0:00

<silence>

0:07

This episode of a HLA speaking of

0:09

health law is brought to you by a HLA members

0:11

and donors like you. For more information,

0:13

visit american health law.org.

0:22

Hi, I'm Wendy Rogel aligner , a

0:24

healthcare lawyer in the Dallas office

0:26

of Bradley, a ranch . I'm

0:28

happy to be here today with my

0:31

friend and help a colleague, Alicia

0:33

gr Green to talk about

0:35

an interesting issue that we wrote about

0:38

recently for A HLA . The

0:41

article, which was published a couple months

0:43

ago, is entitled

0:46

Medical Incapacity Without

0:48

Mental Illness, A Illegal and

0:50

Ethical Dilemma for Physicians. And

0:53

we, I think, are so happy, Alicia

0:55

and I to have been asked to talk about this article

0:57

on a podcast. It's

1:00

a really interesting issue that

1:02

we kind of stumbled upon and got interested

1:04

in regarding how to navigate patients

1:07

who are lacking capacity

1:09

to make their own medical decisions. Sometimes

1:12

urgently, you know, it , it's sometimes

1:14

without much notice , um,

1:17

but not due to mental illness, which

1:19

you might not realize unless you've kind of faced

1:22

this issue or this situation

1:24

head on . But there's a significant

1:27

gap in the law in this area when

1:29

the in incapacity is not related

1:31

to mental illness, and it

1:33

often leaves providers, patients,

1:36

and families in really uncertain

1:38

situations. So

1:41

when Alicia and I began talking about this and researching

1:44

it a few months ago , um,

1:47

I think we both realized pretty quickly that it's, it's

1:49

really important issue that should be talked

1:51

about, and that hospitals

1:54

and providers really could

1:56

do some guidance on how to approach these situations

1:59

ahead of time. So,

2:02

anyway, I don't wanna get ahead of myself. Alicia

2:04

, why don't you introduce yourself and tell us a little bit

2:06

about how you became interested in this topic.

2:10

Hi, I am Alicia Green. Um, I

2:12

am an associate at Husch Blackwell.

2:15

Um, I do primarily regulatory and compliance

2:17

work. Um, I do, I

2:19

have taught at SMU Edmond School of Law.

2:21

I've co-taught , uh, public health law

2:23

and ethics, and I have a master's degree in

2:25

bioethics from Harvard Medical

2:28

School. So this is an especially

2:30

interesting topic for me because it

2:33

kind of lies in that intersection between

2:35

kind of an ethical , uh, problem

2:38

as well as a legal problem. Um,

2:40

so basically it's kind of the , the

2:43

traditional fight between beneficence

2:46

and paternalism, which would be more on the provider

2:48

side in terms of wanting to do the right thing for

2:50

the patient. Um, and then

2:52

patient autonomy on the other side is

2:54

right over making their own decisions, self-determination

2:58

and having control over their own

3:00

body and what happens to their body. So

3:02

this is kind of a balancing , um, act

3:05

that comes up in other situations.

3:07

And that is always very interesting to me because

3:10

it's a really difficult thing to balance, and

3:12

it kind of makes us ponder what the right thing to do is,

3:15

especially when every situation is

3:17

really different and complex and the patient is

3:19

different and their families, and you have

3:21

to take so many factors into consideration.

3:23

So I think we can all ask

3:26

ourselves, or at some point, maybe faced in

3:28

one of these situations and have to kind of go through the

3:30

analysis of what we would expect or how we would we

3:32

think that ha that should be handled, and to give

3:34

direction in our professional

3:37

lives towards providers , um, and

3:39

clients who could potentially also be,

3:41

you know, faced with providing treatment to a patient

3:43

who is experiencing this type of situation.

3:47

Um, so that's kind of what I guess I

3:49

find most interesting about it . But also

3:52

I think, like Wendy said, it's a , it's

3:54

a problem that people don't really think about because

3:56

they often only associate a medical hold

3:58

with a patient or a psychiatric hold,

4:00

I should say, with a patient who's experiencing mental

4:03

illness. Um, so Wendy,

4:06

why don't you give us some examples of, I

4:08

guess, you know, some situations that you've encountered

4:10

in your practice where a patient might need

4:12

to be held for treatment or even

4:14

observation for a certain period of time due

4:17

to a medical problem rather than a a psychiatric

4:19

problem.

