Due to the difficulty in addressing the ethics and science of determining a patient’s ability to participate in important medical decision making, it is important to review basic medical ethics principles. In order for these principles to be more fully understood, this chapter includes a number of clinical vignettes that are used to introduce principles and discuss their implementation in the prehospital environment.

A 45-year-old man calls 9-1-1 after experiencing 15 minutes of substernal chest pain. On your arrival to the patient, he denies any complaints and his chest pain has subsided without intervention. You assess the patient and find he has an elevated blood pressure 200/100 and an ECG reveals NSR without ischemic changes. The patient reports feeling well and refuses further intervention or transport to the hospital. You feel the patient is at high risk for cardiac disease and believe he should be treated and transported. What do you do?

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  Describe the principles of assessing a patient’s capacity as defined by Applebaum and Grisso.

  
  
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  Discuss the prehospital assessment of capacity.

  
  
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  Discuss the basis for the right to refuse care.

  
  
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  Describe key elements of documentation during a patient refusal.

  
  
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  Describe indications for calling for law enforcement assistance.

  
  
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  Discuss state differences in laws regarding providing involuntary ­psychiatric treatment in the field.

  
  
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  Give examples of appropriate and inappropriate refusals.

The medical legal concept of patient consent to medical treatment dates back to 1912 US case law in which Justice Cardoza writes: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”¹ This concept is further refined as informed consent by 1957 US case law with the addition of the duty to disclose information.² This doctrine of informed consent relies on the principle of autonomy in which an individual has the right to self-determination, even if it results in harm. Although the medical, legal, and ethical principles of informed consent, medical decision-making capacity, and refusal of care have their foundation in medical care provided by physicians, they apply as well, and often with greater challenge, to prehospital ­providers: first responders, EMTs, and paramedics.

In order for medical personnel to provide medical care, including assessment, evaluation, and transport of that patient by a prehospital provider, the patient must first consent to have that care provided. Many may assume the principle of informed consent does not apply to emergency medical services (EMS) because the care being provided is assumed to be in the case of an emergency, and therefore this exception to informed consent would apply. This idea of implied or emergent consent is often used by EMS but can only be assumed in a situation in which the care must be given to prevent death or serious injury. This emergency situation is not always the case in the emergency room or prehospital setting because not all circumstances are true emergencies and may not require immediate life-saving intervention. If there is enough time to discuss the treatment options with the patient and obtain informed consent, then the emergency exception does not apply.³ Therefore, for situations in which the provider is caring for a non-life-threatening emergency, the concept of informed consent applies and must be understood. There are three fundamental elements of valid informed consent.^3–5 The patient: (1) must have capacity to make the medical decision, (2) must be given sufficient information to make an informed decision, and (3) make the decision voluntarily without coercion or duress from the provider or other family or friends.

In general, determining a patient’s medical decision-making capacity occurs as an inherent part of a patient’s assessment; the provider, as well as the law,⁶ assumes a patient has capacity unless the patient’s decisions are called into questions. The vast majority of persons are capable of making their own decisions.⁵ The question of a patient’s capacity usually arises when the patient refuses care that the provider feels is indicated. There are generally three categories of patients in regard to capacity. It is easy to determine capacity in the majority of patients, with the general assumption being those who are seeking care have capacity. There are also patients in whom it is easily determined that they lack capacity, for example, those who are profoundly mentally handicapped, comatose, or acutely psychotic. The challenging group is the many patients who fall in between these two categories, those with psychiatric illness, substance abuse, delirium, dementia, head trauma, or other underlying illnesses that may cause change in mental status. There are many underlying medical, psychological, developmental, and toxicologic diagnoses which may impair a patient’s capacity to make a medical decision.

In order for a patient to consent to and accept medical treatment or to refuse that treatment, it is essential that the providers assess if the patient has capacity to make that decision. The terms capacity and competence are often used interchangeably in both medical and legal literature. Generally, competence is a legal determination, enforced by a judge’s ruling and is usually a global decision of a person’s general ability to make decisions.⁴ Persons who are determined to be incompetent lose their right to consent to or refuse treatment and instead have a legal guardian appointed to make those decisions for them. Medical decision- making capacity, however, refers to the ability to make a decision applicable to a specific medical event. Because medical situations vary from benign, low-risk, uncomplicated interventions, to highly complex, high-risk situations, a patient’s level of capacity may vary depending on the individual and the situation. Some individuals may have medical decision-making capacity for low acuity, basic medical decisions, but may not have capacity in more complex situations. Applebaum and Grisso^5,6 describe four essential skills a patient must possess in order to have medical decision-making capacity (Box 24-1). Box 24-1 Applebaum and Grisso’s Determination of Capacity

1. 
   

   Understand relevant information.

   
   
2. 
   

   Appreciate the situation and consequences.

   
   
3. 
   

   Reason about treatment options.

   
   
4. 
   

   Communicate a choice.

