Powerpoint

The Right to Refuse The Right to Refuse TreatmentTreatment

Brenda Keller, M.D.Brenda Keller, M.D.

Thomas Magnuson, M.D.Thomas Magnuson, M.D.

ObjectivesObjectives

Elucidate the concept of informed Elucidate the concept of informed consentconsent

Define power of attorney and Define power of attorney and guardianshipguardianship

Discuss refusal of treatment issuesDiscuss refusal of treatment issues Describe how to proceed with an Describe how to proceed with an

evaluationevaluation

Case OneCase One

Refusal of medicationRefusal of medication– 68 year old female68 year old female– Diagnosis of schizophrenia for 40 yearsDiagnosis of schizophrenia for 40 years

Severely illSeverely ill Never able to live in the communityNever able to live in the community

– Guardianship established long beforeGuardianship established long before– Order written to give an injectable form Order written to give an injectable form

of an antipsychotic if she refused oral of an antipsychotic if she refused oral antipsychoticantipsychotic

Case OneCase One

The patient refused to take the oral The patient refused to take the oral medicationmedication– Despite the order, and the consent of the Despite the order, and the consent of the

guardian, the nursing home refused to guardian, the nursing home refused to give the IM antipsychoticgive the IM antipsychotic

– They claimed “The patient has a right to They claimed “The patient has a right to refuse treatment.”refuse treatment.”

– The medication is essential for her healthThe medication is essential for her health She denies she has schizophreniaShe denies she has schizophrenia Noncompliance will lead to hospitalizationNoncompliance will lead to hospitalization

Case TwoCase Two

Leave AMALeave AMA– 88 year old female with severe Alzheimer’s 88 year old female with severe Alzheimer’s

DiseaseDisease Lived in the facility for two yearsLived in the facility for two years

– Only family is unemployed son who lives in the Only family is unemployed son who lives in the patient’s homepatient’s home Her money is going down to the point the home will have Her money is going down to the point the home will have

to be soldto be sold The son is her DPOAThe son is her DPOA

– He visits or calls rarelyHe visits or calls rarely– Usually never at treatment planning meetingsUsually never at treatment planning meetings

He tells the administrator that he desires to take his He tells the administrator that he desires to take his mother home “because that is where she belongs.”mother home “because that is where she belongs.”

Case TwoCase Two

Naturally the nursing home staff is Naturally the nursing home staff is worriedworried– The son does not seem to understand the The son does not seem to understand the

level of functional support that his mother level of functional support that his mother needsneeds When he asks her if she wants to go home she When he asks her if she wants to go home she

says ‘Yes.”says ‘Yes.” When the nursing staff asks she says “No.”When the nursing staff asks she says “No.” He later notes that “a friend” may help him care He later notes that “a friend” may help him care

for herfor her– This friend is never seen, despite the facility asking This friend is never seen, despite the facility asking

the son to bring the friend by to learn how to care for the son to bring the friend by to learn how to care for herher

Case ThreeCase Three

76 year old demented white male who 76 year old demented white male who refuses to bathe at allrefuses to bathe at all– Becomes combative when approachedBecomes combative when approached– Daughter is DPOA and is embarrassedDaughter is DPOA and is embarrassed

She wavers between bathing and leaving him beShe wavers between bathing and leaving him be

– He has developed infections and skin problems He has developed infections and skin problems from his poor hygienefrom his poor hygiene He has diabetes and vascular diseaseHe has diabetes and vascular disease Other residents complain of his smellOther residents complain of his smell

– He is incontinent of urine at timesHe is incontinent of urine at times– His roommate yells at himHis roommate yells at him

Problematic refusalsProblematic refusals

EatingEating BathingBathing AmbulatingAmbulating MedicationsMedications Other therapies and treatments Other therapies and treatments Appointments Appointments Toileting Toileting

Basic ConceptsBasic Concepts

Informed ConsentInformed Consent– A legal conceptA legal concept

An agreement to do something or allow something to An agreement to do something or allow something to happenhappen

– Take a medication, e.g.Take a medication, e.g. Made with complete knowledge of all relevant factsMade with complete knowledge of all relevant facts

– Risk versus benefitRisk versus benefit Adverse events which may occur due to the medicationAdverse events which may occur due to the medication Improvement due to taking the medicationImprovement due to taking the medication

– Available alternativesAvailable alternatives Not taking the medicationNot taking the medication Other medicationsOther medications Nonpharmacological treatmentsNonpharmacological treatments

Definitions Definitions CapacityCapacity

– Relates to sound mindRelates to sound mind– Intelligent understanding and perception of one’s actionsIntelligent understanding and perception of one’s actions– Physicians and psychologists determine capacityPhysicians and psychologists determine capacity

ConsentConsent– An act of reason and deliberationAn act of reason and deliberation– Unaffected by fraud or duressUnaffected by fraud or duress

AssentAssent– Agreement, usually through deliberationAgreement, usually through deliberation– Patients can assent even when they cannot consentPatients can assent even when they cannot consent

Patient agrees to take the medication though they have a limited Patient agrees to take the medication though they have a limited understandingunderstanding

Power of Attorney has consented for the patient to take the Power of Attorney has consented for the patient to take the medicationmedication

Not receiving assent from the patient does not preclude giving the Not receiving assent from the patient does not preclude giving the medication medication

Where do “Patient’s Rights” fit Where do “Patient’s Rights” fit in here?in here?

