General Concept of Refusal of Care
Patients in most circumstances have the right to refuse care. As an exception to this, physicians at times may use their judgment in the best interest of the patient to overrule the patient's refusal.
Table 90-1 Two Cases of Refusal to Consent for Care/AMA |Favorite Table|Download (.pdf)
Table 90-1 Two Cases of Refusal to Consent for Care/AMA
In the monthly ED quality improvement meeting 2 cases are referred from the hospital risk manager for review. Both concern the refusal of patients to accept care.
Case 1 involves a member of the hospital board of directors, a local business owner, who was being treated for chest pain. Initial vital signs and an EKG were normal. However, the patient would not allow further evaluation or hospital admission despite the emergency physician's concern that he was experiencing an acute coronary syndrome. The patient was feeling better and though aware of staff concerns, insisted on leaving to attend an important business meeting. He later returned, unstable, with an acute MI. Subsequently, many individuals in the hospital and community began asking questions.
Case 2 involved a 21-year-old trauma patient, involved in a high-speed car crash, who presented intoxicated, disoriented, and combative. The patient did not remember “everything that happened” in the ED because of his serious medical condition at the time of the accident. Nonetheless, he complains that he was forced to receive care that he did not want. He now has officially complained to the hospital and refuses to pay his hospital medical bills. Further, he is threatening to “sue” if his ED bill is not eliminated.
However, refusal to consent to medical care is often frustrating for emergency care providers. Each time a patient refuses care, normal operations are disrupted and there is a tremendous toll on ED staff's time and emotions. Refusals of care also place patients and institutions at risk of harm and litigation. Often ED and hospital leaders are challenged to manage concerns raised by these occurrences. Understanding certain legal principles make ED staff much more capable of managing these difficult events.
A basic way to view this complex situation (refusal to consent) is to understand the differences between the legal and medical concepts of competency and capacity. Put simply, the legal system determines competency; the medical system determines capacity.
The principles of law supported through court decisions have generally held that adults are masters of their own body and have the right to determine their own destiny in health-related matters. In general, adult patients may ethically and legally refuse treatment totally or in part. But the patient's right to agree to or refuse care depends on the ability of the patient to make decisions appropriately. The legal process refers to this ability as competency. Thus competent adults presenting for care may terminate or modify their requests for and compliance with care at any time. Incompetent patients may have some of those rights taken away from them by the legal system, allowing others to make substituted judgments on their behalf. The “others” may include medical professionals providing emergency care.
Assessing competency is the key to assisting the legal system in determining whether a patient's rights were adhered to or abused. Interestingly, competency is decided retrospectively when defined by courts and judges based on various forms of presented evidence. Much of that evidence comes from medical professionals, who assess capacity.
Physicians are skilled in assessing cognitive capacity—the ability of an individual to understand information, to form intentions on the basis of relevant facts, and to reach a rational decision based on the facts. In emergency settings, a patient's cognitive capacity can and must be rapidly assessed. This may be accomplished using various tools, that is, the mini-mental status exam (Box 90-5). This tool is very helpful in assessing any patient who cannot express their consent for care or who is refusing care.13-14
Box 90-5 Mini-Mental Status Exam |Favorite Table|Download (.pdf)
Box 90-5 Mini-Mental Status Exam
Orientation (time, person, place)
Registration of information (repeating the names of 3 items)
Naming (What is this?)
Reading (Please read what this says.)
At times the ED physician must make a rapid decision about patient's cognitive ability with very little data or input from family or friends. The patient with an altered mental status because of alcohol, drugs, head injury, medical or psychiatric illness is often not capable of understanding information or making appropriate decisions that he or she would otherwise make when not impaired. Thus the patient with diminished cognition and therefore diminished capacity cannot rationally make decisions. When such patients refuse care or make unreasonable decisions about care, not in their best medical interests, and not in line with the decision that a reasonable person would likely make in a normal mental state, they should be considered incapacitated.
If the patient is cognitively incapacitated, the physician's judgment and actions should be focused on providing the care that the “average reasonable person in a similar circumstance” would want to have provided. As time is available during or after stabilizing a patient's emergency condition, the medical care providers should engage in a more detailed on-going assessment of the patient's capacity.
