Treatment Over Objection Part 2
- 02:19 Review of Framework with Case 1
- 07:59 Case 2
- 09:04 Consent vs. Assent
- 11:11 Role of Consult Services
- 13:16 Role of Surrogates
- 15:29 Conclusion
- Case: Patient with a history of schizophrenia refusing imaging for swollen leg and becoming violent with staff
- If a patient is refusing all diagnostics and treatments, minimize diagnostic tests as much as possible. Only order tests that will change management. Think carefully about what treatments are feasible for the patient, given their circumstances
- In cases where patients become violent, safety has to come first – if the situation can’t be de-escalated, sedatives and restraints may be necessary. Safety has to come first for both the patient and staff
- Case: Patient with new psychotic symptoms refusing lumbar puncture for workup
- What is the difference between consent, assent, and refusal?
- Consent: the patient has capacity, and gives their informed consent
- Assent: the patient does not have decisional capacity for the intervention being discussed, but cooperates
- Refusal: the patient refuses the procedure. In cases where the patient does not have decisional capacity, this may result in consideration of treatment over objection
- What consult services should be involved?
- **If the necessary treatment is emergent (ie, the patient could die or lose a limb if treatment is delayed), then proceed without delay.**
- For non-emergent cases:
- Psychiatry should be consulted if:
- It is unclear whether the patient has capacity
- The patient lacks capacity for a psychiatric reason (in some states, like NY state, law requires that psychiatry be consulted in this situation)
- Risk management/legal usually needs to be involved. If in doubt, check your hospital’s policy and state law
- What is the role of surrogates?
- Surrogates can help us understand the patient’s needs and preferences better, and can provide context that helps the team come up with an ethically appropriate recommendation
- However, we shouldn’t expect surrogates to be the ultimate judge of whether treatment over objection is right or wrong. Surrogates have expertise on the patient, but we can’t expect them to have the expertise in medical decision-making and the ethical implications of the decision at hand.
- What is the difference between consent, assent, and refusal?
Margot: It was July in my third year of residency, and we got a patient from the emergency room who came up in 4 point restraints. This was a man who lived on the streets and had a known history of schizophrenia; EMS brought him in because he was acting erratically. In the ED, they noticed that one of his legs was massive, hot to the touch. They tried to scan the leg to see if he had a DVT or cellulitis, but he screamed at anyone who came near him, and physically threatened staff.
I woke up with nightmares about this patient for weeks. The first time I undid his restraints, he lunged at me, and the next day he eloped three times. Psychiatry guided his antipsychotic management, but it was days before he was calm enough for us to complete imaging. So we treated him empirically with both blood-thinners and antibiotics until we could get more diagnostic certainty, and eventually dopplers showed a clot.
When I think back to this case, I feel shame, and guilt, and a profound sense of inadequacy. I was trying to be a good doctor, trying to lead my team empathetically and model compassionate care – but when I had to jump out of his way to avoid being hit, I ordered haldol and restraints. The only part of this case that feels redeeming came months later, when I was walking home from an overnight shift and saw him sitting on the stoop to my apartment building. He was back on the streets, but he was free – and his legs were back to normal.
In our last episode, we talked about an ethical framework, meant to help you weigh the pros and cons of treating over objection. But theory can be hard to put into practice. Today we’re going to talk about the on-the-ground experience of caring for these patients – the logistical challenges, the emotional burden, the role of surrogates and consultants. Welcome back to At the Bedside – I’m Margot
Tamar: I’m Tamar
Jafar: and I’m Jafar
Margot: And you’ll recognize our expert, Dr Prager, from our last episode.
Dr. Prager: I think that you’re dealing with fundamental ethical principles over here and you owe it to yourself, to the patient, to the profession of medicine to take the time to do it right. And ethical.
Margot: He’s a pulmonologist, and the director of clinical ethics and chairman of the medical ethics committee at Columbia.
Tamar: Last episode we introduced the seven questions Dr. Prager and his colleagues came up with to help decide whether to treat a patient over objection. We want to start by reviewing that framework and talking about how these questions apply in the tough case Margot just described.
So the first question to ask ourselves is: what is the likelihood of considerable harm if we don’t treat the patient? The more severe the likely harm is, the more we need to consider moving forward with treatment.
The second question is how imminent this harm will be without treatment. This really dictates how long we have to think the whole dilemma through.