In order for a provider to assess a patient as having capacity, the patient must be able to understand the relevant information given to them. If they do not understand what they have been told, they do not have the capacity to make a decision based on that information. The patient must have the attention span and memory to remember the information given to them, and the ability to comprehend it. The EMT might ask the patient to restate the information provided regarding their illness to ensure they have the memory to retain it, but more importantly to ask them to restate it in their own words to determine that the patient actually understood the information. The patient must appreciate the significance and implication of the illness, and the consequences of a treatment decision, including the risks and benefits of treatment or not being treated. The patient must have insight into actually having a medical illness. They might be asked to describe their illness, the proposed treatment, and the likely outcome of being treated or not. The patient must be able to reason through the process of balancing the treatment options based on the relevant information. This rational manipulation of information involves the ability of weighing each choice and making a logically consistent conclusion based on those weighted choices. The patient can be asked to compare treatment options and their consequences and to give a reason to their decision. Finally the patient must be able to communicate a choice of the preferred treatment option, and maintain that choice long enough for that plan of care to be implemented.

There are vast challenges to determining a patient’s capacity in the field: initial patient assessment can occur in very austere environments; unlike ongoing medical care by physicians, emergency medical personnel do not have a preexisting relationship with the patient to rely on, nor do they have much time to make this assessment. Other challenges include language barriers without the help of translators, cultural differences, and often the lack of supporting players such as family members who may assist the patient in their decision making. Explicit extensive assessment of patient’s capacity is often not feasible in the field. Although there are a number of quantitative tools, which can be used in hospital, such as the mini-mental status examination or MacArthur Competence Assessment Tool for Treatment, these tools are not applicable to the field provider given the length of time and additional skill needed to implement them. They are beyond the scope of practice of the field provider.

Despite all these limitations the field provider will frequently have to determine if a patient has capacity, usually in the setting of a patient who refuses medical aid and/or transport. One study showed that among ethical dilemmas encountered, EMTs stated that those regarding patient refusal of care occurred most frequently.⁷ Another study showed that when ethical conflict did arise in the prehospital setting, 17% of the time it involved patient competence.⁸ In these circumstances, it is important that the field provider is informed of the above criteria and of their services’, state’s, or regional protocol for determining capacity, and should use these as guidance to determine if a patient has capacity to refuse that treatment. Unfortunately, there is no single, simple measure of a patient’s decision-making capacity.³ A basic approach for the field provider should include determining if the patient understands and appreciates the specific situation at hand, including risks and benefits, that the patient has sufficient information to reason through the potential treatment choices, and that the patient is able to make a choice, and that choice is made voluntarily. The field provider should also be able to determine if there is a basic underlying condition interfering with the patient’s capacity including, for example, change in mental status from hypoglycemia, intoxication, seizure, or psychiatric illness. The provider should use other resources that may be present or accessible such as family, medic alert tags, or available medical information to aid in their assessment of the patients’ capacity. The field provider may also rely on other members of the service such as command or supervisory staff or online medical control to help assess the situation when necessary.

Consider, for example, a patient for whom a third-party called 9-1-1, after the patient was noted to fall while walking on the sidewalk. On arrival to the scene, the EMS crew finds a well-dressed, middle-aged man sitting comfortably on the sidewalk leaning against a wall, with an obvious contusion and laceration to his forehead. The patient is otherwise in no distress. On further assessment the patient is alert, oriented to self only, not to the situation, or to purpose of the interaction. He has an obvious odor of alcohol. He is unable to give any history surrounding the events of the evening, does not know how he arrived at this place or situation. He tells the crew that he is fine and will find his way to his car. He declines assistance by EMS. He is perseverative, repeating over and over that he is just fine. This situation is a common one encountered by prehospital providers. The patient is clearly not oriented, and he does not have the ability to understand the situation given that he is unable to relay the circumstances surrounding it. He clearly does not have medical decision-making capacity to refuse the medical care and transport. It would be appropriate for the crew to transport this patient to the hospital.

There are few exceptions to providing care without a patient’s informed consent. If a patient is assessed and determined to lack the capacity to make a decision, the prehospital provider should seek guidance from a substitute decision maker such as the patient’s next of kin to obtain informed consent for care. As already discussed, in an emergency situation an exception to informed consent exists and the prehospital provider can provide appropriate emergent care under the presumption that a reasonable person would have consented to such treatment to prevent death or serious harm, or the presumption that if this patient were able to consent he would do so to preserve life. There are other circumstances in which a patient is determined to have capacity to consent to treatment, but abdicates the decision to someone else, usually a family member, to make decisions on their behalf. This waiver of consent allows another person to make the decision for a patient and should be respected by the field provider.

A competent adult has the legal right to refuse care as described by 1957 case law²; however, assessment of their capacity must be pursued prior to allowing refusal of care. The most salient legal liabilities revolving around refusal of care are negligence and abandonment.⁹ These comprise the majority of all lawsuits involving EMS.¹⁰ Negligence is multifaceted and requires: (1) that an act or an omission was committed, (2) there was a legal duty, (3) the act or omission resulted in damages, and (4) there was a breach in the professional standard of care.¹¹ Abandonment refers to the intentional stopping of medical care without legal excuse, justification, or the patient’s consent, and includes transfer of care to someone of lesser training when higher level of training is needed to provide ­adequate care.¹² Most authorities conclude that abandonment is based on the principles of negligence, and identify these patients who may lack capacity to decline medical treatment as a specific area of concern. In contrast, treating a competent patient without their consent could be interpreted as assault and battery. Concerns about medicolegal implications and patient outcomes have prompted most EMS systems to implement prehospital protocols and policies regarding refusal of care and transport. One survey showed that 91% of responding agencies utilized formal refusal-of-transport policies, with 81% requiring determination of capacity first.¹³