4:21

Yeah, sure. Happy to. I , um,

4:24

as you know, I do a lot of hospital

4:26

operations work in my practice, which

4:28

means basically, you know, day-to-day

4:31

advising of hospitals regarding the

4:33

, the patient and other situations that

4:35

have arose , you know, that day or

4:37

overnight. Um, so

4:40

I have plenty of examples of this that

4:42

we could talk about, but two are really in

4:45

the forefront of my mind, and they just happen to be

4:47

the two that we briefly touched

4:50

on in the article. And,

4:52

you know, they, they both were real life , um,

4:54

situations that we had to face and, and

4:56

they were tricky. So the first was

4:59

, um, a cancer patient who,

5:03

you know, after lengthy hospitalizations,

5:05

lengthy treatments, and , um,

5:08

this particular patient had been hooked

5:10

up to invasive nasogastric

5:13

tube and , uh, other kind of

5:15

, um, draining tube that had so

5:18

external tubes actually, you know, into

5:21

the internal cavities of the body. And

5:24

decided suddenly

5:26

at three o'clock in the morning, one night that

5:29

she was finished and she was gonna

5:31

go home. And so this

5:33

patient was alert to, you

5:36

know, her circumstances alert

5:38

to, you know, time and where

5:40

she was and oriented , um,

5:44

but she was not

5:48

able to appreciate the

5:51

risk that she would be exposing

5:53

herself to the immediate danger

5:56

of just walking out, not

5:58

even giving the clinicians time to

6:02

stabilize her condition and unhook the tubes

6:04

and things that were , um, you know, that

6:06

she was attached to. So instead she

6:10

unhooked herself from the ones

6:12

that she was able to do. And

6:15

she knew how to do this 'cause she had gone through so

6:18

much treatment and watched

6:20

the clinicians change things, change

6:22

the tubes and, and such during her

6:24

treatment that she was able to unhook

6:26

herself. But, but that left

6:28

her with open tubes

6:30

dangling from her body going to

6:33

internal organs. And she, you know, got

6:35

herself dressed despite

6:38

that and was going to leave. Um,

6:41

it was really a difficult situation.

6:44

The physicians and the nurses found

6:46

her capable, meaning

6:49

they, they thought that she was a competent adult

6:52

even though she was making a decision, that

6:54

in and of itself spoke to

6:56

lack of capacity because no one was

6:59

trying to keep her permanently. They

7:01

were trying to keep her for long enough to stabilize her

7:03

if she was in fact gonna leave against medical

7:06

advice. Um, so sometimes the situation

7:08

itself speaks to lack of capacity.

7:12

Um, but in this situation, the

7:14

clinicians, assuming that she was competent

7:17

and had capacity to make this decision, sort

7:20

of didn't know what to do, they didn't think that they

7:22

could hold her against her will even temporarily.

7:26

So they, they weren't intervening.

