incapacity

  • Powers of conservator

    • Must be petitioned for and specifically granted

    • Person

      • Medical

      • Psychiatric

      • Medications

    • Estate (financial)


Probate conservatorship

Probate Conservatorship

  • Patient deemed to be incompetent to make decisions in regard to person and/or estate

    • “clear and convincing evidence”

  • Usually in cases of dementia or other organic brain disorders

    • Can last indefinitely

    • Court reviewed every 2 years

  • Often a family member or close associate of patient assumes role of conservator


Probate conservatorship1

Probate Conservatorship

  • Specific powers of conservator must be established by the court

    • Does not include mental health treatment

  • Placement can be an issue


Lps conservatorship

LPS Conservatorship

  • Based on Lanterman-Petris-Short Act enacted July 1, 1969

  • Patient is demonstrated as gravely disabled as a result of a mental disorder or chronic alcoholism

    • “beyond a reasonable doubt”

  • Conservatorship is for a one year term and can be renewed

    • Not permanent

  • Patients have opportunities to dispute conservatorship


Lps conservatorship1

LPS Conservatorship

  • Conservators are most often court-appointed

    • Specific powers must be established

  • Patients are often initially placed in locked facilities (L-facility)

  • Conservator can decide to place patients in alternative, less restrictive settings


Summary

Summary

  • Decision making in the hospital setting is common and can encompass issues relating to patient autonomy, safety, and preservation of life, both in quantity and quality

  • Knowledge of holds, capacity, and conservatorship can help the clinician in his/her efforts to care for patients


References

References

1.Appelbaum PS, Grisso T: Assessing patients' capacities to consent to treatment. N Engl J Med 1988; 319(25):1635-8

2.Appelbaum PS, Roth LH: Clinical issues in the assessment of competency. Am J Psychiatry 1981; 138(11):1462-7

3.Behnke SH, Preis JJ, Bates RT. The Essentials of California Mental Health Law. New York: W.W. Norton & Company, 1998.

4.Binder RL, McNiel DE: Involuntary patients' right to refuse medication: impact of the Riese decision on a California inpatient unit. Bull Am Acad Psychiatry Law 1991; 19(4):351-7

5.Derse AR: What part of "no" don't you understand? Patient refusal of recommended treatment in the emergency department. Mt Sinai J Med 2005; 72(4):221-7

6. Ganzini L, Volicer L, Nelson WA, Fox E, Derse AR: Ten myths about decision-making capacity. J Am Med Dir Assoc 2005; 6(3 Suppl):S100-4

7.Grisso T, Appelbaum PS. Assessing Competence to Consent to Treatment. New York: Oxford University Press, 1988.

8.Grisso T, Appelbaum PS: Comparison of standards for assessing patients' capacities to make treatment decisions. Am J Psychiatry 1995; 152(7):1033-7

9.Hurst SA: When patients refuse assessment of decision-making capacity: how should clinicians respond? Arch Intern Med 2004; 164(16):1757-60

10.Iserson KV: The three faces of "yes": consent for emergency department procedures. Am J Bioeth 2007; 7(12):42-5; discussion W3-4

11.Kopelman LM: The best interests standard for incompetent or incapacitated persons of all ages. J Law Med Ethics 2007; 35(1):187-96

12.Roth LH, Appelbaum PS, Sallee R, Reynolds CF, Huber G: The dilemma of denial in the assessment of competency to refuse treatment. Am J Psychiatry 1982; 139(7):910-3

13.Vellinga A, Smit JH, van Leeuwen E, van Tilburg W, Jonker C: Instruments to assess decision-making capacity: an overview. Int Psychogeriatr 2004; 16(4):397-419


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