Respect for a patient's rights is critical. A healthcare provider's desire to help a patient should not overshadow the rights of a patient's, with normal cognitive capacity, to make reasonable informed decisions, even if the decisions are counter to usual best medical practices. In such cases the patient's “informed refusal” should be carefully documented. The documentation should include the components listed in Box 90-6 and clearly define the patient's capacity to refuse the care offered (Box 90-7).15
Box 90-6 Components of Refusal Documentation |Favorite Table|Download (.pdf)
Box 90-6 Components of Refusal Documentation
Nature of the circumstances, especially the clinical data
Recommendations for care with the expected benefits and risks
Alternatives that were offered with expected benefits and risks
Care accepted and refused, the reasoning by the patient for their decision to refuse care, any input from family or friends, and the attempts by staff to inform the patient of risks and benefits from the care options chosen by the patient
An assessment of the patient's capacity to make decisions (Box 90-7)
Box 90-7 Elements to Consider When Analyzing a Patient's Capacity to Refuse Consent |Favorite Table|Download (.pdf)
Box 90-7 Elements to Consider When Analyzing a Patient's Capacity to Refuse Consent
Does the patient know they have a choice?
Does the patient understand the particular treatment being offered, associated risks, and relevant information about the care?
Does the patient appreciate the medical situation and its consequences?
Is the patient able to make a discernible decision, one way or another regarding the treatment being offered?
Can the patient communicate, verbally or nonverbally their decision?
A standardized, signed, and witnessed against medical advice (AMA) form is useful in any refusal of care event (Box 90-8 and Figure 90-1). However, a form is not a substitute for a well-documented clinical note of the events and circumstances. Too often, impassioned providers have AMA forms signed and then neglect to carefully document their full efforts and processes in rendering care. Records often fail to demonstrate how much medical staff cared about a “recalcitrant patient.” Once the complexities involved in refusal of consent cases are clear to ED staff, events involving refusals are less stressful and ED staff become more comfortable in documentation of the process as they feel they are capable of appropriately providing the best care whatever the patient's choice.16-17
Box 90-8 AMA Form Components |Favorite Table|Download (.pdf)
Box 90-8 AMA Form Components
The clinical scenario is explained
Admission or treatment is medically advised
Admission or treatment is refused
The potential consequences of self-discharge are explained
The patient takes responsibility for adverse outcomes
Sample AMA form. (Disclaimer: Must be reviewed by local counsel and to local laws and standards.)
A businessman with chest pain, having been assessed as possessing normal mental capacity, and after being informed of the risks of refusing recommended care—admission, as well as the risks and benefits of alternative choices—including leaving AMA, should be allowed to leave ED care. Prior to the patient leaving, staff should continue to demonstrate their best interpersonal skills to ensure the patient is aware of all his medical options. Guidance from family, friends, and other medical professionals should be enlisted to assist the patient in understanding the issues, and suggestions regarding reasonable outpatient options for care should be offered to further assist the patient's decision-making.
It is important that patients refusing recommended treatment are not abandoned, but rather encouraged to return at any time to the ED, and provided with a timely, specific follow-up appointment arranged with an appropriate physician. Such patients should also be warned not to place others at any risk from the current health situation, that is, driving while having a possible heart attack. These efforts demonstrate the caring of the staff.
Alternatively, in the incapacitated patient where reasoning and logic are futile, there is an obligation by the healthcare providers to provide the best care through an implied consent to save “life and limb” whenever possible. Simply having an impaired patient sign an AMA form and allowing him or her to refuse care places the patient and the medical professionals at risk.
The list of potential scenarios for patients presenting to an ED with diminished mental capacity is extensive. When patients with diminished capacity refuse reasonable recommended emergency care, medical assistance should be provided in a safe and logical manner with the goal of preserving life and limiting disability. In general, the intoxicated, traumatized, or otherwise incapacitated patient with life-threatening injuries should be provided with life-supporting care until the patient is stable. These efforts should continue until the patient has the clear capacity to understand and either accept or refuse further care, until an appointed surrogate legal representative for the patient intervenes for the patient, or until further care would be futile under the circumstances. Incapacity to consent for such care at the time it is rendered does not relieve a patient of their subsequent responsibilities. When reasonable care is provided, a patient is responsible for associated financial obligations for the care rendered. More importantly, irrespective of the financial issues, the skilled ED team has little to legitimately fear from litigation when lives were saved, even if the care is retrospectively criticized by those who most benefited.18
The area of refusal of consent becomes complicated in adults under “special circumstances.” Some of these circumstances include:
- Certain personal beliefs, that is, religious beliefs
- The intoxicated patient
- The patient brought in by the police for an evaluation against the patient's wishes
The classic religious conflict is exemplified by Jehovah's Witnesses who may refuse blood transfusions because of their beliefs. Case law addressing these circumstances varies, with some decisions supporting the right of the individual patient, who is determined to have capacity, to avoid transfusion even if death is an end result. Other legal decisions (fewer in number) support transfusions of blood in life and death emergencies against the will of the patient, who is determined to have capacity. The circumstances are even more complicated when others' lives are involved. Examples include pregnant females (placing the life of the unborn child at risk) and children receiving transfusions (legal opinion has supported providing transfusions against the objections of the guardian).