7:29

And the calls that I got were

7:31

, you know, she's, she's

7:33

up and ready to go and, and going to leave

7:35

in this state, and we don't feel like we can hold

7:37

her. Um, in

7:40

that case, we were able to resolve the

7:43

situation by leaning

7:45

on the family to get there

7:48

and talk her out of

7:50

doing this, which would've, you know, created

7:52

a grave risk to her immediate health

7:55

, um, and wellbeing. And

7:58

so you'll find, and I'm sure we'll get into it later as

8:00

we talk , um, if you don't

8:02

have an advance policy at the

8:04

hospital to follow, and you and the clinicians

8:06

don't know exactly what to do, the

8:09

, the family is a huge resource

8:11

and can often turn things around, which

8:13

is what happened in that case. Um,

8:16

another similar situation

8:19

where this actually comes up pretty often,

8:21

but , um, the cases of someone with head

8:24

trauma, in our case, it was

8:26

a motor vehicle accident. And

8:29

while awaiting the CT scan

8:31

results to see if

8:33

there was a bleed in the brain, the

8:36

patient just decided , um, you

8:38

know, the patient appears perfectly competent

8:40

and capable and just decides, I don't feel like

8:42

waiting for this. It , I'm fine. I

8:45

shouldn't have come in, I'm fine. And

8:47

starts to leave. And the doctors are saying, we

8:49

have no idea if this person

8:52

had, has impact a brain bleed

8:55

, um, and has, you know, a condition

8:57

that's preventing him from making

9:02

a , a sound decision here. He

9:04

might not have capacity to make this

9:07

decision. And his departure here

9:09

is putting not only himself in grave

9:11

danger because he could die if

9:13

he has a brain bleed going on, but

9:16

also others because he, dr . He,

9:18

you know, he could get in a car and drive , um,

9:21

and, and potentially pass out and obviously

9:24

inre others. So in that case , um,

9:27

the clinician, the , the hos , I mean, sorry, the patient

9:30

was awake, alert, oriented,

9:32

and very assertive about his

9:35

decision to leave. And, and the hospital

9:37

and the clinicians required

9:39

assistance and, and didn't really know what to

9:41

do. The hospital didn't have a policy for folks

9:43

who were in fact competent and

9:46

not suffering from mental illness. But,

9:48

but in a situation albeit

9:50

temporary, where until those test results came

9:53

back, we really didn't

9:55

know and weren't able to assess his

9:57

capacity to make that medical decision

10:00

to leave against medical advice. So

10:03

those are just a couple of examples. It,

10:06

there are so many that come up day

10:08

to day in the hospitals, particularly in emergency

10:10

rooms. And I know we

10:13

need to get to the substance and not just

10:16

talk about example after example, but

10:19

it really does arise with, with

10:21

frequency. So it's surprising to me

10:24

that there are gaps in the law and that so

10:26

many hospitals haven't

10:28

, um, prepared for it in advance and

10:30

don't have policies set up specific

10:32

to their , uh, community and

10:35

their state law issues. So

10:37

I think, I don't know , Alicia , probably the best thing to

10:39

do is talk about, sort of set the landscape

10:41

of what we found from a legal perspective in

10:43

our research and why there's a gap here.

10:47

Right? So every state in the us um,

10:50

has a law in place that will allow a

10:52

physician to hold a patient based

10:54

on mental illness. So I'm sure

10:56

most people know or have at least heard that

10:58

it's often the dangerous to self

11:00

or other standard. So it would

11:02

be if you're a danger to yourself or others based

11:04

on mental illness , often , um,

11:07

at times mental illness is defined where

11:11

it includes the patient actually , um, being

11:13

diagnosed with a , something that's

11:15

a , that's listed in the DSM. Um,

11:19

and another , uh, really complicating factor

11:21

is that many states , um, actually

11:24

exclude , uh, conditions

11:26

like or being intoxicated,

11:28

intellectual disability , dementia,

11:31

and , um, people that are ex , you know, have substance

11:33

use disorder , um, Massachusetts

11:36

, uh, for example excludes

11:39

autism spectrum disorder, developmental

11:42

disabilities, traumatic brain , um,

11:44

injury or alcohol and substance use disorders

11:47

from its definition of what would qu what would

11:49

be considered , um, a mental illness for

11:51

the sake of a , a holding a patient under a

11:53

psychiatric hold. Um, so

11:56

if the patient comes in needing some

11:58

sort of treatment or care and is

12:00

intoxicated, then that

12:03

patient , um, doesn't have capacity to

12:05

consent to treatment, but doesn't also,

12:07

doesn't necessarily have the capacity to leave against

12:09

medical advice. So it

12:11

kind of, again, leaves the provider in a really difficult

12:14

situation. Um, so that often

12:18

means that the provider has to choose basically

12:20

between one of three options, which would be

12:22

, um, allowing the patient to

12:24

leave against medical advice or a MA , um,

12:27

using the state's kind of mental health

12:29

hold or psychiatric laws and

12:32

applying that to a patient that doesn't actually have

12:34

a a isn't experiencing mental illness,

12:36

especially under the definition included

12:39

in the regulation or the statute, or

12:42

determines that the patient lacks capacity. Um,

12:44

and has the hospital staff , uh, detain

12:46

the patient until hopefully the patient lacks,

12:48

you know, regains capacity or

12:50

some other decision maker. It's whether

12:52

it's a surrogate or a guardian is found to start

12:55

making medical decisions on behalf of that

12:57

patient. Um, so

13:01

again, kind of these choices all

13:03

kind of lack this area between, you know, ethics

13:08

and legal and the law and

13:10

, um, it's that balancing

13:12

act between determining, you know, balancing

13:15

patient autonomy against, you

13:17

know, the provider's paternalism and

13:20

beneficence. Um, but

13:22

it's a really important issue like Wendy said, and

13:24

it's a really hard decision to make , um,

13:26

like we both discussed. And I think we're

13:29

especially seeing now more than ever, that more patients

13:31

are actually choosing to lay , to leave against

13:34

med advice . Um , it used to be fairly uncommon

13:36

and it's happening more and more often, and

13:38

in those situations, obviously those patients that are

13:41

at a much greater risk and inevitably

13:43

, um, there's a much higher

13:46

risk that legal action will unfold

13:48

, um, after the fact. Those cases where

13:50

patients have left against medical advice

13:52

, um, are much more likely to

13:55

leave to lead to litigation. Um,

13:58

so I guess I'll turn it back to Wendy and ask

14:00

her kind of what, what problems do you think

14:02

are, you know , created when

14:04

you hold a patient under a psychiatric hold , you

14:07

know, for under a psychiatric

14:09

hold when they, you know, that's unrelated

14:12

to mental illness. What do you think like the most

14:14

important consideration is for providers?

