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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.

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Presentation on theme: "Decision-Making in the Hospital Setting: Holds, Capacity, and Conservatorship J. Jewel Shim, MD Director, Psychiatry Consultation and Liaison Service UCSF."— Presentation transcript:

1 Decision-Making in the Hospital Setting: Holds, Capacity, and Conservatorship J. Jewel Shim, MD Director, Psychiatry Consultation and Liaison Service UCSF Medical Center

2 Objectives Review psychiatric holds Review psychiatric holds Differentiate between competence and capacity Differentiate between competence and capacity Understand the four elements of capacity Understand the four elements of capacity Discuss issues with capacity in special populations Discuss issues with capacity in special populations Know the two kinds of conservatorship Know the two kinds of conservatorship

3 Introduction Medical decision making is a constant occurrence in acute-care hospitals 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 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 It is important for physicians to be knowledgeable about key issues related to decision making in the hospital setting

4 Psychiatric Holds

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8 What is the appropriate next step when a patient wants to leave AMA? a.Call security b.Call the patients family c.Call a psych consult d. Evaluate the patients capacity to determine his/her disposition

9 Who can place a 5150? a.police officer b.psychiatrist c.neurologist d.social worker e.any attending physician

10 Once on a 5150, a patient can be treated even though he/she refuses treatment a.True b.False

11 Psychiatric holds clarified 5150/72 hour hold 5150/72 hour hold Based on at least one of 3 criteria defined by LPS Act Based on at least one of 3 criteria defined by LPS Act Danger to selfDanger to self Danger to othersDanger to others Grave disability (food, clothing, shelter)Grave disability (food, clothing, shelter) Can be used to hold patients in the hospital against their will (UCSF Parnassus) 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 dispositionIt must be demonstrated that the patient lacks capacity to decide their disposition Failure to care for ones bodily integrity can be included under grave disability not danger to selfFailure to care for ones bodily integrity can be included under grave disability not danger to self Does not allow patients to be treated against their willDoes not allow patients to be treated against their will

12 Psychiatric holds (cont) 5150 (cont) 5150 (cont) Can be placed by a police officer, psychiatrist, or other clinician that has specific training/credentials Can be placed by a police officer, psychiatrist, or other clinician that has specific training/credentials Hold must be dated and timed Hold must be dated and timed If there is an ED hold present, the hold starts when the ED hold was initiatedIf there is an ED hold present, the hold starts when the ED hold was initiated ED Hold ED Hold 24 hour hold 24 hour hold Initiated by an ED physician Initiated by an ED physician Based on same criteria as a 5150 Based on same criteria as a 5150 If initiated, starts the clock If initiated, starts the clock

13 Psychiatric holds (cont) 5250 5250 14 day continuation of 5150 14 day continuation of 5150 Same criteria as 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 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) Patients have opportunity to demand physicians show probable cause (go to court to dispute the hold)

14 An aside on involuntary medications Riese decision Riese decision Case law based on Riese v. St. Marys Hospital (1989) decision Case law based on Riese v. St. Marys Hospital (1989) decision Involves a capacity evaluation specifically to refuse psychotropic medications Involves a capacity evaluation specifically to refuse psychotropic medications Allows clinicians to administer psychotropic medications against a patients will Allows clinicians to administer psychotropic medications against a patients will Does not apply to non-psychotropic medicationsDoes not apply to non-psychotropic medications Patients must be on a psychiatric hold concurrently Patients must be on a psychiatric hold concurrently Does not extend to emergent administration Does not extend to emergent administration

15 Competency and Capacity

16 Competence and Capacity are interchangeable terms that have the same definition a. True b. False

17 The following is true of capacity: a.A declaration that a patient lacks capacity is permanent b.An assessment of capacity covers all medical decisions c. Demented patients by definition lack capacity d. If a patient lacks capacity in one area he/she lacks capacity in all areas

18 or

19 Competence vs. Capacity Competence is a legal term used to describe a persons global ability to make decisions Competence is a legal term used to describe a persons global ability to make decisions Decided by a court/judge Decided by a court/judge Permanent unless overturned by a court/judge Permanent unless overturned by a court/judge A guardian or conservator is appointed to make decisions for the person A guardian or conservator is appointed to make decisions for the person Capacity is a clinical assessment of a patients ability to make specific healthcare decisions Capacity is a clinical assessment of a patients ability to make specific healthcare decisions Evaluated by physicians Evaluated by physicians Specific, not global Specific, not global Not necessarily a permanent assessment Not necessarily a permanent assessment Ganzini et al., 2005