When there is doubt, the general rule is that it is better to defend saving a life when simple processes are available (blood transfusion) than it is to defend immediately accepting a refusal of care for a readily treatable event when the patient has a subsequent related demise.
When time permits, it is also helpful to seek second opinions from other medical professionals and hospital administrative/legal personnel when a patient refuses recommended care. Substituted judgment (someone other than the patient making consent decisions) from spouses, family, or close colleagues, or from courts or court-appointed guardians, is often helpful in such difficult situations. When the patient is a minor, ED treatment issues surrounding consent and refusal are also complicated. It is appropriate to provide life-saving care to the minor while the complexities of the legal processes are sorted out administratively (see minors and consent later).19-20
Patients who are intoxicated present special problems. There is no absolute standard about when an intoxicated patient can be objectively determined to possess the cognitive capacity to make decisions they would otherwise make if sober. Thus, some intoxicated patients normally function with high serum alcohol levels, even when state laws define them as being unable to safely operate a motor vehicle. Nonetheless, there is no specific level of alcohol, other drugs, or medications that is routinely used to determine the capacity or inability of an individual to function and make decisions.21
In some states it is illegal to drive with any drug impairment, irrespective of the type of drug. Yet some patients seem to function reasonably well and make reasonable decisions with various levels of alcohol and drugs. It is therefore imperative that ED physicians carefully and objectively assess the cognitive state and capacity of a patient who refuses to give consent when there is a suspicion of alcohol or drug impairment.
Generally, experienced ED providers will consider potentially intoxicated patients “incapacitated” when those patients are making life and death decisions about their care when there is immediate and grave risk, especially if the same patients in a nonintoxicated state, would likely follow the best recommended medical care. At times this will mean providing care despite intoxicated patient's refusal to consent to the care. In such cases, care should be provided, using best practices. Restraints may be required to appropriately assess and stabilize the patient. The greater and more immediate the risk to the welfare of the intoxicated patient refusing care and treatment, the more likely that such standard appropriate emergency care will be successfully defended from subsequent legal scrutiny.
If after an appropriate assessment, emergency stabilization is not required, then it may be reasonable to allow the patient to reach a stable cognitive level to enhance their ability to make better informed decisions about additional care. However, there is a long-recognized valid emergency care principle that there is great legal risk to ED providers when they honor an intoxicated patient's refusal of care and allow a poor medical outcome. Concomitantly, the risk of successful litigation is very small when patients subsequently make claims of assault and battery or false imprisonment arising from the restraint of an intoxicated patient in order to complete an appropriate evaluation and stabilization of the patient's condition. Rather than being indiscriminate, decisions to intervene and provide care to impaired patients should be reasonable, evidence based, and well documented when care is provided without a patient's express consent.22-23
Patients that are brought to EDs by police for assessments or treatment should be treated as any other patient with similar medical problems and in a similar state of cognitive capacity (unless specific laws compel the medical professional to act differently). A patient who refuses care for injuries received during or prior to “arrest” should be treated in the same fashion as a similar patient not under arrest. If the patient is brought to the hospital for administrative medical reasons, that is, they are body packers, or a serum alcohol level needs to be drawn, the patient should be treated as any patient relative to their rights and responsibilities. When a patient is arrested, the police, representing the “state,” may have the right and obligation to have an arrested patient assessed for medical problems.
However, in most circumstances, the state cannot force a patient to make a decision about their health rights if it is not an emergency situation or without a court order. Thus ED professionals should be cooperative with police but generally follow the same standards as with other patients with similar medical problems. If a court order compels the physician to perform certain procedures, that is, to preserve evidence, the order permits the physician to proceed with providing care according to best medical judgment. In these circumstances, the physician continues to be responsible both for determining the correct medical care and for the outcome of that care.24,25