14:17

Yeah, that's a good question. You know, when you tee

14:19

it up the way you just did, which is the three options

14:22

that the clinicians are basing, they're

14:25

, they're fraught with risk. And I think that's why

14:27

we get a lot of clinicians and risk managers

14:29

at hospitals who are just almost frozen

14:32

in this situation. You know, as

14:34

you said, if the patient's

14:36

allowed to leave a MA and you have

14:39

a patient who walks

14:41

out, but the, the clinical record

14:43

looks like the patient clearly lacked capacity

14:45

to make that decision, then, you

14:47

know, not only is the patient at severe

14:50

risk of harm oftentimes , but

14:53

the , the hospital and the provider are at risk for,

14:56

for litigation as you, as you

14:58

described. The

15:00

second option of, you know, sort of

15:02

incorrectly using the state laws

15:04

for an emergency hold based on mental illness,

15:07

even when you know the patient does not

15:09

have mental illness, it is really

15:12

extremely difficult , um, to

15:14

accomplish for one thing and

15:17

it doesn't really solve the problem. So

15:20

it's difficult to accomplish because it's

15:23

typically gonna require mental health professional

15:25

come in , consult, make a determination of mental

15:28

illness, which you know, is

15:30

not likely in a alert oriented,

15:33

competent patient that doesn't have signs and

15:35

symptoms or previous issues, you know, diagnoses

15:38

of mental illness. Um,

15:42

also if, if you get the hold that

15:45

the 72 hour Texas I , it's 72

15:47

hours, if you get the hold, it doesn't really

15:49

solve the problem at all because those

15:51

state laws typically require

15:54

that the patient once medically stable,

15:56

be delivered to a mental health facility to

15:58

treat the mental illness. So

16:00

if that type of hold is used, the patient's

16:03

departure might be prevented,

16:05

but you haven't solved much else. Now,

16:07

the patient's under a court order

16:10

to be delivered to a mental health facility

16:12

once they're medically stable, it's

16:14

not the answer. It's sort of dramatic and

16:18

traumatic for the patient and the family, and

16:20

it doesn't really solve the problem. Um,

16:23

it's kind of like trying to fit a square

16:25

peg in a round hole and, and,

16:28

you know, I guess I

16:30

personally am in favor of anything

16:32

that protects the patient from, from

16:34

that walk out the door where they're exposing

16:37

themselves to immediate , um, you

16:39

know, significant risk of death

16:41

or , um, other significant

16:44

health problem. But,

16:47

but this isn't the right answer. And

16:49

so you have to move

16:51

to the next option, really,

16:53

which is making a

16:56

determination of capacity.

16:59

I have to tell you from, from my practical

17:02

experience, day to day in advising hospitals

17:04

on these issues, I , I

17:06

don't find that clinicians are really trying

17:09

to use the, the psych holds

17:11

very often. Um, I think

17:13

they can typically tell the difference and they don't

17:16

try to initiate the mental health holds. Um,

17:19

but in my experience, they

17:23

don't often enough assess

17:26

formally assess capacity. In

17:28

other words, I think, you know, adult patients

17:31

are typically presumed

17:33

to be competent and have capacity to

17:35

make the decisions that they're making

17:37

, um, unless

17:39

they have an open and obvious mental illness. And

17:42

so I think the

17:44

real step that I would

17:46

like to see clinicians move toward is

17:49

a more formal assessment of,

17:52

of capacity. Um, what

17:54

do you think, Alicia ?

17:57

Yeah, I agree, and I, I think

17:59

, um, just so people have

18:01

an understanding kind of, of what capacity looks like

18:03

or what a capacity determination , um, may

18:05

look like, it's basically a , you know,

18:08

the physician or the provider, often a psychiatrist will

18:10

kind of come in and judge whether the, the

18:12

patient , um, really understands the risks

18:15

and benefits involved in whatever

18:17

the treatment is, and they

18:19

can actually make an informed decision regarding

18:21

that treatment. Uh , I think what makes

18:23

it difficult is even if the person, you know, then

18:26

if the person is found

18:28

to lack capacity to make decisions,

18:31

they can't make a decision

18:33

about their treatment at that point. They can't

18:35

decide to leave, but they also can't, you know, authorize

18:38

treatment. So you're kind of just stuck in a situation

18:40

in which you're in

18:42

limbo, so to speak. But , um,

18:45

I also think it's very important for

18:47

kind of the physician to go through this process

18:50

and really try to understand the patient's

18:53

point of view or involve the patient's family , um,

18:55

to try to understand the situation to the greatest

18:58

extent possible. Um, but

19:00

then again, if the patient is still electing

19:02

to leave against medical advice and lacks

19:05

capacity , um, then

19:09

the , the only real, you know, option that

19:11

begins to take unfold

19:13

at that point would be finding a surrogate or,

19:16

you know, a guardian to start making those medical

19:18

decisions for the patient. Um, so

19:22

I guess I would

19:24

ask Wendy, like, kind of what is it in

19:26

your experience or when you've seen these things happen, like what does

19:29

that usually look like in terms of finding

19:31

a surrogate , um, having

19:33

that surrogate decision maker come in and

19:35

start making those decisions?