A bit tricky and commonly A bit tricky and commonly misunderstoodmisunderstood

Most state and federal guidelines Most state and federal guidelines contain a provision stating that a contain a provision stating that a resident can refuse medical treatmentresident can refuse medical treatment– Even though this is couched by “but this Even though this is couched by “but this

could be harmful to your health.”could be harmful to your health.”– This is independent of any knowledge of This is independent of any knowledge of

whether he resident has a legal decision whether he resident has a legal decision maker or notmaker or not

DocumentationDocumentation Durable Power of AttorneyDurable Power of Attorney

– Notarized form the patient fills outNotarized form the patient fills out– Appoint a person to handle your affairs while Appoint a person to handle your affairs while

you are unable to do soyou are unable to do so UnconsciousUnconscious Mentally incapacitatedMentally incapacitated ““Otherwise unable to do so”Otherwise unable to do so”

– General, special, health careGeneral, special, health care– Durable means the POA takes effect if you Durable means the POA takes effect if you

become mentally incapacitated and is ongoingbecome mentally incapacitated and is ongoing Can be revokedCan be revoked

– Physician’s assessment usually required for the Physician’s assessment usually required for the DPOA to go into effectDPOA to go into effect

Documentation Documentation

RememberRemember– The durable power of attorney can be The durable power of attorney can be

signed by the patient only when they signed by the patient only when they retain the capacityretain the capacity To understand what they are entering intoTo understand what they are entering into

– As mentioned beforeAs mentioned before Have the capacity to determine who would Have the capacity to determine who would

act in their interestact in their interest– Allows less than responsible persons to manage Allows less than responsible persons to manage

the patient’s life and moneythe patient’s life and money Otherwise they need to pursue guardianshipOtherwise they need to pursue guardianship

Documentation Documentation

GuardianshipGuardianship– Legal relationshipLegal relationship

Established by the courtEstablished by the court– Requires a hearing with attorneys representing Requires a hearing with attorneys representing

both sidesboth sides Between guardian and wardBetween guardian and ward

– Guardian has a legal right and duty to care for the Guardian has a legal right and duty to care for the wardward

Making personal decisionsMaking personal decisions Managing financesManaging finances Or bothOr both Conservatorship is a term used to refer to the Conservatorship is a term used to refer to the

guardian of an incapacitated adultguardian of an incapacitated adult

Approach to the problem Approach to the problem Make sure the patient’s legal status has been Make sure the patient’s legal status has been

evaluated before admissionevaluated before admission– Make sure if someone says they have a DPOA or Make sure if someone says they have a DPOA or

guardianship they actually do-make sure you see the guardianship they actually do-make sure you see the document.document. Many families misunderstand this questionMany families misunderstand this question

– With certain diagnoses it would be unusual to retain full With certain diagnoses it would be unusual to retain full capacitycapacity SchizophreniaSchizophrenia DementiaDementia

However, residents may retain capacity in some However, residents may retain capacity in some realms and not othersrealms and not others– May still be able to manage their finances well, but have May still be able to manage their finances well, but have

little insight into their healthlittle insight into their health

Evaluation of CapacityEvaluation of Capacity

“…“…to do what?”to do what?”– Make what kind of decisions, carry on what Make what kind of decisions, carry on what

activities independentlyactivities independently Manage their own moneyManage their own money Undergo a colonoscopyUndergo a colonoscopy

– Knowing the concern makes the approach Knowing the concern makes the approach easiereasier

– Not all decisions the sameNot all decisions the same It takes less capacity if there is less risk with either It takes less capacity if there is less risk with either

agreeing or disagreeing to treatmentagreeing or disagreeing to treatment– Taking a multivitamin Taking a multivitamin

Deciding about a band-aid on a scratch takes less Deciding about a band-aid on a scratch takes less capacity than heart surgerycapacity than heart surgery

Evaluation Evaluation Can be done by any physician Can be done by any physician

– In many cases the determination is so obvious no further In many cases the determination is so obvious no further specialization is neededspecialization is needed

If the determination is harder to makeIf the determination is harder to make– Mild dementia, executive deficits Mild dementia, executive deficits – Disputes among caregivers, legal issues existDisputes among caregivers, legal issues exist

PsychiatristPsychiatrist– Forensic psychiatry is the specialty that deals with this Forensic psychiatry is the specialty that deals with this

issueissue Neuropsychologist Neuropsychologist

– Tests all functions of the brain in questionTests all functions of the brain in question Memory, language, V/S skills, executive functionMemory, language, V/S skills, executive function

– Most through evaluation of capacityMost through evaluation of capacity

Any other options?Any other options?

