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Healthcare Risk Control (HRC) member recently asked for guidance related to a hospital's ability to "hold" a patient who wants to leave but lacks the ability to make decisions, including the decision to leave again medical advice (AMA).
In our response,
HRC notes that a competent adult's decision to leave the hospital AMA is the patient's legal right, even if the physician believes the patient is exercising poor judgment. However, physicians have an obligation to assess whether the patient requesting discharge AMA has the mental capacity to make an informed refusal of continued inpatient care. Without decisional capacity, the patient cannot provide an informed refusal of care or informed consent to discharge AMA.
Medical conditions that may affect decisional capacity include delirium and dementia; conditions such as sepsis or reactions to certain treatments or medications may also temporarily affect a patient's decision-making capacity.
For temporary conditions, organizations may be able to look at preventive strategies—for example, pharmacist review of prescribing for risk factors or medications that can cause confusion—and strategies to identify and treat such conditions. In addition, some facilities have programs to assist in the treatment of patients with dementia and delirium; see
External Resources below.
A formal assessment of the patient's decision-making capabilities—aided by a mental or behavioral health consultation, if possible—should be conducted to determine whether the patient has the mental capacity to make medical decisions. Although psychiatrists may be particularly helpful in determining the extent to which a patient's mental or behavioral illness impairs capacity and whether it can be alleviated, any licensed physician may make a determination of incapacity. Many clinicians, however, lack formal training in capacity assessment and can benefit from the use of a standardized protocol or tool.
The hospital should have a policy that requires social services or another designated role to determine whether a family or friend who has been involved with the patient's care is available and to determine whether the patient has a living will, legal guardian, or healthcare power of attorney. If the patient has such a surrogate, a proxy consent can be obtained if the patient does not have decision-making capacity and requires urgent treatment to save his or her life or to prevent serious impairment.
If no surrogate decision maker who has healthcare proxy paperwork is available, the healthcare organization would need to go to court to have the patient adjudicated as incompetent; however, it is not easy to persuade a court to rule a person incompetent. Courts often hold emergency hearings so this issue can be addressed on an expedited basis, depending on the local court rules and procedures. While it is frustrating to the care provider, an organization cannot keep a person in a hospital against his or her will for an extended period without authority to do so. (If the hospital feels the person does not have a safe place to which he or she can be discharged, that issue is different and would necessitate social services involvement for transfer to an appropriate level of care.)
Many states have a statute that addresses situations in which a patient wants to leave but lacks the capability to make decisions owing to a medical condition such as delirium or dementia. In the absence of a statute, courts may apply a tort law concept known as the "emergency doctrine." That doctrine would allow a physician or hospital to treat a patient who needs immediate or urgent treatment in order to preserve his or her life or prevent a serious health impairment, in a circumstance where it is impossible to obtain a timely and valid consent or informed consent from the patient or from a surrogate authorized to provide consent.
In such situations, a medical hold may be appropriate to protect the person for a limited period as may be clinically necessary, and with regard to seeking court intervention, if necessary. Most states have judges on 24/7 on-call status to address such situations. They will hold emergency hearings rapidly—sometimes by phone or videoconference—and come to the hospital if necessary. Consult with hospital legal counsel to determine whether the hospital has a formal process in place through which court intervention may be requested for such emergency situations.
Having hospital policies and procedures in place that address these situations may greatly aid staff in determining what to do should such a situation arise, and may mitigate the legal risk, particularly in the absence of a statute. According to
this article (which requires a subscription or purchase),
[C]ivil commitment statutes were not intended for, and generally do not address, the needs of the medically ill patient without psychiatric illness. Civil commitment is permitted for patients who pose a danger to themselves or others, or who are gravely disabled, specifically as the result of a mental illness, and allows the transport of such individuals to facilities for psychiatric evaluation. It does not permit detention for medical illnesses nor the involuntary administration of medical treatments. Therefore, the establishment of hospital policies and procedures may be the most appropriate means of detaining medically hospitalized patients who lack capacity to understand the risks of leaving the hospital, in addition to mitigating the potential tort risk faced by the physician for acting in a manner that protects the patient.
Hospital policies should include multiple strategies to prevent and manage issues associated with delirium, dementia, and other medical conditions that may reduce decision-making capacity. Policies should also address restraint use (both physical and chemical), stating that restraint should be considered only
as a last resort and that it must be very time limited. See the guidance article on
Restraints for more information.
If assessment determines that a patient does not possess the mental capacity to make medical decisions, this fact must be noted in the patient's medical record and communicated to all members of the patient care team. Communication of the assessment is important, as shift changes may result in uninformed staff members releasing a patient who does not possess decision-making mental capacity and demands to leave AMA.
External Resources
The recommendations contained in Ask HRC do not constitute legal advice. Facilities should consult legal counsel for specific guidance and develop clinical guidance in consultation with their clinical staff.