19:37

Yeah, yeah, happy to talk about that. It can

19:39

be tricky. And again, this is something

19:41

that when it, when it does come up, I'm , I'm

19:44

often, I'm sure other healthcare lawyers that

19:46

are listening to this are often on,

19:49

on the phone helping the risk managers

19:51

or the , um, clinicians walk through

19:53

the acceptable decision

19:55

makers in the order of priority. Um,

19:59

it can be tricky. So surrogate decision

20:01

makers are designated by document or

20:03

by statute. Typically

20:06

if, if the person has, you know,

20:08

a healthcare directive or other

20:10

document that specifies who's gonna make their medical decisions

20:13

for them in the event they become unable

20:15

to make decisions for themselves, then

20:18

that, you know, physician's

20:21

determination that the patient lacks capacity

20:24

just automatically sort

20:26

of triggers the, the

20:29

decision making to go to the identified

20:32

surrogate. And that's great if it's, you

20:34

know, identified in the document and

20:36

the surrogate who is identified in

20:38

the document is readily available

20:41

to the clinicians and involved in the

20:43

patient's care and treatment. That's sort

20:45

of the easy case. That's not always the,

20:47

the case. As you can imagine, oftentimes

20:51

patient doesn't have a documented

20:53

surrogate decision maker, or

20:56

the document is old or

20:58

identifies someone who is no longer available

21:01

or around or responsive or in

21:03

the patient's life and, and the clinicians

21:05

can't reach them. It oftentimes takes

21:08

some time to work through those issues.

21:12

Um, for people who don't have documents, you

21:14

know, state law often specifies who

21:16

the surrogate decision makers are and the

21:19

priority list in which they , um,

21:23

they take over. So

21:25

like in Texas, the spouse of course,

21:28

a a living spouse has first priority

21:30

and is the surrogate decision maker. And if there

21:32

is no living spouse, then it goes to adult

21:35

children. Um, it's

21:38

important of course, and , and typically

21:40

when a patient is in the hospital,

21:42

at least for an extended period of time, the

21:45

the family and the surrogate decision makers

21:47

are sort of well known to the clinician team.

21:51

And a , a lot of times these things are

21:53

sort of thought through and the , and the documents

21:55

are in place and everything's fine when the patient, you

21:58

know , to go back to our example, the

22:00

, um, cancer patient who, you

22:03

know, was, had been in the hospital a lengthy period

22:05

of time, and so it was not a sudden situation.

22:08

It can be very different in the emergency

22:10

room , um, when a patient's

22:12

there, they may have an advanced directive,

22:15

but it may not be with them . And , um,

22:18

you know, obvious other issues with

22:20

respect to the hospital staff, even

22:22

knowing who the surrogate

22:25

decision makers would be. When

22:28

you think about it though, the,

22:30

the question I get a lot is, let's assume that

22:32

you have an identified surrogate

22:35

and that , that now the physician's

22:37

determined that that patient doesn't have capacity

22:39

to make this decision to leave against medical

22:42

advice or refuse treatment. So

22:44

now we have an identified surrogate who

22:47

is there and able to help. At

22:50

that point, the surrogate literally begins

22:52

speaking for the patient. So I find

22:54

the hospitals and clinicians often in

22:57

this situation still are nervous and

22:59

calling me to confirm that they can hold a patient like,

23:02

quote unquote , against the patient's will, based

23:05

on a decision by the surrogate. But

23:07

the thing is technically, and I think you said

23:09

you've seen this too, Alicia , but technically in that

23:11

case, you're not holding the patient against

23:13

the patient's will. The patient's will, when

23:16

they were confident, was to defer

23:19

to this surrogate decision maker. So now

23:21

the surrogate is speaking for the patient. So

23:23

that's not an involuntary hold, it's

23:26

just that the surrogate is standing in the patient's shoes

23:29

for the purposes of giving consent and making

23:32

medical decisions at that point. It's

23:35

a nuance, but it's important when you're, you

23:37

know, right in the thick of, of handling all

23:40

these things and the clinicians sometimes are still

23:42

thinking, gosh, I'm holding against this,

23:44

patient's will. Um , but

23:46

that's not really the case. But

23:49

I think , um, so

23:52

I guess my point here is just

23:54

that, you know, the , this, whether

23:56

or not you have a surrogate available is

23:59

very fact specific. Hopefully

24:01

you do, and that really helps to

24:04

resolve the problem. If you don't,

24:06

and there's no one identified

24:08

by document and no family at the bedside, and

24:11

you're trying to identify things about the patient, but

24:13

you don't have an obvious surrogate, then

24:17

what happens, Alicia , when the clinical

24:20

team is trying

24:22

to deal with this situation where

24:25

there's no surrogate and

24:27

we're having to continue to talk about holding

24:29

a patient against their will. 'cause we've made

24:32

an overt determination that they're

24:34

incapable of making medical decisions at

24:36

this point. I, I know

24:38

we've talked about that there's a gap in the law, but

24:41

I think what we haven't talked about is that some states have

24:43

actually have addressed this head on and there are

24:45

some statutes. So I wonder if those

24:48

can sort of help the

24:51

clinicians in the states that don't

24:53

have , um, statutes on this maybe

24:55

looking to the states that do is

24:57

helpful in crafting policy.

