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The Right to Refuse Treatment Brenda Keller, M.D. Thomas Magnuson, M.D.

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Presentation on theme: "The Right to Refuse Treatment Brenda Keller, M.D. Thomas Magnuson, M.D."— Presentation transcript:

1 The Right to Refuse Treatment Brenda Keller, M.D. Thomas Magnuson, M.D.

2 Objectives Elucidate the concept of informed consent Elucidate the concept of informed consent Define power of attorney and guardianship Define power of attorney and guardianship Discuss refusal of treatment issues Discuss refusal of treatment issues Describe how to proceed with an evaluation Describe how to proceed with an evaluation

3 Case One Refusal of medication Refusal of medication –68 year old female –Diagnosis of schizophrenia for 40 years  Severely ill  Never able to live in the community –Guardianship established long before –Order written to give an injectable form of an antipsychotic if she refused oral antipsychotic

4 Case One The patient refused to take the oral medication The patient refused to take the oral medication –Despite the order, and the consent of the guardian, the nursing home refused to give the IM antipsychotic –They claimed “The patient has a right to refuse treatment.” –The medication is essential for her health  She denies she has schizophrenia  Noncompliance will lead to hospitalization

5 Case Two Leave AMA Leave AMA –88 year old female with severe Alzheimer’s Disease  Lived in the facility for two years –Only family is unemployed son who lives in the patient’s home  Her money is going down to the point the home will have to be sold  The son is her DPOA –He visits or calls rarely –Usually never at treatment planning meetings  He tells the administrator that he desires to take his mother home “because that is where she belongs.”

6 Case Two Naturally the nursing home staff is worried Naturally the nursing home staff is worried –The son does not seem to understand the level of functional support that his mother needs  When he asks her if she wants to go home she says ‘Yes.”  When the nursing staff asks she says “No.”  He later notes that “a friend” may help him care for her –This friend is never seen, despite the facility asking the son to bring the friend by to learn how to care for her

7 Case Three 76 year old demented white male who refuses to bathe at all 76 year old demented white male who refuses to bathe at all –Becomes combative when approached –Daughter is DPOA and is embarrassed  She wavers between bathing and leaving him be –He has developed infections and skin problems from his poor hygiene  He has diabetes and vascular disease  Other residents complain of his smell –He is incontinent of urine at times –His roommate yells at him

8 Problematic refusals Eating Eating Bathing Bathing Ambulating Ambulating Medications Medications Other therapies and treatments Other therapies and treatments Appointments Appointments Toileting Toileting

9 Basic Concepts Informed Consent Informed Consent –A legal concept  An agreement to do something or allow something to happen –Take a medication, e.g.  Made with complete knowledge of all relevant facts –Risk versus benefit  Adverse events which may occur due to the medication  Improvement due to taking the medication –Available alternatives  Not taking the medication  Other medications  Nonpharmacological treatments

10 Definitions Capacity Capacity –Relates to sound mind –Intelligent understanding and perception of one’s actions –Physicians and psychologists determine capacity Consent Consent –An act of reason and deliberation –Unaffected by fraud or duress Assent Assent –Agreement, usually through deliberation –Patients can assent even when they cannot consent  Patient agrees to take the medication though they have a limited understanding  Power of Attorney has consented for the patient to take the medication  Not receiving assent from the patient does not preclude giving the medication

11 Where do “Patient’s Rights” fit in here? A bit tricky and commonly misunderstood A bit tricky and commonly misunderstood Most state and federal guidelines contain a provision stating that a resident can refuse medical treatment Most state and federal guidelines contain a provision stating that a resident can refuse medical treatment –Even though this is couched by “but this could be harmful to your health.” –This is independent of any knowledge of whether he resident has a legal decision maker or not

12 Documentation Durable Power of Attorney Durable Power of Attorney –Notarized form the patient fills out –Appoint a person to handle your affairs while you are unable to do so  Unconscious  Mentally incapacitated  “Otherwise unable to do so” –General, special, health care –Durable means the POA takes effect if you become mentally incapacitated and is ongoing  Can be revoked –Physician’s assessment usually required for the DPOA to go into effect

13 Documentation Remember Remember –The durable power of attorney can be signed by the patient only when they retain the capacity  To understand what they are entering into –As mentioned before  Have the capacity to determine who would act in their interest –Allows less than responsible persons to manage the patient’s life and money  Otherwise they need to pursue guardianship