20 Capacity No formally accepted clinical standard No formally accepted clinical standard A variety of instruments exist, but are not widely used in clinical practice A variety of instruments exist, but are not widely used in clinical practice Likely a more reliable assessment than MD judgment Likely a more reliable assessment than MD judgment Validity yet to be established in non-research populations Validity yet to be established in non-research populations MacArthur Competence Assessment Tool for Treatment (MacCAT-T) (Grisso & Appelbaum, 1995) MacArthur Competence Assessment Tool for Treatment (MacCAT-T) (Grisso & Appelbaum, 1995)

21 Capacity Decision making capacity evaluated along 4 Decision making capacity evaluated along 4 standards found in the law (Appelbaum and Grisso, 1988, 1995) 1.Pt communicates a clear and consistent choice 2.Pt understands the situation 3.Pt understands the consequences of his/her choice, including risks/benefits/alternatives 4.Pt rationally manipulates information

22 Capacity Different courts may emphasize different standards Different courts may emphasize different standards Patients may demonstrate varying degrees of ability among the 4 standards Patients may demonstrate varying degrees of ability among the 4 standards Need to determine acceptable threshold Need to determine acceptable threshold Universally accepted that patients should be evaluated across all 4 standards Universally accepted that patients should be evaluated across all 4 standards Patients must meet acceptable threshold on all 4 standards Patients must meet acceptable threshold on all 4 standards

23 Capacity Most often evaluated when patient is refusing to follow physician recommendation Most often evaluated when patient is refusing to follow physician recommendation Cannot assume that patient has capacity just because they are in agreement Cannot assume that patient has capacity just because they are in agreement Standard of proof increased (sliding scale) Standard of proof increased (sliding scale) When the complexity and seriousness of the issue and risks are significantWhen the complexity and seriousness of the issue and risks are significant When the patients decision is in opposition to what is recommendedWhen the patients decision is in opposition to what is recommended Case of Mr. R Case of Mr. R

24 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 pts 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 dont 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.

25 Capacity Need to think through the ultimate goal of evaluating capacity in each case Need to think through the ultimate goal of evaluating capacity in each case May not achieve desired outcome, i.e., compliance with outpt medications 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 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 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

26 Capacity Specific to a particular question or issue, not global Specific to a particular question or issue, not global Pts can have capacity in one area and not in another Pts can have capacity in one area and not in another Case of Ms. S Case of Ms. S Patients with cognitive or mental impairments do not necessarily lack capacity Patients with cognitive or mental impairments do not necessarily lack capacity But, may be more likely to lack capacity But, may be more likely to lack capacity Patients can regain capacity Patients can regain capacity

27 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.

28 Capacity Decision should in general be consistent with patients prior known values/beliefs Decision should in general be consistent with patients prior known values/beliefs Efforts should be made to help patients perform their best Efforts should be made to help patients perform their best Multiple explanations Multiple explanations Having familiar, trusted people present (family, caregivers) Having familiar, trusted people present (family, caregivers) Examiner of similar ethnic/cultural background Examiner of similar ethnic/cultural background Translator if appropriate Translator if appropriate

29 Capacity Professional duty Patient autonomy Legal system

30 Capacity The actual decision itself is not as important as the process by which the decision was made 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 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) 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) Conflict between preserving personal autonomy and upholding public interest in preserving life (Hurst, 2004) Seat belt, motorcycle helmet, cell phone use lawsSeat belt, motorcycle helmet, cell phone use laws Case of Mr. F Case of Mr. F

31 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.

32 Who can determine capacity? a.A psychiatrist b.A neurologist c.A judge d.A jury e.Any MD

33 Capacity Can be evaluated by any MD Can be evaluated by any MD Psychiatrist evaluation is not required Psychiatrist evaluation is not required Most often best assessed by primary clinicians caring for patient Most often best assessed by primary clinicians caring for patient Know the patient and his/her values system betterKnow the patient and his/her values system better Are able to multiple evaluations over timeAre able to multiple evaluations over time Are more familiar with procedure or issue proposedAre more familiar with procedure or issue proposed

34 When to evaluate capacity Often this evaluation occurs unconsciously Often this evaluation occurs unconsciously Not practical to evaluate capacity formally for every decision a patient makes Not practical to evaluate capacity formally for every decision a patient makes Certain situations call for more explicit evaluation Certain situations call for more explicit evaluation Abrupt changes in mental status Abrupt changes in mental status When patients refuse treatment When patients refuse treatment When the proposed treatment has a higher risk/benefit ratio When the proposed treatment has a higher risk/benefit ratio

35 When to evaluate capacity Certain situations call for more explicit evaluation Certain situations call for more explicit evaluation When patients have one or more risk factors for impaired decision making When patients have one or more risk factors for impaired decision making h/o cognitive impairmenth/o cognitive impairment h/o mental illnessh/o mental illness Current active psychiatric sx – depression, anxiety, psychosisCurrent active psychiatric sx – depression, anxiety, psychosis Patient is of a different culturePatient is of a different culture Patient does not speak English or has limited English skillsPatient does not speak English or has limited English skills Patients who are involuntarily hospitalizedPatients who are involuntarily hospitalized Age – older or younger (younger adult)Age – older or younger (younger adult)

36 Capacity in Special Populations

37 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.