Dr. Prager: The man is not going to die from cellulitis, immediately get septic, obviously, but right, this is not really imminent. Um, but If he does have a significant DVT, uh, you know, it, it can embolize at any moment, it’s, it’s like a ticking time bomb, like the sword of Damocles you just never know when you feel very uncomfortable, especially since it sounds like this was a pretty swollen leg. And, uh, so the imminence there, um, is questionable, but it could be catastrophic if something like a major pulmonary embolism occurred.
Tamar: For the third question, we need to weigh the efficacy of the treatment we’re considering. And for the fourth question, we need to ask about its risks.
Dr. Prager: That’s obviously great in both cases with antibiotics, with anticoagulation, obviously the efficacy is great. The risks: well, the risk for antibiotic, unless the patient has multiple, multiple allergies is pretty low, but the risk of anticoagulation here, again, I think clinical context is important just to cite an example. What if this man had known metastatic lung cancer, okay. And he had a brain met. Now, giving anticoagulation to somebody with a brain met is something you don’t want to do. And you’re a little bit in a bind in that situation. Um, and of course having lung cancer, and you might have a DVT, et cetera, et cetera, be hypercoagulable, but assuming that the patient didn’t have any other significant comorbidities, uh, the risk of major bleeding is, is pretty low, uh, especially with our newer agents today. So I would say that, that I put that on the lower side and saying efficacy clearly outweighs the risk.
Tamar: The fifth question is: what will be the emotional effect on the patient of forcing this treatment on him? For example, we need to think about whether he could lose trust in the medical system. For the sixth question, we need to consider what this patient’s reason is for refusing and whether we can ethically justify overriding that reason.
And finally, the seventh question is: What are the logistics of treating this patient over objection? And this case brought up how important it is to look at the whole picture – there are logistical concerns not just in delivering the treatment, but also in getting the diagnostic tests that help us decide what the treatment should be.
Dr. Prager: I think a mistake is not thinking ahead and saying, what am I going to do with this information that I am forcing this patient to undergo, this test that I’m forcing them to undergo? I think a common mistake is, is adhering to the medical textbook approach to every diagnostic question and saying, we have to check off all the boxes.
You know, as well as I do, we do an awful lot of testing that’s not that critically important. We have check boxes, somebody has chest pain, we got to do A, B, C, D E, but really when you have a patient who’s objecting, maybe we just have to do B and C and not A, D, E. And I think that’s really where that that’s really where you have to, you know, emerge as a, as a clinician, as the art of medicine, not just the technician who checks off the boxes, these are all the things that I have to do. It’s especially important when you’re dealing with a patient where, where there may be problems with afterwards – diagnosing stage four lung cancer in a person who is objecting and objecting. You, you’re not going to get this person chemotherapy. So it’s not that critically important to know every organ that may or may not be involved. You have to think ahead, what am I going to do with this information? How can this be helpful to the patient? Will it be possible to implement the treatment strategies that this test may show us?
Tamar: In this case, the test was necessary to determine whether the patient needed antibiotics or anticoagulation, and also how long he needed to remain inpatient to receive the treatment.
Dr. Prager: The logistics of sedating this patient for the Doppler, again, depends on the patient. If he’s an otherwise healthy man, you can sedate him. If he’s somebody who as horrendous emphysema, CO2 retention, and, you know, uh, and he’s very, that’s, that’s risky than, than sedating this man could result in respiratory failure.
Tamar: Now beyond the tough consideration of treating over objection, this case raises another incredibly difficult issue. Restraining a patient, for his safety or the safety of others, is a deeply morally distressing decision. We’d need much more time to have a real discussion about the rare circumstances when these measures could potentially be justified, and the impact they can have on the patient and the care team, but we still wanted to touch on this point with Dr. Prager.
Dr. Prager: The safety of the medical personnel is paramount. That’s number one. It may sound selfish, but it’s the right thing to do. Part of medicine is having to do things that we don’t want to do and don’t like doing.
I think the ethical thing to do is to do your due diligence, to make sure that there were no other options and not do it sloppily or at the snap of a finger, just, just restrain the person; that’s, that’s wrong. But if you’ve done your due diligence and it is universally agreed that this was the only option, then you have to do it. And I think you should at least feel that, um, that at least there was no option. This is part of my job, I have to do this.
Margot: At this point I’ve had a few years to think about this case. I’ve thought about our use of sedatives and restraints, about how unprepared I felt, about the pain it caused the patient, the nurses, and everyone on the team. And while this case certainly didn’t have a happy ending, I do think we chose the least terrible option. The alternative would have been letting this man die of a treatable medical illness – and while I can’t fully forgive myself for the restraints, it would have been far worse to let him die.
