Documenting Capacity
“Psychologists/neuropsychologists faced with evaluating a patient’s capacity to consent to (or dissent/refuse) healthcare need to consider all four dimensions of this construct: Understanding, Appreciation, Reasoning, and Expression of a Choice.”
While the ER is quite a different environment than the psych floor or a psychiatrist's office, the principles of determining a patient’s capacity to make medical or healthcare decisions remain the same as stated above. Additionally, we often need to determine all 4 aspects of capacity in a matter of seconds when patients are demanding to leave and could potentially need physical and chemical restraints.
This type of situation has been referred to as A Legal, Ethical, and Medical Minefield! “Often, we go in as physicians or advanced care practitioners thinking, ‘OK, I can just apply my medical knowledge on what medical issues are here,’ but [capacity] brings up a lot of other issues, and it’s something that we’ll face multiple times every shift for different reasons,” said Christopher B. Colwell, MD, FACEP, chief of emergency medicine at Denver Health.
For this reason, I recommend using a template, or script, that you can use in these situations as an excellent practice to ensure you do, and document, the right thing every time including the 4 core components of capacity.
Understanding
Appreciation
Reasoning
Ability to express a choice
In practice, I asses the above components of capacity in reverse order than above. I will break each down in the following paragraphs, but in many situations, this needs to be done in a matter of seconds with a very angry, potentially violent, patient.
Not a real image of my patient, but he was threatening security.
Before we start, here is an example to keep in mind from my last shift. The charge nurse asked me to quickly assess a patient who had been forced to go to the ER after making a suicidal statement. The patient said he had been drinking, and had some slight slurring, but was clearly able to walk out of the department. He denied any suicidal statements and was demanding to leave.
What do you do?
Let’s run through the 4 aspects of medicinal decision making capacity…
Can the patient express a choice? This is first because it is sometimes the only question you need to ask. If the patient is unconscious, obtunded, or incoherent from a stroke or TBI or intoxication, the patient does not have the capacity. Done. In the case above, however, the patient was clearly able to articulate a choice by yelling at security and staff.
Is the patient expressing logical or reasonable thoughts? If the patient is demanding to leave because the CIA has been taping their phone conversations about the president being an alien (true story), then, although they can clearly express their desires, they are not in touch with reality or showing reason or logic. When the patient is clearly paranoid or delusional, this is another stopping point in the process of assessing capacity. You do not need to proceed to step three. A difficulty here lies in determining if the patient is truly delusional or offering a scenario that could be true. I have seen a patient many times saying that a gang from another city is coming to kill him, which could possibly be true, but I know this to be a fixed delusion after seeing him over many years. In another real instance, I have had a patient demand to leave because a rival gang was coming to the ER to kill him after a knife fight. In that case, after assessing for life threats, and discussing with police, I determined this patient was expressing a very logical and reasonable desire to leave the ED. Getting back to the example above, the patient was making a logical argument that because he was not suicidal, and did not have any medical/psychiatric emergencies, he had the right to refuse care and leave.
Does the patient appreciate the potential consequences of their choice, such as refusing care? In this case, the patient was adamantly stating that there was no risk because he was not suicidal showing that he was considering the consequences of leaving the ER. I took this a step further, however, and asked the patient if he understood the consequences of allowing a suicidal patient to leave the ER. I wanted the patient to show that he could understand/appreciate the potential consequences of this action. It was a bit difficult to get the patient to state how dangerous this would be because he was insisting that he was not suicidal and his family had lied, but eventually, he did admit that it would not be a good idea to do this. In other situations, such as a patient refusing a transfusion due to religious reasons, it is important to discuss and document that the patient shows an understanding that refusal could lead to death or other adverse consequences. This is not, in practice, saying to the patient, “You know you could die, right?” Instead of listing these adverse outcomes and having the patient repeat them back to me, I recommend asking open-ended questions such as, “What do you think might happen to you if you don’t get this blood transfusion?” This can be especially important if family or loved ones are present so that the patient can articulate to everyone their decision to refuse the treatment with their understanding of the consequences. The answer might be, “Yeah, I know I could die.” which could be reasonable and important to document, but I suggest you take this further and have a discussion about other adverse outcomes such as brain injury or stroke, or heart attack that could occur because of lack of blood. It is possible that the patient survives but has permanent bodily harm or damage from refusal of care. Notice that I put these in plain terms that patients can understand, and I always tailor the potential consequences to the specific refusal of treatment at hand (more on this in the AMA post). Bottom line: a patient who is able to volunteer potential consequences of their actions shows capacity more clearly than just having them repeat back a list.
Does the patient understand the situation, including not just the risks we just discussed, but also potential alternatives? Getting back to the original example, I asked the patient if they were planning to get treatment in some other way. This is where the patient began talking about alcohol use and their desire to get into a detox program. According to the patient, his parents had lied about him making a suicidal threat in order to force him to the ER to get treatment for alcohol use disorder. He said he was actively pursuing placement in several detox facilities and did not need help, nor did he think it was fair that his parents could lie and get him sent to the ER against his will. Why was I not believing him that he would never harm himself and why was I forcing him to stay?
Good question. The patient was able to express a choice, not showing altered mental status or impairment. He was making logical arguments, understood the consequences of discharging a suicidal patient, and offered a reasonable alternative plan. Ultimately, however, I did NOT let the patient go. I had security force him to stay in a locked unit.
While this patient was clinically sober and showing the capacity to make a medical decision, the report of a possible suicidal statement or attempt was concerning enough to me that I thought he needed further evaluation and identification of potential risks before discharge, which is a whole other topic to discuss in a future post.
In summary, when in doubt about a patient’s capacity to make decisions about their care, apply the 4 principles above within the context of the specific encounter. There is no rubber-stamping capacity onto a patient, rather it is a discussion and a process. By using the order above, if you encounter a “no” at any point, you can stop and determine that the patient does not have capacity. To document, I use this…
“The patient shows medical decision-making capacity by clearly expressing their choice of ***. The patient is clinically sober and shows no impairment of judgment for medical or psychiatric reasons. The patient volunteered *** as a potential consequence of their choice, and I discussed with them other potential adverse outcomes including ***. This was witnessed by *** staff and [friend/family if possible]. While I do not agree with their choice, the patient offered a reasonable alternative of ***. Other alternatives of *** were discussed as well as stating that the patient could return to the ER at any time.”
Please leave comments below or email me if you have any suggestions or references to improve this medical decision-making capacity template. Thanks.