14 Documentation Guardianship Guardianship –Legal relationship  Established by the court –Requires a hearing with attorneys representing both sides  Between guardian and ward –Guardian has a legal right and duty to care for the ward  Making personal decisions  Managing finances  Or both  Conservatorship is a term used to refer to the guardian of an incapacitated adult

15 Approach to the problem Make sure the patient’s legal status has been evaluated before admission Make sure the patient’s legal status has been evaluated before admission –Make sure if someone says they have a DPOA or guardianship they actually do-make sure you see the document.  Many families misunderstand this question –With certain diagnoses it would be unusual to retain full capacity  Schizophrenia  Dementia However, residents may retain capacity in some realms and not others However, residents may retain capacity in some realms and not others –May still be able to manage their finances well, but have little insight into their health

16 Evaluation of Capacity “…to do what?” “…to do what?” –Make what kind of decisions, carry on what activities independently  Manage their own money  Undergo a colonoscopy –Knowing the concern makes the approach easier –Not all decisions the same  It takes less capacity if there is less risk with either agreeing or disagreeing to treatment –Taking a multivitamin  Deciding about a band-aid on a scratch takes less capacity than heart surgery

17 Evaluation Can be done by any physician Can be done by any physician –In many cases the determination is so obvious no further specialization is needed If the determination is harder to make If the determination is harder to make –Mild dementia, executive deficits –Disputes among caregivers, legal issues exist Psychiatrist Psychiatrist –Forensic psychiatry is the specialty that deals with this issue Neuropsychologist Neuropsychologist –Tests all functions of the brain in question  Memory, language, V/S skills, executive function –Most through evaluation of capacity

18 Any other options? Mental health commitment Mental health commitment –Filed with the local Board of Mental Health –Must have two facets  Mentally ill –As defined by the Nebraska State Statutes –Commonly refer to the current version of the DSM  Dangerous –Actively  Suicide, homicide –Passively  Neglect, lack of insight

19 Any other options? Emergency guardianship Emergency guardianship –Usually for someone in imminent distress  No DPOA  Living in squalor, significant life threatening health problems –Does not require a hearing  Usually sets a future hearing date  Temporary guardian appointed –Some finesse required in finding the right person to handle these

20 Still not sure what to do Contact Contact –The Nebraska Long-Term Care Ombudsmen Program  (402) 471-2307 or (800) 942-7830 –Adult Protective Services  Contact local DHHS office –County Attorney  County Board of Mental Health –Attorney General of the State of Nebraska  (402) 471-2682

21 Case One The resident had a guardian The resident had a guardian –Who was in agreement with the treatment plan The nursing home was incorrect in withholding medical treatment The nursing home was incorrect in withholding medical treatment –In reality the prospect of giving a potentially combative resident IM meds was concerning to the nursing home Could place themselves at legal risk Could place themselves at legal risk –Non-treatment could lead to an increase in morbidity and mortality

22 Case Two Two concerns Two concerns –Son’s motivation and ability to care for mother at home  Financial abuse is also a worry –Patient’s statement that she wanted to leave against her doctor’s advice  Variable upon context  Cannot state why she would go home against medical advice

23 Case Two A neuropsychological evaluation or psychiatric evaluation is called for here A neuropsychological evaluation or psychiatric evaluation is called for here –May give some insight into her level of understanding whether the son is acting in her interest May require Adult Protective Services intervention May require Adult Protective Services intervention –If son pushes the idea of taking her home Guardian likely needed to protect her from DPOA Guardian likely needed to protect her from DPOA –Tell son people may question his motives, so getting a guardian will remove such suspicions  “Isn’t that expensive?”

24 Case Three Can you force someone to take a bath? Can you force someone to take a bath? –Yes, but do you really want to…  Understand how often he needs to be bathed –Certainly there are sound medical reasons he needs to be bathed, plus day-to-day pericare  Try and determine what environmental issues there are, if any –Doesn’t like women to bathe him, e.g. –Like any task, slowly talk them through steps –Let him set the schedule –See if family can be there  If this still doesn’t work –Ensure safety –Low dose medication can help with bathing  But not with daily wash-ups

25 Review Case One Case One –Essential treatment issue –Guardian overrides “patient rights” Case Two Case Two –DPOA not acting in her interest –DPOA should be rescinded for a guardian Case Three Case Three –Case must be made for health of patient and peers –DPOA agreed to bathing –Try and find environmental reasons for noncompliance


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