A 32 year old woman was admitted to the Trauma Intensive Care Unit following a motor vehicle accident; she had multiple injuries and fractures, with several complications which continued to develop over the first couple of weeks. The patient rapidly developed Adult Respiratory Distress Syndrome, was on a ventilator, and was continuously sedated. Shortly after the patient's admission, her parents were contacted and remained vigilant at her bedside. The parents reported that the patient was one month away from having her divorce finalized. The patient's husband was reportedly physically and emotionally abusive to her throughout their five years of marriage. The parents had not notified this man of the patient's hospitalization, and reported that visit by him would be distressing to the patient if she were aware of it. The patient's soon to be ex-husband is her legal next of kin.
Should the husband be responsible for treatment decisions which the patient cannot make?
What are the legal and ethical parameters?
To understand these issues, we deemed to understand concepts of informed consent, implied consent and surrogate decision making.
Informed consent is the process by which a fully informed patient can participate in choices about her health care. It originates from the legal and ethical right the patient has to direct what happens to her body and from the ethical duty of the physician to involve the patient in her health care.
The most important goal of informed consent is that the patient have an opportunity to be an informed participant in his health care decisions. It is generally accepted that complete informed consent includes a discussion of the following elements:
Basic consent entails letting the patient know what you would like to do and asking them if that will be all right. Basic consent is appropriate, for example, when drawing blood. Decisions that merit this sort of basic informed consent process require a low-level of patient involvement because there is a high-level of community consensus.
How do you know when you have said enough about a certain decision? Most of the literature and law in this area suggest one of three approaches:
1)reasonable physician standard: what would a typical physician say about this intervention?
2)reasonable patient standard: what would the average patient need to know in order to be an informed participant in the decision?
3)subjective standard: what would this patient need to know and understand in order to make an informed decision? i.e
it requires tailoring information to each patient.
In most cases, it is clear whether or not patients are competent to make their own decisions. Occasionally, it is not so clear. Patients are under an unusual amount of stress during illness and can experience anxiety, fear, and depression. The stress associated with illness should not necessarily preclude one from participating in one's own care. However, precautions should be taken to ensure the patient does have the capacity to make good decisions. There are several different standards of decision making capacity. Generally you should assess the patient's ability to:
Patients can move in and out of a coherent state as their medications or underlying disease processes ebb and flow. You should do what you can to catch a patient in a lucid state - even lightening up on the medications if necessary - in order to include him in the decision making process.
If the patient is determined to be incapacitated/incompetent to make health care decisions, a surrogate decision maker must speak for her. There is a specific hierarchy of appropriate decision makers defined by state law . If no appropriate surrogate decision maker is available, the physicians are expected to act in the best interest of the patient until a surrogate is found or appointed.
What is presumed/implied consent?
The patient's consent should only be "presumed", rather than obtained, in emergency situations when the patient is unconscious or incompetent and no surrogate decision maker is available. In general, the patient's presence in the hospital ward, ICU or clinic does not represent implied consent to all treatment and procedures. The patient's wishes and values may be quite different than the values of the physician's. While the principle of respect for person obligates you to do your best to include the patient in the health care decisions that affect his life and body, the principle of beneficence may require you to act on the patient's behalf when his life is at stake.
There is implied consent by law for provision of "emergency" medical treatment. Hospital policy defines what the hospital will consider an "emergency" and sets an institutional documentation standard:
As, consent for care is implied by law when immediate treatment is required to preserve life or to prevent serious impairment of bodily functions and it is impossible to obtain the consent of the patient, his/her legal guardian, or next-of-kin. In that situation, where a medical emergency exists the physician should consult, whenever possible, with the patient's attending physician or with another physician faculty member about the existence of an emergency.
Therefore,when implied consent is relied on by the health care providers, it becomes imperative to document this in the patient's medical record, together with statements by each physician that the emergency treatment was necessary for the reasons specified. These notations should clearly identify the nature of the threat to life or health, its immediacy, and its magnitude. It should be in accordance with legal and institutional standards.
If the patient already filed for divorce, it is likely that there is a temporary court order in effect and this order may affirmatively remove the patient's estranged husband from making medical decisions for her. Also, it is common in divorce paperwork to have mutual restraining orders which prevent both spouses from contacting each other. The patient's parents should be asked to provide the name of her divorce attorney to obtain copies of the relevant legal papers - which can then be placed in the legal section of the patient's medical record. With the husband thus removed as her surrogate decision-maker, it appears the patient's parents would become the highest level class of surrogate decision-maker and could provide informed consent for her care if the patient is unable to do so.
Even if the patient's husband remains as her legal surrogate decision-maker, his decisions on the patient's behalf are constrained by legally imposed standards. First, a surrogate is legally required to provide "substituted judgment" on behalf of the patient. This means that the surrogate must act in accordance with the patient's wishes. If substituted judgment isn't possible (i.e., unknown what the patient would want under the current medical circumstances), then the law requires the surrogate to act in the patient's "best interests." Since the medical team has significant input about what would medically be in the patient's interest, a decision by a surrogate which doesn't adhere to this standard should not be automatically followed and may need to be reviewed by the institutional ethics committee, risk management, or legal counsel.
The patient's husband may be willing to waive his surrogate decision-maker role to his estranged wife. If this occurs, then he would agree to remove himself from the list of potential surrogate decision-makers and the next highest level surrogate decision-maker(s) would be contacted as necessary to provide informed consent for the patient.
A final option may be for the patient's parents to file to become the patient's legal guardians for health care decision-making.
