The Right to Refuse Treatment
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Transcript The Right to Refuse Treatment
The Right to Refuse
Treatment
Brenda Keller, M.D.
Thomas Magnuson, M.D.
Objectives
Elucidate the concept of informed consent
Define power of attorney and
guardianship
Discuss refusal of treatment issues
Describe how to proceed with an
evaluation
Case One
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
Case One
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
Case Two
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.”
Case Two
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
Case Three
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
Problematic refusals
Eating
Bathing
Ambulating
Medications
Other therapies and treatments
Appointments
Toileting
Basic Concepts
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
Definitions
Capacity
– Relates to sound mind
– Intelligent understanding and perception of one’s actions
– Physicians and psychologists determine capacity
Consent
– An act of reason and deliberation
– Unaffected by fraud or duress
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
Where do “Patient’s Rights” fit in
here?
A bit tricky and commonly misunderstood
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
Documentation
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
Documentation
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
Documentation
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
Approach to the problem
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
– May still be able to manage their finances well, but have little
insight into their health
Evaluation of Capacity
“…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
Evaluation
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
– Mild dementia, executive deficits
– Disputes among caregivers, legal issues exist
Psychiatrist
– Forensic psychiatry is the specialty that deals with this issue
Neuropsychologist
– Tests all functions of the brain in question
Memory, language, V/S skills, executive function
– Most through evaluation of capacity
Any other options?
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
Any other options?
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
Still not sure what to do
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
Case One
The resident had a guardian
– Who was in agreement with the treatment plan
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
– Non-treatment could lead to an increase in morbidity
and mortality
Case Two
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
Case Two
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
– If son pushes the idea of taking her home
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?”
Case Three
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
Review
Case One
– Essential treatment issue
– Guardian overrides “patient rights”
Case Two
– DPOA not acting in her interest
– DPOA should be rescinded for a guardian
Case Three
– Case must be made for health of patient and peers
– DPOA agreed to bathing
– Try and find environmental reasons for
noncompliance