Patient consent seems like a pretty easy subject when we are in school as a parafetus. In fact, many programs gloss over the subject, but in my experience no single issue gets medics in trouble as often as the subject of consent and refusals. What complicates things further is when a patient is forced to go to the hospital against his will, or a child has to go over the objections of a parent.

In order to explain how this happens, a little explanation about consent and mental capacity is in order. In order for patient care to happen, the patient must consent to this care. The law requires a medic to care for a person who for some reason is incapable of making an informed decision for themselves. Examples include unconscious or intoxicated adults, and children in the absence of their parent or guardian. This is called “implied consent.”

In the event that you have a patient with a medical condition that prevents them from understanding the refusal and its implications, implied consent is the ruler of the day. An unconscious patient gets transported under this doctrine. A patient with altered mental status is a little more difficult. Let me illustrate:

Last shift I was the duty EMS supervisor when one of my crews was dispatched to a fall. Just after arrival, they requested police response for a combative patient. I began driving that way, and within a couple of minutes they called and requested the supervisor.

When I arrived, they told me that the patient, an 80 year old man with a cardiac and stroke history, had fallen down and hit his head on the wall with enough force to go through the drywall and strike his head on the concrete block. The patient’s 30-something year old son called because the patient would not get up off the floor. All adults present are intoxicated. One of the crew on scene met me in the driveway and said the patient’s wife was agitated and wanted them out of the house, and had gone so far as to punch one of the crew members in the face. (Wow- an extra $1.50 an hour to be supervisor and deal with this kind of thing.)

I entered the house, and before I could say anything the wife starts yelling that she wants me to leave the house and telling me that she has a right to refuse. I introduced myself as the person in charge, and with every intention of smoothing things over and allowing the refusal, explained that there were certain rules that we must follow in order to accept a refusal, and that I wanted to ask a few questions. I began by asking the patient the standard “person, place and time” questions. He answered, but his speech was slurred, and he was argumentative about it, then asked me who I was and why I was in his house. Since I had just explained that, I told him that it was my feeling that he was impaired, and that we would be taking him to the hospital. He and his wife protested, and she accused me of practicing medicine without a license. I explained to them and to their family that he had no choice, so he punched me. The cops saw this and wanted to arrest him. He went to the hospital, I didn’t press charges.

So why did I think he was impaired? The cognitive symptoms of a traumatic brain injury (TBI) can include:

– confusion, disorientation, and difficulty focusing attention
– Loss of consciousness may occur but is not necessarily correlated with the severity of the concussion if it is brief.
– Post-traumatic amnesia, in which the person cannot remember events leading up to the injury or after it, or both, is a hallmark of concussion or even more serious brain injury.
– Confusion, another concussion hallmark, may be present immediately or may develop over several minutes. A patient may, for example, repeatedly ask the same questions, be slow to respond to questions or directions, have a vacant stare, or have slurred or incoherent speech.
– Many brain injury victims experience what is known as the lucid interval.

Since he had many of these symptoms, and it is impossible to tell if the symptoms were caused by his stroke history, intoxication, or his injury, and there were no sober (competent) adults to keep an eye on him, the best and only legal thing to do is to take him in for evaluation.

Now there are many here who will accuse me of violating his rights, and to them I leave you with this story:

There was a woman who called 911 because her husband was acting odd. When we arrived, he asked repetitive questions, became combative, repeatedly asked us to leave, and physically assaulted us when we carried him to the gurney. He had been acting much like the gentleman in the previous story. He died on the way to the hospital. His kids were 3 and 5 years old, and will grow up without a dad. Keep that in mind. Every patient deserves an advocate that will look out for them when the patient themselves cannot. In the prehospital setting, that person is the paramedic.

Determining competence is a three step legal process:

Can an individual retain and comprehend relevant information?
Can an individual believe information?
Can an individual use that information to make a choice?

Thus the capacity to refuse is determined by his competence. If a patient refuses and evidence exists indicating an impairment of the patient’s capacities, it is appropriate to conclude the patient may be found incompetent in a court of law. Impairment may be determined by the patients actions, information from bystanders and caregivers, and a good assessment of the scene and patient.

The key here is trying to determine if the patient understands the nature of his illness/injury, as well as the consequences of refusing treatment. To make this determination, we look for his cognition, judgment, understanding, stability, and vital signs. Just because the patient does not wish to be treated is not sufficient proof that their capacity to choose is impaired.

Capacity is a legal minefield. Choose wrongly and you can be sued for abandonment and negligence, or for false imprisonment. For this reason, documentation of your reasons for making the decision that you did is vital.

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