25:01

Well , yeah , um, you're right, and I think you

25:03

set up the problem exactly there for

25:05

people to really understand kind of what

25:08

this would look like on the ground. And a

25:10

few states have passed legislation

25:14

that's specifically applies in situations

25:16

where it needs to be an emergency

25:18

hold that's faced more on medical illness

25:20

than mental illness. And

25:23

so these are often called medical

25:25

holds. And basically the way that the

25:27

laws work in those few states who've passed

25:29

them thus far , um, is

25:32

that it allowed the patient who lacks capacity

25:35

for non-mental health reasons to be held

25:37

against their will for a , a certain set

25:39

period of time, essentially to

25:41

prevent further injury to themselves or to others.

25:44

Um, so Virginia has passed a law , uh,

25:46

basically the way Virginia's law works

25:48

is that with the advice of a licensed

25:51

physician who has already tried to

25:53

, uh, get informed consent from

25:55

the patient who's an adult, then

25:58

they will go to a court or a magistrate

26:00

and seek an order , um,

26:03

authorizing the temporary detention of the

26:05

person in the hospital or the emergency

26:08

department. Um, and this can even allow

26:10

for testing and observation and even treatment of the

26:12

patient , um, once that

26:14

order is finalized. So basically,

26:16

in order for that to happen , um,

26:19

there has to be probable cause , uh,

26:21

to believe that the patient is incapable of

26:23

making an informed decision and

26:26

that the standard of care , uh, really

26:28

calls for treatment , um, whether

26:30

it's observation or, you

26:32

know, moving forward with actual treatment

26:35

to prevent injury, disability, or death.

26:38

So unless it's authorized

26:40

by the court, the detention cannot last last

26:42

longer than 24 hours. Um,

26:45

if the person regains capacity

26:47

during that time, then of course the patient regains

26:49

control over their own care and treatment and

26:51

then it , the facility either, you

26:54

know, time for the patient to hopefully regain

26:56

capacity or for a surrogate to be found , um,

26:59

to take over and kind of making those

27:01

medical decisions. And I

27:03

think one thing that's really important and interesting

27:05

about Virginia's law particularly is

27:07

that the court will also seek

27:10

the input of the family and kind of making these

27:12

decisions. If there are any sort of objections

27:14

, um, then the court will

27:16

take those into consideration. Um,

27:20

and ultimately I think for providers,

27:22

the most important aspect may be that

27:24

they are given, the provider is given immunity

27:27

from liability thereafter, as

27:29

long as this process is followed for

27:31

any sort of a claim , um, for

27:33

based on lack of consent to treatment. So

27:38

we, we know so far that only a handful

27:40

of states have moved forward in passing

27:42

these laws, so they're not, you

27:44

know, solving the problem, certainly on a national standard.

27:47

So what do you rec think, Wendy,

27:50

of like a hospital or a physician faced with

27:52

a situation like this should do? Um, like

27:54

what the best practices

27:57

or pointers that you would have from your professional

27:59

experience?