Mental health commitmentMental health commitment– Filed with the local Board of Mental Filed with the local Board of Mental

HealthHealth– Must have two facets Must have two facets

Mentally illMentally ill– As defined by the Nebraska State StatutesAs defined by the Nebraska State Statutes– Commonly refer to the current version of the DSMCommonly refer to the current version of the DSM

DangerousDangerous– ActivelyActively

Suicide, homicideSuicide, homicide– Passively Passively

Neglect, lack of insightNeglect, lack of insight

Any other options?Any other options?

Emergency guardianshipEmergency guardianship– Usually for someone in imminent Usually for someone in imminent

distressdistress No DPOANo DPOA Living in squalor, significant life threatening Living in squalor, significant life threatening

health problemshealth problems

– Does not require a hearingDoes not require a hearing Usually sets a future hearing dateUsually sets a future hearing date Temporary guardian appointedTemporary guardian appointed

– Some finesse required in finding the Some finesse required in finding the right person to handle theseright person to handle these

Still not sure what to doStill not sure what to do

ContactContact– The Nebraska Long-Term Care The Nebraska Long-Term Care

Ombudsmen ProgramOmbudsmen Program (402) 471-2307 or (800) 942-7830(402) 471-2307 or (800) 942-7830

– Adult Protective ServicesAdult Protective Services Contact local DHHS office Contact local DHHS office

– County AttorneyCounty Attorney County Board of Mental HealthCounty Board of Mental Health

– Attorney General of the State of NebraskaAttorney General of the State of Nebraska (402) 471-2682(402) 471-2682

Case OneCase One

The resident had a guardianThe resident had a guardian– Who was in agreement with the treatment planWho was in agreement with the treatment plan

The nursing home was incorrect in The nursing home was incorrect in withholding medical treatmentwithholding medical treatment– In reality the prospect of giving a potentially In reality the prospect of giving a potentially

combative resident IM meds was concerning to combative resident IM meds was concerning to the nursing homethe nursing home

Could place themselves at legal riskCould place themselves at legal risk– Non-treatment could lead to an increase in Non-treatment could lead to an increase in

morbidity and mortalitymorbidity and mortality

Case TwoCase Two

Two concernsTwo concerns– Son’s motivation and ability to care for Son’s motivation and ability to care for

mother at homemother at home Financial abuse is also a worryFinancial abuse is also a worry

– Patient’s statement that she wanted to Patient’s statement that she wanted to leave against her doctor’s adviceleave against her doctor’s advice Variable upon contextVariable upon context Cannot state why she would go home Cannot state why she would go home

against medical adviceagainst medical advice

Case TwoCase Two A neuropsychological evaluation or psychiatric A neuropsychological evaluation or psychiatric

evaluation is called for hereevaluation is called for here– May give some insight into her level of May give some insight into her level of

understanding whether the son is acting in her understanding whether the son is acting in her interestinterest

May require Adult Protective Services May require Adult Protective Services interventionintervention– If son pushes the idea of taking her homeIf son pushes the idea of taking her home

Guardian likely needed to protect her from Guardian likely needed to protect her from DPOADPOA– Tell son people may question his motives, so getting Tell son people may question his motives, so getting

a guardian will remove such suspicionsa guardian will remove such suspicions ““Isn’t that expensive?”Isn’t that expensive?”

Case ThreeCase Three Can you force someone to take a bath?Can you force someone to take a bath?

– Yes, but do you really want to…Yes, but do you really want to… Understand how often he needs to be bathedUnderstand how often he needs to be bathed

– Certainly there are sound medical reasons he needs to Certainly there are sound medical reasons he needs to be bathed, plus day-to-day pericarebe bathed, plus day-to-day pericare

Try and determine what environmental issues there Try and determine what environmental issues there are, if anyare, if any

– Doesn’t like women to bathe him, e.g.Doesn’t like women to bathe him, e.g.– Like any task, slowly talk them through stepsLike any task, slowly talk them through steps– Let him set the scheduleLet him set the schedule– See if family can be thereSee if family can be there

If this still doesn’t workIf this still doesn’t work– Ensure safetyEnsure safety– Low dose medication can help with bathingLow dose medication can help with bathing

But not with daily wash-upsBut not with daily wash-ups

ReviewReview Case OneCase One

– Essential treatment issueEssential treatment issue– Guardian overrides “patient rights” Guardian overrides “patient rights”

Case TwoCase Two– DPOA not acting in her interestDPOA not acting in her interest– DPOA should be rescinded for a guardianDPOA should be rescinded for a guardian

Case Three Case Three – Case must be made for health of patient and Case must be made for health of patient and

peerspeers– DPOA agreed to bathing DPOA agreed to bathing – Try and find environmental reasons for Try and find environmental reasons for

noncompliance noncompliance