I apologize for the stagnant blog of late. I’ve been working on an idea or two that hasn’t jelled yet. Meanwhile, I ran across a familiar yet troubling occurrence the other day: The use of a psychiatric hold on an inpatient with no psychiatric disorder but who was refusing life-saving medical treatment.
My comments are limited to California, as each state has its own laws about psychiatric holds, a.k.a. involuntary civil commitment. The Lanterman-Petris-Short (LPS) Act, signed into law by Governor Ronald Reagan in 1969, made California the first state to employ a “dangerousness” standard to justify psychiatric holds. Prior to this, mental patients were generally committed on the basis of “need for treatment.”
Dangerousness is defined in the LPS law as danger to self (usually interpreted as intentional self-harm or suicide risk, not mere recklessness), danger to others, or grave disability (inability to provide for one’s own food, clothing, or shelter). For LPS provisions to apply at all, the alleged dangerousness must be the result of a mental disorder or chronic alcoholism. The LPS Act is part of the state Welfare and Institutions Code, sections 5000 and following. The initial 72-hour hold in California is called a “5150” as it is authorized in section 5150 of the WIC. Here is a brief history of California mental health law.
Virtually all other states adopted psychiatric commitment laws similarly based on dangerousness after the US Supreme Court ruled in O’Connor v. Donaldson, 422 U.S. 563 (1975) that, “There is…no constitutional basis for confining such persons involuntarily if they are dangerous to no one.”
Let’s turn now to a non-psychiatric setting, the general medical-surgical hospital. Some hospitalized patients cannot make informed medical choices, or they may express unpopular, “crazy” opinions. At one extreme are patients who arrive unconscious and cannot express a choice at all. In the typical emergency situation, doctors and nurses reasonably assume such a patient wants to receive lifesaving treatment, and proceed accordingly. Other patients may be delirious, in great pain, or suffering from a brain injury or stroke. They may express preferences that make no sense to the medical professionals, choices that seem “crazy.” (Questions about decision-making capacity almost never arise when the patient agrees with the doctor, only when there is disagreement.)
These situations have nothing to do with psychiatric illness. It is well recognized that some patients lack the capacity to make medical decisions while in the throes of severe illness or injury. As with the unconscious patient, lifesaving treatment proceeds with assumed consent. No one lets a confused delirious patient stagger out of the hospital just because he lurches blindly in that direction.
More challenging ethical dilemmas arise when a refusing patient is simply uneducated or from another culture. When I was a medical intern, I saw an elderly Filipino man with intestinal bleeding. He had never been seriously sick before, and did not understand Western medicine. He refused blood transfusion on the theory that “the more you put in, the more will leak out.” The senior medical resident requested a psychiatry consult to declare the man incompetent to make such decisions. (This was a mistake, as I’ll explain shortly.) He then received transfusions against his will. Soon thereafter the patient refused surgery needed to stop the bleeding. The surgeon proclaimed he would never operate on an unwilling patient — but in an odd twist, when the patient lapsed into unconsciousness, he was “no longer objecting” and the surgery proceeded. The patient died in the post-surgical ICU, never having regained consciousness.
This sad case highlights a few important points I’ll just touch on here. First, assessment of medical decision-making capacity is not a special skill of psychiatrists. All physicians are supposed to do this routinely (albeit usually implicitly). Internists need to know whether their patients can give informed consent for medical treatments, and surgeons should likewise assess the capacity of their patients to consent to surgery. “Competence” is an overarching legal status decided by a court, not by medical or psychiatric assessment alone. Perhaps the most obvious point: Once a patient’s consent or refusal is considered valid, its ethical force doesn’t diminish when the patient falls asleep or lapses into unconsciousness.
Now, how does the “5150” apply in the non-psychiatric hospital setting? Hardly at all. Patients with severe mental illness are sometimes hospitalized for unrelated conditions, and occasionally meet dangerousness criteria for a 5150 hold while receiving medical treatment. But the more common situation is the misuse of the “5150” to prevent an apparently lucid patient from refusing lifesaving medical or surgical treatment and leaving the hospital. This is startlingly common — it startles me, anyway — and happened just the other day at my hospital.
It should be obvious why the 5150 cannot be used this way. First, it only applies to a situation in which a mental disorder or chronic alcoholism leads to dangerous behavior. Second, refusal of lifesaving medical treatment is not “danger to self” as the law is normally understood. Third, even a legitimate 5150 hold only compels three days of psychiatric evaluation and protective custody; it says nothing about forcing medical or surgical (or even psychiatric) treatment on anyone.
The solution is for physicians to assess the medical decision-making capacity of their own patients. Where available, a hospital ethics consult can clarify the relevant issues, but this is usually optional. Patients who possess medical decision-making capacity have the right to refuse treatment and to leave the hospital if they wish, even if they die as a result. Those who lack such capacity can be treated, like the comatose or delirious patient, with assumed consent. However, a superior court determination of incompetence to make medical decisions is required to force non-emergency medical or surgical treatment. LPS law is silent on these matters.