28:01

Yeah, so practical steps, I,

28:04

I think, which I already mentioned, is

28:06

if, if there's family involved, if there's

28:09

family available and at the bedside and

28:11

involved in the care, assuming that you have

28:13

all the necessary HIPAA privacy

28:16

issues addressed and authorizations

28:18

and communications are allowed , uh,

28:20

with those people, have the family persuade

28:23

the patient to remain or to accept

28:25

the treatment that , I mean, that's your,

28:27

that's your first line of defense, that

28:30

they're often the most persuasive with the patient and

28:33

can at least, if nothing else,

28:35

buy you time and get the patient, you

28:37

know, as I said in the, in the cancer patient situation,

28:40

it was the family that convinced the patient to

28:42

stay long enough to become unhooked

28:45

and , um, and, you know, stabilized

28:48

for discharge. You know, just

28:50

to wrap that story up, when, when

28:52

the family convinced the patient to stay for, for

28:55

long enough to do that, she ultimately

28:57

calmed down and talked to

28:59

the clinicians and ended up deciding to

29:02

stay. Um, so

29:05

involve the family. Um, second,

29:08

hopefully the hospital has a policy that can be

29:10

followed to help with this, if not develop

29:14

one as soon as the immediate case

29:16

resolves. Um, ideally

29:19

a policy would wa help the provider walk

29:21

through the necessary steps from assessing

29:23

capacity forward, but

29:25

without a policy, I say,

29:28

you know, ultimately the facts and circumstances

29:30

of each situation, including

29:32

the likelihood and gravity of the risks that

29:35

the patient is gonna face if

29:37

they proceed with the course of action that they're

29:40

proposing , will likely dictate

29:42

the links to which the hospital and the

29:44

physicians or clinicians are willing

29:46

to go to overrule the patient's decision

29:49

making authority and autonomy. So

29:52

it's always gonna be a balancing act. Um,

29:55

in the event that the clinicians do

29:57

decide that, you know, sort of involuntary

29:59

detention needs to be undertaken

30:02

for a brief time , um,

30:05

it should be strictly limited to the

30:08

duration of time required to, you

30:10

know, solve the issue or request judicial support.

30:14

Probably that would look like appointment of a guardian.

30:17

Um, but the reason I say it

30:19

could resolve on its own is because like

30:21

, take the example of the motor vehicle accident

30:24

head injury patient who

30:26

was insisting on leaving before

30:29

the imaging came back. So

30:31

that involuntary hold, which

30:34

was undertaken, resolved

30:37

itself as soon as the imaging

30:39

came back. At that point , um,

30:42

the risk of letting the patient walk

30:44

out without that knowledge was

30:46

resolved. And in that case, he

30:49

did have a significant , um,

30:52

situation going on clinically, and he voluntarily,

30:54

you know , undertook to stay at

30:57

that point. Um, so sometimes

31:00

the mere detention itself will

31:02

solve the problem. Uh, but if

31:04

it doesn't, then you know, your team , your legal

31:07

team's gonna have to move quickly to, to

31:10

get judicial intervention and

31:12

appointment of a temporary garden guardian.

31:14

If you don't have a surrogate decision maker

31:16

, um, as the

31:19

clock ticks towards, you

31:21

know, your ability to hold that patient

31:23

any longer , um, I

31:25

think it probably goes without saying, but during

31:28

any whole period, the patient should

31:31

only be treated to the extent necessary

31:33

to preserve life and function. This

31:35

is similar to what they do in the emergency room

31:38

when faced with an unconscious patient.

31:41

Consent is presumed sort of to

31:44

preserve life , uh, but that

31:46

doesn't override a patient's

31:48

decision to refuse treatment. So

31:51

remember, we're talking about patients

31:53

who lack capacity, but it doesn't mean

31:55

that you can make decisions for them regarding

31:58

things that are not emergent and life threatening.

32:02

But, you know, as you can hear as

32:04

we talk about this, like it's not a perfect science,

32:07

it's gray, it's extremely fact

32:09

specific , and with gaps in the law,

32:12

there's always gonna be a bit of uncertainty.

32:15

So, Alicia , I'm curious what you're

32:17

hearing with respect to best practices

32:19

and , um, what I might have left

32:21

out on, you know, sort of just the best ways to

32:23

deal with this issue and prepare for it .

32:27

Uh , yeah, I think, you know, I

32:29

try to tell providers that they should, you

32:32

know, reach out to their state regulators kind

32:34

of try to get that , uh, guidance in advance

32:37

in terms of, you know, how they

32:39

should be approaching these situations. Another

32:42

resource that I always like to encourage,

32:44

you know, providers to use is their clinical

32:47

ethics department, if they have one, or even an

32:49

ethicist that works clinical ethicist that

32:51

works on their staff , um, to

32:53

go to them for kind of to tap their,

32:56

you know, VATS experience at kind of dealing

32:58

with very, very difficult situations

33:00

like this. That's essentially all they do every

33:03

day . And dealing with families and patients , um,

33:06

and kind of taking that guidance and like,

33:08

you know, you said drafting a policy

33:10

and, and incorporating, you know, having your council

33:12

or outside counsel help you to

33:15

kind of structure that policy , um,

33:17

within the bounds of the law and as most

33:19

appropriate, you know, for that

33:22

particular , um, hospital or entity.

33:25

Um, and then like you said, be prepared

33:27

upfront . Um, understand the laws and expectations

33:30

in your state. Um, have

33:33

that really comprehensive policy that

33:35

you've spent time thinking about in place before

33:38

the situation arises. That's an emergency

33:41

situation when everybody's , um, stressed

33:43

and unprepared and then, you

33:45

know, every second counts. And so more mistakes

33:48

may made. So it really, you know, I guess this is

33:50

just like a lot of other scenarios where prevention

33:52

really can help in when this

33:55

actually does occur, because it is, like we

33:57

talked about , um, becoming more and more common,

33:59

I think is medical technology and

34:01

, uh, just, it's

34:04

just becoming a situation that's continuing to

34:06

arise. So, but

34:09

I think, like the question that clients always ask

34:11

me seems to be like, where's the liability?

34:14

Um, how should clients assess these risks?

