Capacity, Competency and Liability: Rescuing Providence

My friend, colleague from the Providence Fire Department, and fellow author/blogger Mike Morse, has posed a hypothetical question to me. At least he has assured me that the case is hypothetical and bears no relation to a real incident. Take a look at Rescuing Providence.

 One of the most difficult situations that a firefighter, EMT or paramedic can face is the challenge of dealing with a patient whose mental capacity is in question, and who wants to refuse aid. The issues are complicated, the stakes are high, and if a mistake is made – in the wisdom of hindsight – it will appear to everyone that the decision was blatantly wrong.

Having had the opportunity to consider this challenge both from the provider and the legal perspective for longer than I care to admit, here is how I approach the subject. Let me warn you up front: it’s a little complicated. If you want a simple answer – there’s plenty of them out there, but in this area a simple answer isn’t worth the ink or pixels used to write it.

 We will start with a basic premise and expand on it:

 A patient must have capacity in order to consent to/decline aid. If the patient lacks capacity, and you think they need to be treated or go to the ER, then that is what’s got to happen.

1. Capacity has 2 aspects – legal capacity and mental capacity. While legal capacity is usually a straightforward analysis (ie. the patient must be at or over the age of consent and not legally adjudicated to be incompetent), evaluating mental capacity is usually more complicated. The list of things that impact mental capacity is a long one: how many drinks a person has had, what meds they are on, psychiatric conditions, their present state of mind, knowledge of their surroundings…. The list could go on and on. It is ironic that in a court of law two doctors, each with the full resources of a hospital behind them – can differ in their opinion of a patient’s mental capacity despite having hours, days and weeks to evaluate a patient, yet first responders are expected to get it right in the field in a matter of minutes.
2. A patient who chooses to decline aid must do so knowingly (ie. we need to explain the consequences of declining aid, and the benefits of receiving aid to the patient). I know it sounds like overkill, but hear me out.
3. The process of explaining the consequences of declining aid and the benefits of receiving aid gives us an opportunity to evaluate whether or not the patient understands the risks and consequences of declining aid. A patient who cannot understand/comprehend the risks of declining and benefits of treatment lacks the mental capacity to decline aid…. even if they are otherwise alert and oriented x3.
4. For our sake, and the financial well being of our families, we need to thoroughly document this process of explaining the risks and benefits on the run report. Noting “pt refused ama” does not even begin to cut it. We need to document what we have explained and whether the patient appears to understand what we are saying (ie. “Patient stated she understands she may have a ruptured spleen or other serious internal injuries that could cause her to lose consciousness without warning and die. She also stated that she understands that a brief ER visit could let her know for sure and possibly save her life”). These comments should also appear on her refusal of aid form if a separate form is used.

 Following this process and documenting what is said is important whether (a) we are going to transport a patient against their stated wishes, or (b) we allow the patient to decline aid – because we could be sued in either event.

 Frankly, I’d prefer to defend you in (a)!!!!!! In fact, suits over (a) do not happen very often. Suits over (b) are much more common.