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Legal News
Psychiatrists, Lawyers Need to Bridge Communication Gap
Psychiatric News
Volume 42 Number 15 page 16-17
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Nancy Byatt, D.O., Ralph Seymour, M.D., and Debra Pinals, M.D., discuss the fine points of differentiating between legal competence and decision-making capacity at the APA annual meeting in San Diego. 

Credit: David Hathcox

Doctors determine a person's mental capacity for decision making, but judges determine competency—and that's only one point on the fault line between medicine and law, said several speakers at APA's 2007 annual meeting in San Diego in May.

"The medical and legal communities speak different languages," said Debra Pinals, M.D., an associate professor of psychiatry and director of forensic psychiatry fellowship and training at the University of Massachusetts (UMass) Medical School in Worcester. "The legal definitions of mental illness don't usually use DSM criteria."

Many state commitment statutes were written in the 1970s and 1980s and do not always reflect current ideas of mental illness and treatment, especially when there are numerous comorbidities, she said.

Problems arise when medically ill patients lack decision-making capacity but don't meet the legal definitions of mental illness to permit civil commitment or use of restraint, said Nancy Byatt, D.O., chief resident in consultation-liaison psychiatry and in psychopharmacology at the University of Massachusetts.

Byatt recalled the case that inspired the session at the APA meeting. A woman diagnosed with AIDS, HIV dementia, type 2 diabetes, and who had a long history of bipolar disorder and psychiatric hospitalization, presented voluntarily at the hospital. She was disoriented and agitated, with symptoms of delirium, possibly related to an undetermined infection. She claimed that treatment was futile and wanted to leave, although medical and psychiatric staff believed she would be better off in the hospital. Byatt called the university's lawyers, and they called the campus police, who refused to hold the woman without formal commitment documents.

The impasse was resolved when the woman finally uttered the magic words: she threatened to "run in front of a train" if she were released. The suicidal statement made commitment possible, and the woman remained in the hospital. (Her delirium resolved eventually, but not the dementia, and she was assigned a guardian before being released several weeks later.)

"This is a typical problem facing hospital personnel," said Ralph Seymour, M.D., an assistant professor of psychiatry at UMass. "It involves the interplay between a medical/surgical team, psychiatry, the house counsel, and security," said Seymour. "Everybody has science, principle, and standards on their side, but they rarely mesh well."

Too often, the psychiatry team is called in only after the patient refuses treatment consent or is delirious, said Seymour. The psychiatrist is then supposed to evaluate the patient's mental capacity and even help persuade the patient to accept treatment. The first job is to identify treatable psychiatric obstacles to care or whether poor communication is hampering everyone's efforts. Beyond that, the psychiatrist should try to discern whether the patient's beliefs about treatment reflect long-standing, well-founded views or have been triggered by the present crisis.

Everyone on the treatment team brings a desire to intervene and raises a series of practical questions with philosophical overtones, he said.

"Is there a compelling value to guide us, like treatment or palliation? If we hold the patient can we restore decisional capacity? Does the patient have a proxy? What must we do? Is mandatory confinement indicated, as for TB? What does or would the patient want us to do?" he said." If we can't force the patient to do something, then at least we should try to persuade the patient."

Competency represents the minimal mental or cognitive ability to perform an act or to make a decision, said Pinals. Capacity requires a sustained ability to make choices by a person who understands the information surrounding the choice, an ability to reason through the decision without the influence of a mental illness, and an ability to appreciate the nature of his or her situation and the results of treatment.

Pinals noted that nonpsychiatric medical hospitalization is generally voluntary, there is a presumption of competence, and the patient's legal status is assumed. Involuntary medical treatment is based on competency, not dangerousness (although there are exceptions). For a psychiatric hospitalization, the patient's legal status has to be documented, requests to leave must be evaluated, and involuntary detention is usually based on dangerousness to self or others, although the criteria may vary across jurisdictions.

"Medical patients who lack decisional capacity may not be committable, so be careful about equating the two," she said. "Bad judgment by a patient does not equate with a lack of decisional capacity."

Many medical issues fall into gray areas, while laws and regulations try to narrow the parameters for involuntary confinement and restraint, she said." Doctors have to translate that 'gray' clinical language into legal language, and the law may then force choices."

"If a patient has decisional capacity, he can leave against medical advice," said Seymour. "If he lacks capacity, the least-restrictive method of restraint may be applied, and only emergent medical treatment allowed while guardianship is pending."

In a different session at the APA meeting, James Levenson, M.D., a professor of psychiatry, medicine, and surgery and chair of the Division of Consultation-Liaison Psychiatry at the Virginia Commonwealth University School of Medicine, offered suggestions for dealing with these conflicting cases.

Facing a patient who wants to leave the hospital against medical advice, Levenson recommends beginning by asking why the patient wants to leave, evaluating whether he or she is a danger to self or others, then determining if the patient has decisional capacity.

"Clinically and legally, a full, calm discussion with the patient is needed, explaining why the doctor wants the patient to stay and what are the benefits of treatment and the risks of leaving prematurely," said Levenson. The conversation should be fully documented in the patient's records.

Additional information appears in the Psychiatric Services article "Involuntary Hospitalization of Medical Patients Who Lack Decisional Capacity: An Unresolved Issue" posted at<http://psy.psychiatryonline.org/cgi/content/full/47/5/443>.

Anchor for JumpAnchor for Jump

Nancy Byatt, D.O., Ralph Seymour, M.D., and Debra Pinals, M.D., discuss the fine points of differentiating between legal competence and decision-making capacity at the APA annual meeting in San Diego. 

Credit: David Hathcox

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