34:16

So Wendy, what do you think about, you

34:18

know, what is the best way to look at the risk?

34:21

That's such a good question, and I know that we

34:23

both get it all the time. You

34:26

know, there's, there's risk , um,

34:29

in each, each prong, each decision,

34:31

no matter which way you turn, there's risk. Um,

34:33

I get questions from clients about

34:37

cases, liability exposure for false

34:39

imprisonment when they hold against, hold a

34:41

patient against their will , uh, what if

34:43

they hold too long? Um, obviously

34:46

on the other side you have risk releasing

34:49

a clearly documented incompetent

34:52

patient in an unstable medical condition

34:54

that that's, you know, gonna expose themselves

34:56

and others to risk potentially with

35:00

respect to how to assess those risks to

35:03

me, I mean, I don't mean to be kind of so practical

35:05

in big picture, but it's sort of like, which

35:07

lawsuit would you rather face? I

35:10

, um, I know that Alicia

35:12

, you and I have different sort of,

35:14

I might be a little bit more , um, practical

35:17

in this regard in that I'm doing hospital operations

35:20

work. I used to do med mental liability

35:22

defense for providers.

35:24

And so, you know, I kind of have the

35:27

answer of, I'd rather defend

35:30

a lawsuit, a false imprisonment lawsuit

35:32

from a well patient , um,

35:36

who was, you know, protected so to

35:38

speak against their will. But, but

35:41

you know, not given like invasive

35:44

non-emergent treatments against their will, but

35:46

just, you know, maintain, remain

35:48

, sorry, held longer than they wanted

35:50

to be held against their will in an emergency

35:52

room so that we could make sure that they actually

35:55

were , um, competent to make the decisions that

35:57

they were making. So I'd rather defend that

35:59

case any day than the case

36:02

, um, brought by the family of

36:04

a patient who walked out in an incredibly

36:07

compromised position, and we just

36:09

let them go and, you know, something terrible

36:11

happened. So it , it's

36:13

always gonna be a risk assessment. And like I said

36:15

earlier, it kind of depends on, on

36:18

the gravity of the risk that the patient

36:20

is facing. And that's a clinical situation,

36:22

right? If , if there's a bit

36:24

of risk to their walking out,

36:27

but it's, you know, maybe not all

36:29

that severe and not all that likely , um,

36:33

and the patient, you know, could face some

36:35

risk in the coming days, but it's not eminent

36:37

. All those things go against a

36:39

hold. Um, but in the,

36:42

the sort of extreme circumstances that we've been talking

36:44

about, you know, I think that,

36:46

that it's better to face the pa

36:49

pause imprisonment claim and

36:52

limit the hold

36:55

in the ways that we've discussed today.

36:59

Ideally, the best way to resolve this

37:01

is that every state needs to address it. Right.

37:04

And so I wonder, Alicia

37:06

, I know you're sort of policy

37:10

focused and have that big picture in

37:12

mind. Do, do you think that

37:15

eventually every state will address this gap?

37:17

What do you think is gonna happen?

37:19

Uh , I would hope so. I mean, it looks like

37:21

we're moving in that direction as a few more states

37:24

have added , um, additional laws, but

37:26

I thinks important for, you

37:28

know, hospitals and hos , hospital associations,

37:31

patients, providers and families to kind of reach out

37:33

to their state legislatures and, and

37:35

kind of to try , try to create more awareness , um,

37:38

about this issue. But, you

37:40

know, I think just on the ground, like

37:42

we've talked about, just be prepared. I think really

37:45

for providers that means

37:47

having a plan or a policy and then

37:49

kind of for patients and families too, like

37:51

having those conversations with your family, having,

37:54

you know, your power of attorney or your advanced directive

37:57

ready and that your family knows or has a

37:59

copy of, you know, that if there's an emergency

38:01

, um, so then , you know, they

38:03

know what decisions you want to be made. They

38:06

already have the plan in place , they already have the

38:08

policy there, and they can just immediately

38:10

start making those decisions for you, which

38:12

is a lot less worry for everybody, honestly.

38:15

So, yeah, I mean, I'm hopeful that

38:18

more states will recognize that this is an issue because

38:20

it certainly , um, needs to be addressed.

38:23

It does. It was a , it was a really fun article

38:26

to work on and to write, and I'm glad that

38:28

a HLA let us do this podcast.

38:31

Me too . It was, I had a really , um,

38:33

it was a very interesting article to write, a lot of

38:36

conflicting , um, rights and

38:38

needs, so that always makes it more complex.

38:40

Yeah, absolutely.

38:50

Thank you for listening. If you enjoy

38:52

this episode, be sure to subscribe

38:54

to a HLA speaking of health law wherever

38:56

you get your podcasts. To

38:59

learn more about a HLA and the educational

39:01

resources available to the health law community,

39:04

visit American health law org

39:06

.