TEMSA Evolution 2018 June 20 CONSENT AND CAPACITY. When does no mean no? Kristofer Schleicher General Counsel MedStar Mobile Healthcare

Transcription

1 TEMSA Evolution 2018 June 20 CONSENT AND CAPACITY When does no mean no? Kristofer Schleicher General Counsel MedStar Mobile Healthcare

2 AGREE OR DISAGREE?? If the patient is capable of communicating their wishes regarding medical treatment, in Texas, a paramedic can make an assessment of capacity and override the expressed wish if it is in the patient s best interest.

3 YOU MUST HAVE CONSENT [T]he general rule in Texas is that a physician who provides treatment without consent commits a battery. Miller ex rel. Miller v. HCA, Inc., 118 S.W.3d 758, 767 (Tex. 2003); Gravis v. Physicians & Surgeons Hosp. of Alice, 427 S.W.2d 310, 311 (Tex. 1968).

4 KEY CONCEPTS There is a fundamental difference between the principles of informed consent, implied consent, and a refusal of treatment. There is a fundamental difference between lack of capacity and inability to communicate consent or refusal.

5 KEY CONCEPTS Informed Consent: if a patient relies on your professional judgment or advice in making a decision to accept or decline treatment, you must fully disclose the risks of both undergoing and declining treatment. You do not have a legal duty to persuade a person to undergo treatment, only to give them enough relevant information for them to make their own decision. [Document it!]

6 KEY CONCEPTS Implied Consent: When the law allows a medical provider to presume a patient would consent to treatment if they were able to express an opinion. Implied Consent does not apply when the patient has refused treatment by words or actions.

7 KEY CONCEPTS Refusal of Treatment: Texans have a fundamental right to refuse medical treatment. They don t have to answer your questions, repeat information back to you, or even talk to you.

8 KEY CONCEPTS Lack of Capacity: The inability to appreciate the potential risks and rewards of alternative courses of action. Making a decision against medical advice does not alone demonstrate a lack of capacity. Texans have the right to make very bad decisions regarding their own health.

9 KEY CONCEPTS Inability to Communicate: The inability to express one s desires concerning medical treatment. Communication can be verbal or by action.

10 WHAT IF THE PATIENT CAN T CONSENT? [C]onsent will be implied where the patient is unconscious or otherwise unable to give express consent and an immediate operation is necessary to preserve life or health. Miller ex rel. Miller v. HCA, Inc., 118 S.W.3d 758, 767 (Tex. 2003).

11 THE SPECIAL RULE FOR EMERGENCY TREATMENT Sec CONSENT FOR EMERGENCY CARE Consent for emergency care of an individual is not required if: (1) the individual is: (A) unable to communicate because of an injury, accident, or illness or is unconscious; and (B) suffering from what reasonably appears to be a lifethreatening injury or illness;

12 THE SPECIAL RULE FOR EMERGENCY TREATMENT Consent for emergency care of an individual is not required if: (2) a court of record orders the treatment of an individual who is in an imminent emergency to prevent the individual's serious bodily injury or loss of life;

13 THE SPECIAL RULE FOR EMERGENCY TREATMENT Consent for emergency care of an individual is not required if: (3) the individual is a minor who is suffering from what reasonably appears to be a life-threatening injury or illness and whose parents, managing or possessory conservator, or guardian is not present.

14 THE SPECIAL RULE FOR EMERGENCY TREATMENT Thus, you can only assume [imply] consent when a person is both: (1) unable to communicate, and (2) suffering from what appears to be a life threatening injury or illness. Further, if the person is a child, you can only assume consent if their parent or guardian is not present.

15 THE SPECIAL RULE FOR EMERGENCY TREATMENT Lack of capacity is not grounds for implying consent if a person communicates a refusal of treatment. You can only override a communicated verbal refusal or act of refusal when a court of record orders the treatment of an individual who is in an imminent emergency to prevent the individual's serious bodily injury or loss of life.

16 REPEAT AFTER ME Be mindful of the difference between their being unable to communicate and being unwilling to communicate. Refusal to engage in conversation is not an inability to communicate.

17 WHAT IF YOU CAN T GET A COURT ORDER? Is the patient engaging in conduct that poses a danger to self or exhibits signs of mental illness? The policeman is your friend, and can take the patient into custody. BUT: you can only transport not treat. At the hospital, a physician can override a refusal of treatment if the patient lacks capacity.

18 Can you subdue the patient at the request of law enforcement? Consult your local lawyer before you drug and drag Have clear understandings with law enforcement in advance Make sure your insurance will cover the claim Medics are not commissioned law enforcement officers

19 BUT WHAT ELSE CAN YOU DO WITH A PATIENT THAT LACKS CAPACITY? Subject the would-be patient to persuasion by supervisors up to the Medical Director Employ family and friends on the scene to help persuade Threaten the patient with a court order Take the liability risk of an involuntary transport Wait around until they can no longer communicate

20 SUMMARY GUIDELINES 1. Your belief that a patient s refusal of treatment is likely to cause them harm does not equate to incapacity. Patients have the absolute right to make bad decisions regarding their own health.

21 SUMMARY GUIDELINES 2. There is a wide divergence between being unable to communicate and being unwilling to cooperate. You cannot override a patient s refusal of treatment just because a patient does not repeat back certain statements or warnings. A patient who refuses to do what you ask in that regard cannot be treated against his will because you think their refusal indicates incapacity.

22 SUMMARY GUIDELINES 3. Restraining or chemically incapacitating such a patient so you can treat and transport them can lead to both criminal and civil liability for assault and battery and false imprisonment and you will likely be outside the protection of sovereign immunity. There must be an inability to communicate or legal incompetency not just obstinacy.

23 SUMMARY GUIDELINES 4. In all cases where a patient refuses treatment, you must make a diligent attempt to explain the risks of not undergoing treatment and you must document this attempt and the patient s response.

24 SUMMARY GUIDELINES 5. However, you do not have the right to subdue and treat a patient because they refuse to listen to your disclosure of risks. A bad decision does not equal an inability to communicate.

25 SUMMARY GUIDELINES 6. Impairment does not equal an inability to communicate.

26 SUMMARY GUIDELINES 7. You cannot get a court order to override a patient s refusal on the scene unless a delay in treatment poses a significant risk of loss of life or serious bodily injury.