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If the patient already filed for divorce, it is likely that there is a temporary court order in effect and this order may affirmatively remove the patient's estranged husband from making medical decisions for her. Also, it is common in divorce paperwork to have mutual restraining orders which prevent both spouses from contacting each other. The patient's parents should be asked to provide the name of her divorce attorney to obtain copies of the relevant legal papers - which can then be placed in the legal section of the patient's medical record. With the husband thus removed as her surrogate decision-maker, it appears the patient's parents would become the highest level class of surrogate decision-maker and could provide informed consent for her care if the patient is unable to do so.
Even if the patient's husband remains as her legal surrogate decision-maker, his decisions on the patient's behalf are constrained by legally imposed standards. First, a surrogate is legally required to provide "substituted judgment" on behalf of the patient. This means that the surrogate must act in accordance with the patient's wishes. If substituted judgment isn't possible (i.e., unknown what the patient would want under the current medical circumstances), then the law requires the surrogate to act in the patient's "best interests." Since the medical team has significant input about what would medically be in the patient's interest, a decision by a surrogate which doesn't adhere to this standard should not be automatically followed and may need to be reviewed by the institutional ethics committee, risk management, or legal counsel.
The patient's husband may be willing to waive his surrogate decision-maker role to his estranged wife. If this occurs, then he would agree to remove himself from the list of potential surrogate decision-makers and the next highest level surrogate decision-maker(s) would be contacted as necessary to provide informed consent for the patient.
A final option may be for the patient's parents to file to become the patient's legal guardians for health care decision-making.
(Source: ETHICS IN MEDICINE University of Washington)
Should the husband be responsible for treatment decisions which the patient cannot make?
What are the legal and ethical parameters?
To understand these issues, we deemed to understand concepts of informed consent, implied consent and surrogate decision making.
Informed consent is the process by which a fully informed patient can participate in choices about her health care. It originates from the legal and ethical right the patient has to direct what happens to her body and from the ethical duty of the physician to involve the patient in her health care.
What is informed consent?
The most important goal of informed consent is that the patient have an opportunity to be an informed participant in his health care decisions. It is generally accepted that complete informed consent includes a discussion of the following elements:
What are the elements of full informed consent?
- the nature of the decision/procedure
- reasonable alternatives to the proposed intervention
- the relevant risks, benefits, and uncertainties related to each alternative
- assessment of patient understanding
- the acceptance of the intervention by the patient
Basic consent entails letting the patient know what you would like to do and asking them if that will be all right. Basic consent is appropriate, for example, when drawing blood. Decisions that merit this sort of basic informed consent process require a low-level of patient involvement because there is a high-level of community consensus.
How do you know when you have said enough about a certain decision? Most of the literature and law in this area suggest one of three approaches:
1)reasonable physician standard: what would a typical physician say about this intervention?
2)reasonable patient standard: what would the average patient need to know in order to be an informed participant in the decision?
3)subjective standard: what would this patient need to know and understand in order to make an informed decision? i.e
it requires tailoring information to each patient.
In most cases, it is clear whether or not patients are competent to make their own decisions. Occasionally, it is not so clear. Patients are under an unusual amount of stress during illness and can experience anxiety, fear, and depression. The stress associated with illness should not necessarily preclude one from participating in one's own care. However, precautions should be taken to ensure the patient does have the capacity to make good decisions. There are several different standards of decision making capacity. Generally you should assess the patient's ability to:
When is it appropriate to question a patient's ability to participate in decision making?
- understand his or her situation,
- understand the risks associated with the decision at hand, and
- communicate a decision based on that understanding.
Patients can move in and out of a coherent state as their medications or underlying disease processes ebb and flow. You should do what you can to catch a patient in a lucid state - even lightening up on the medications if necessary - in order to include him in the decision making process.
What about the patient whose decision making capacity varies from day to day?
If the patient is determined to be incapacitated/incompetent to make health care decisions, a surrogate decision maker must speak for her. There is a specific hierarchy of appropriate decision makers defined by state law . If no appropriate surrogate decision maker is available, the physicians are expected to act in the best interest of the patient until a surrogate is found or appointed.
What should occur if the patient cannot give informed consent?
What is presumed/implied consent?
The patient's consent should only be "presumed", rather than obtained, in emergency situations when the patient is unconscious or incompetent and no surrogate decision maker is available. In general, the patient's presence in the hospital ward, ICU or clinic does not represent implied consent to all treatment and procedures. The patient's wishes and values may be quite different than the values of the physician's. While the principle of respect for person obligates you to do your best to include the patient in the health care decisions that affect his life and body, the principle of beneficence may require you to act on the patient's behalf when his life is at stake.
There is implied consent by law for provision of "emergency" medical treatment. Hospital policy defines what the hospital will consider an "emergency" and sets an institutional documentation standard:
As, consent for care is implied by law when immediate treatment is required to preserve life or to prevent serious impairment of bodily functions and it is impossible to obtain the consent of the patient, his/her legal guardian, or next-of-kin. In that situation, where a medical emergency exists the physician should consult, whenever possible, with the patient's attending physician or with another physician faculty member about the existence of an emergency.
Therefore,when implied consent is relied on by the health care providers, it becomes imperative to document this in the patient's medical record, together with statements by each physician that the emergency treatment was necessary for the reasons specified. These notations should clearly identify the nature of the threat to life or health, its immediacy, and its magnitude. It should be in accordance with legal and institutional standards.
ANSWER
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(Source: ETHICS IN MEDICINE University of Washington)
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