38 Capacity: When the patient refuses capacity evaluation Cannot assume that the patient does not have capacity 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 Efforts should be made to identify a person with whom the patient feels comfortable discussing the issue

39 Capacity: When the patient refuses capacity evaluation Weigh the risk to the patient if his/her decision is carried out Weigh the risk to the patient if his/her decision is carried out If high, then would proceed as if the patient lacked capacity If high, then would proceed as if the patient lacked capacity Explain this process to the patientExplain this process to the patient Balance this with considerations of Balance this with considerations of The potential harms to the patient, both short and long-termThe potential harms to the patient, both short and long-term The short and long term practicality of carrying out interventions against a patients willThe short and long term practicality of carrying out interventions against a patients will Hurst, 2004

40 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 pts 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.

41 Capacity and the psychiatric patient Capacity is assessed in the same way with the same standards Capacity is assessed in the same way with the same standards Capacity determination is absolute (yes/no) regardless of cause of incapacity 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 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 May request psychiatric consultation for guidance Ultimately the responsibility of primary physician caring for patient Ultimately the responsibility of primary physician caring for patient

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43 Capacity: The emergent/urgent situation When capacity cannot be evaluated (i.e.,unconscious patient) and there are no readily available surrogates When capacity cannot be evaluated (i.e.,unconscious patient) and there are no readily available surrogates Shoot first, ask questions later? Shoot first, ask questions later? Intervention is not delayed to evaluate capacity to consentIntervention is not delayed to evaluate capacity to consent Widely accepted standard: The two physician consent, emergency privilege (Derse, 2005) 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 proceed2 physicians need to independently agree and document that there is an imminent threat to life or limb and may proceed

44 Capacity: The emergent/urgent situation When capacity cannot be evaluated (i.e.,unconscious patient) and there are no readily available surrogates When capacity cannot be evaluated (i.e.,unconscious patient) and there are no readily available surrogates Best interests standard Best interests standard Based on best interests as a whole for patientsBased on best interests as a whole for patients Maximizes overall/long-term benefits, minimizes burdens Maximizes overall/long-term benefits, minimizes burdens Compares burdens, consequences, potential complications of treatment vs. non-treatment Compares burdens, consequences, potential complications of treatment vs. non-treatment What a reasonable person would consider acceptable under similar circumstancesWhat a reasonable person would consider acceptable under similar circumstances Can be decided by the physicianCan be decided by the physician Grisso and Appelbaum, 1998, Kopelman, 2007

45 Conservatorship

46 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 conservatorship b.LPS conservatorship

47 Probate conservatorship and LPS conservatorship confer the same powers to the conservator a.True b.False

48 Conservatorship Two tracks Two tracks Probate conservatorship Probate conservatorship LPS (Lanterman-Petris-Short Act) LPS (Lanterman-Petris-Short Act) Choice of track depends on nature and etiology of incapacity Choice of track depends on nature and etiology of incapacity Powers of conservator Powers of conservator Must be petitioned for and specifically granted Must be petitioned for and specifically granted Person Person MedicalMedical PsychiatricPsychiatric MedicationsMedications Estate (financial) Estate (financial)

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50 Probate Conservatorship Patient deemed to be incompetent to make decisions in regard to person and/or estate Patient deemed to be incompetent to make decisions in regard to person and/or estate clear and convincing evidence clear and convincing evidence Usually in cases of dementia or other organic brain disorders Usually in cases of dementia or other organic brain disorders Can last indefinitely Can last indefinitely Court reviewed every 2 years Court reviewed every 2 years Often a family member or close associate of patient assumes role of conservator Often a family member or close associate of patient assumes role of conservator

51 Probate Conservatorship Specific powers of conservator must be established by the court Specific powers of conservator must be established by the court Does not include mental health treatment Does not include mental health treatment Placement can be an issue Placement can be an issue

52 LPS Conservatorship Based on Lanterman-Petris-Short Act enacted July 1, 1969 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 Patient is demonstrated as gravely disabled as a result of a mental disorder or chronic alcoholism beyond a reasonable doubt beyond a reasonable doubt Conservatorship is for a one year term and can be renewed Conservatorship is for a one year term and can be renewed Not permanent Not permanent Patients have opportunities to dispute conservatorship Patients have opportunities to dispute conservatorship

53 LPS Conservatorship Conservators are most often court-appointed Conservators are most often court-appointed Specific powers must be established Specific powers must be established Patients are often initially placed in locked facilities (L-facility) Patients are often initially placed in locked facilities (L-facility) Conservator can decide to place patients in alternative, less restrictive settings Conservator can decide to place patients in alternative, less restrictive settings

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

55 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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