Legal Issues in the Emergency Setting

CASE 1: INFORMED CONSENT

A 25-year-old woman presented to the emergency department with severe abdominal pain. During the medical workup, a narcotic analgesic was administered. As the workup continued, the treating physician determined that the patient had an ectopic pregnancy that required surgery. The patient appeared to understand the diagnosis and the proposed treatment, and she signed the informed consent document.

The surgery went well; the ectopic pregnancy was corrected, and an inflamed appendix was removed. The patient had numerous adhesions, which the surgeon also removed. After surgery, sepsis developed and the surgical wound did not heal properly. The patient required a second exploratory laparotomy. Her total recovery period was 6 months, and the patient had an additional scar from a midline incision.

This patient had her record evaluated by an attorney friend because of her frustration with the second surgery and protracted recovery. The patient was unsure whether there was a discussion about removing her appendix or adhesions if they were found. She did not recall any discussion about the treatment options. Nursing notes described the patient as asleep for much of the time after receiving an injection of a narcotic analgesic.

The patient alleges that informed consent never occurred because of her altered mental state and that there was never a discussion about removing the appendix or adhesions--procedures that may have contributed to this patient's post- surgery com plications.

Discussion

Although this case did not involve a psychiatric emergency, it presents issues that may easily arise in an emergency psychiatric setting. Medications administered before a discussion about treatment and completion of the informed consent documents may compromise a patient's competency. This case raises multiple questions, including:

•How do nursing notes describe the patient's mental state after receiving an injection of a narcotic analgesic?

•Did the medication impair the patient's ability to understand the diagnosis and proposed treatment?

•Is there a physician's note about her understanding of or any logical questions she asked about the diagnosis and procedure?

If the patient asks numerous logical, goal-directed questions about the procedure, this suggests an understanding. If the patient is overly sedated and does not appear to understand the proposed treatment, she is not competent; therefore, the physician must obtain informed consent through substituted judgment. Substituted judgment is easiest to obtain through next of kin. However, if the patient has a medical emergency and is in danger of loss of life or limb, many states allow 2 physicians to sign the informed consent as an appropriate procedure.

Another question that arises from this case is who obtained the signature on the informed consent form. Ideally, the treating physician or a resident would obtain informed consent. During the signature pro- cess, the patient may have additional questions. Hopefully, the signature on the informed consent form was not acquired by a nurse, medical student, or clerk. If the clerk had the patient sign the informed consent form, one wonders whether the treating physician followed a proper informed consent procedure.

Also important in this case is whether the removal of the appendix and adhesions was included in the informed consent. When a surgeon discovers an abnormality not anticipated and thus not included in the informed consent, should the surgeon proceed and correct that pathology or wait and educate the patient when he or she comes out of the anesthesia? The answer will probably depend on the degree to which correcting this problem increases surgical risk and whether the discussion with the patient included the possibility of additional interventions similar to those that occurred with this unexpected surgical finding.

The safest option legally is not to perform additional procedures. Instead, complete only the agreed-on procedure, and when the patient comes out of anesthesia, inform him about the additional findings.

CASE 2: AGITATED PATIENT

A 20-year-old man presented to a psychiatric emergency service (PES) at a large county hospital on an involuntary hold for danger to self and others and grave disability. He was found lying in the road in a busy downtown intersection, nearly being struck by passing traffic. The patient repeatedly stated that he was God and was going to save the world. He also appeared very frightened and said that he heard the devil's voice talking to him in his head; his thought process was grossly disorganized.

The man did not respond to commands from police officers to stand up and walk with them to the sidewalk and had to be assisted by the officers to safety. Once on the sidewalk, he became angry and agitated, yelling at pedestrians walking by, threatening to kill them, and attempting to strike them with his fists. The man began spitting at the officers and passersby and subsequently was handcuffed, placed in the patrol car, and taken to the PES.

At the PES, the patient's aggression and agitation continued; he threatened others, screaming that he was going to kill them. He was probably homeless and was dirty, disheveled, and malodorous. He appeared not to have eaten, bathed, or shaved for some time. The attending psychiatrist attempted to de-escalate the situation verbally and distract the patient by offering him food and drink. The psychiatrist also had him placed in a seclusion room to decrease external stimuli.

The patient began banging his head violently against the seclusion room door and windows. He refused to take medication orally when it was offered and attempted to escape the seclusion room by banging on the door and turning the door handle to open it. After numerous failed attempts by staff in instructing him to stop these behaviors, the patient was placed in 4-point restraints and medicated emergently with an intramuscular injection of antipsychotic medication.

Discussion

Several issues for discussion arise in this case. The first is involuntary hospitalization. All 50 states provide some form of involuntary hospitalization, although the legal requirements vary. All states allow patients to be hospitalized when they present a danger to themselves or others (police power), while certain states allow involuntary hospitalization because of grave disability, such as when a patient cannot provide his own food, clothing, or shelter because of the presence of a mental disorder (parens patriae).

Persons with the authority to hold psychiatric patients against their will vary from state to state and can include psychiatrists, psychologists, social workers, nurses, and law enforcement officials. In this case, the police officers placed the man on an involuntary hold because he was a danger to himself (lying in the street nearly getting hit by passing cars), was a danger to others (threatening to kill others and spitting on others), and had grave disability (as judged by his appearance and behavior).

Because of the imminent danger this patient presented to both himself and others, he was placed in restraints. His severe psychotic behavior and symptomatology, his threatening and possibly self-injurious behavior, his refusal to take medication orally, and his failure to respond to attempts to calm him (first verbally and then by placing him in isolation) together provided legal justification for giving him an involuntary intramuscular injection of an antipsychotic medication.

CASE 3: TREATMENT REFUSAL

A 45-year-old woman was admitted under an involuntary psychiatric hold after the staff at the board-and-care facility where she lived complained about her bizarre paranoid behavior. The patient had been breaking into other clients' rooms looking for objects she believed were sending radioactive waves that gave her cancer. She also believed that her neighbors were stealing her thoughts, talking about her, watching and following her, and possibly wanting to hurt or kill her. When approached by staff and her peers, the patient became verbally and physically aggressive.

Police were called because of this patient's dangerous behavior, and she was brought to the PES. She had an existing diagnosis of schizophrenia but had been refusing her medications at the board-and-care facility, because she believed that they would poison her brain and eradicate her "special knowledge." In addition, she thought that the staff at the facility who attempted to give her her medications and the psychiatrist who prescribed them wanted to cause her harm.

In the PES, she was calmer than she was at the board-and-care facility and somewhat cooperative, but she still refused medications. When the risks, benefits, and side effects of the medications were explained to her, the patient stated: "They will take away my special abilities of supernatural power."

The patient was transferred to the inpatient ward, where she continued to be paranoid and hypervigilant. The attending psychiatrist thought that psychotropic medications were necessary to manage her symptoms and to provide her best chance for eventual discharge back to the community.

Discussion

This case illustrates a patient's right to refuse both treatment and vicarious decision making. This patient did not meet the criteria to be medicated emergently against her will. However, her treating physician believed that medications were warranted to manage her schizophrenia.

A petition was filed to routinely medicate this patient against her will. The basis of this petition was that because of her mental illness, she did not have the capacity to refuse psychotropic medication. By filing the petition, the physician and hospital were asking the court to provide substituted judgment and the necessary informed consent for the medications.

Each state has a different procedure for administering nonemergent involuntary psychotropic medications. Informed consent and competency are the issues on which most court petitions by PESs, consultation and liaison services, and inpatient psychiatric wards are based. *