Module Components

• Overview

Topics

• Ethical Health Care Issues
• Basic Concepts of Law in the Healthcare Workplace
• The Legal Environment: Healthcare Law
• Legal & Clinical Incapacity and Informed Consent
• Confidentiality and HIPPA
• Advance Directives
• Labor Relations
• Human Resources: Related Legislation

Nurs 692 Administration of Nursing and Health Care Services

Module 10: The Ethical & Legal Environment and Labor Relations

Legal & Clinical Incapacity and Informed Consent

Legal Incapacity

Legal capacity and all the rights that go with it remain in effect until death, unless a court of law has determined a person is legally incapacitated. To establish legal incapacity, a court must determine that a person can no longer manage personal affairs in his or her own best interest and court intervention is necessary to protect the person. Doctors cannot determine legal incapacity. The legal proceeding is usually called a guardianship or conservatorship proceeding. Legal requirements for declaring incapacity vary by state. However, the following are typically required:

• A disabling condition (for example, intellectual disability, a mental disorder, dementia, a medical disorder that affects thinking or awareness, or chronic use of certain drugs)
• A lack of mental (cognitive) ability to receive and evaluate information or to make or communicate decisions
• An inability to meet essential requirements of physical health, safety, or self-care without protective intervention by someone
• A finding that guardianship or conservatorship is the only feasible way to protect a person

Health care practitioners, even if they think the person is incapable of making a decision, cannot override the person’s expressed wishes unless a court declares the person legally incapacitated. However, a doctor can seek a court's ruling regarding a person's legal incapacity and a doctor may be asked to testify or provide documentation to the court.

Today, state laws favor the term “incapacity” rather than “incompetency” and define the term as task-specific—that is, every task requires different capabilities to accomplish. For example, a person may be declared legally incapacitated regarding financial affairs, yet still retain legal capacity to make medical decisions or decisions about where to live. A finding of legal incapacity by a court of law takes away all or part of a person’s right to make decisions. Legal incapacity normally results in the appointment of a guardian or conservator to make either some or all decisions for the person.

Clinical Incapacity
Clinical incapacity to make health care decisions is the medical judgment of a qualified doctor or other health care practitioner who determines a person is unable to do the following:

• Understand his or her medical condition or the significant benefits and risks of proposed treatment and its alternatives
• Make or communicate appropriate medical decisions

Like legal capacity, clinical capacity is specific to a particular health care decision and is limited to that decision. A person may have the clinical capacity to make a basic health care decision (for example, receiving IV fluids) but may not be able to decide whether to participate in a clinical trial. Also, clinical incapacity is not necessarily permanent. People who are intoxicated, delirious, comatose, severely depressed, agitated, or otherwise impaired are likely to lack the capacity to make health care decisions but may later regain that capacity. A person’s ability to carry out a decision is also important for doctors to assess. For example, a person with a broken leg may be able to make a decision (for example, to leave the hospital and manage at home) but be unable to carry them out. Providing the necessary support to carry out a decision becomes an important goal of care.

People with dementia may require an evaluation of their level of cognition, memory, and judgment before their doctors can proceed with medical care. People with mild dementia may think clearly enough to understand discussions with their doctors and make some medical decisions. A doctor cannot go against a person’s wishes unless a court declares the person legally incapacitated or the person's wishes are medically or ethically inappropriate. If doctors find that a person lacks clinical capacity, they turn to someone with the legal authority to act as substitute decision maker. In an emergency, people are presumed to consent to any necessary emergency treatment. This process of making emergency health care decisions for people who cannot make decisions for themselves is rarely litigated in court. However, if the person or other appropriate party objects to a particular medical decision or to the determination of clinical incapacity, the courts may become involved.

Informed Consent
Before performing any invasive test or providing medical treatment, doctors must obtain permission from a competent patient in a manner that is informed and voluntary. The process is known as informed consent. People have the right to information about risks, benefits, and alternative treatments when making decisions about medical care and the freedom to choose. If the patient is not capable of understanding these elements or making a decision, the doctor turns to the person named in a health care power of attorney. If none exists, the doctor may turn to another authorized surrogate decision maker. If urgent or emergency care is needed and an authorized decision maker is not immediately available, the doctrine of presumed consent applies: People are presumed to consent to any necessary emergency treatment.

Self-determination means that adults of sound mind have the right to decide what shall be done to their body. It is the foundation of the legal and ethical doctrine of informed consent. The process of informed consent should involve discussion between the individual and the doctor. Patients should be encouraged to ask questions about their condition and treatment options, and doctors should share facts and insights along with support and advice. Doctors should present the information in a way that is understandable to the patient and communicates the risks and benefits clearly. The law requires that doctors take reasonable steps to communicate adequately with patients who do not speak English or who have other communication barriers. Informed consent is substantially achieved when patients understand:

• their current medical status, including its likely course if no treatment is pursued
• potentially helpful treatments, including a description and explanation of potential risks and benefits
• the health care practitioner’s professional opinion as to the best alternative
• uncertainties associated with each of these elements

Refusing Care
Along with the right of informed consent comes the right of informed refusal. People who have legal and clinical capacity may refuse any medical care. They may refuse care even if it is something almost everyone else would accept or something that is clearly life-saving. For example, a person having a heart attack can decide to leave the hospital even if that may lead to death. Even if other people think the decision is wrong or irrational, the decision to refuse treatment cannot be used by itself as proof that the person is incapacitated. In many cases, people refuse treatment based on fear, misunderstanding, or lack of trust. But refusal may also be a product of depression, delirium, or other medical conditions that can impair the person's capacity to make health care decisions.

A refusal of care should prompt the doctor to initiate further discussion to determine why the patient refuses care and whether any concerns the patient has about accepting care can be corrected. For example, patients who refuse care because they cannot afford it could be helped to apply for public benefits such as Medicaid or be told that a suitable payment plan could be arranged. A patient's competent refusal of treatment is not considered to be attempted suicide, nor is the doctor’s compliance with the patient's refusal legally considered doctor-assisted suicide. Rather, any subsequent death is legally considered to be a natural consequence of the disease process itself. Sometimes, a patient's refusal of treatment may harm others. For example, patients who refuse treatment of certain infectious diseases, such as tuberculosis, place other people at risk of infection. Also, people who refuse to allow treatment of others, such as a minor child or a dependent adult, may place that other person’s health at risk. In such cases, doctors often consult lawyers, judges, and experts in ethics.