Margot: Now we want to turn now to a different set of logistical questions, which came up for a patient I cared for several years ago. This was a middle-aged woman who was brought to the hospital for strange behavior, and was displaying psychotic symptoms that by all accounts she had never had before – laughing gently in response to internal stimuli, grandiose ideas about her ties to celebrities, wandering into other patients’ rooms for no clear reason. She was older than you’d expect for someone to have a new diagnosis of schizophrenia, so we consulted neurology and they recommended a lumbar puncture. Her family consented but the patient refused, saying she didn’t need it. We were thinking about getting a court order to do the LP over her objection, but one afternoon we got her brother on the phone, who talked the patient into lying on her side and allowing us to do the tap. Everything ultimately came back negative, so psychiatry took over her care.
Jafar: So this case brings up several interesting points, and right now we’ll break down three of them: first — we’ll talk about the formal definition of consent; second — the role of consult services; and third — the role of surrogates. To start, I think this case nicely illustrates the difference between consent, assent, and refusal.
Dr. Prager: Consent implies that the patient has capacity and it’s informed consent. You’ve told the patient what you’re advocating. You’ve told them what their options are. You’ve told them what the potential pros and cons of each of the options are and the patient makes a decision and consents to a particular treatment, or they refuse a particular treatment. And the, uh, assent is when a patient does not object to a particular recommendation or two in the intervention, but the patient lacks capacity, they don’t object.
They really can’t give informed consent because because of their underlying psychiatric or medical conditions, um, uh, obviously we should at least understand that assent is not the same as consent and it, and we have an ethical obligation to make sure that at least somebody in that person’s life understands the issues and can consent for the patient.
Jafar: You know, sometimes we take for granted that we’re getting “consent” from patients who really don’t have the capacity to offer that… an issue we don’t look at too often since they’re doing what we want them to do. Ethically hazardous, but sort of the complete opposite situation: not treatment over objection, it’s treatment without full consent!
Dr. Prager: I will bet you that if I were to go on the ward now here at Columbia or any hospital, and I were to do a strict capacity assessment on a medical ward, I’ll bet you that up to 30, 40% of the patients would fail the capacity test. How many of those patients had a psychiatry or ethics consult when they agreed to the procedure? None.
I think that we probably end up getting a lot more assent than we think we’re getting when we, when we think we’re getting consent. And I think it’s good to be honest with ourselves. Having said that, I don’t want to make light of it. I think that for relatively small procedures and small interventions, I don’t think it’s a big deal. I do think it’s a big deal if we’re talking about major surgery, if we’re talking about major treatment chemotherapy and something like that, I think it really behooves us to make sure that patient can give informed consent, really knows what’s going on and if not them then get somebody, one of their surrogates.
Jafar: The second major point this case brings up is: what consult services should be involved in cases of treatment over objection?
Dr. Prager: I think any time that you’re going to treat over objection, unless it’s ultra emergent, you don’t have a chance to call anybody, I think ethics should be involved. Uh, if it’s clear that the patient lacks capacity, I don’t think you need to call psychiatry. Psychiatry could be very helpful though, in cases, just like the one you showed where we need some type of sedation for the patient. Absolutely. Or if the core of the reason for the patient’s lack of capacity may be amenable to psychiatric treatment. Obviously psychiatry should be, should be called in that case.
Jafar: And it may not just be clinically indicated: these kinds of consults can be legally required. For instance, in New York state, psychiatry needs to be consulted if a patient lacks capacity for a psychiatric reason.
There are way more state- and hospital-specific policies than we can break down here, but just know that you may need more hands on deck to do these cases right. Your local ethics consultation service will likely be aware of when lawyers need to be involved, so they can be a big help here, and should be involved whenever possible. But, what if you’re dealing with an emergency and a patient is refusing a life-saving intervention for a reversible problem?
Dr. Prager: If in doubt, and you think the patient’s life’s at risk – treat. If in doubt, opt for life, and we’ll deal with the fallout later. You don’t want to lose a patient or have a patient suffer significant morbidity because we’re on the phone trying to get a hold of ethics or, or, or legal or whatever. The ethical thing to do is act your patient’s best interest when the stakes are that high. It’s a judgment call obviously, there’s no equation that you can plug in the variables and come out with the answers. As long as you can justify that you acted reasonably, I think that’s all that’s necessary. You know, people are not looking to cast stones at doctors for, for every possible reason. People want to give doctors the benefit of the doubt in an emergency situation, when you can make a reasonable case for having treated, they allow that, that’s allowable, that’s appropriate. That’s ethical.
Jafar: And the third point: what is the role of surrogates? In general, surrogates are a critical part of providing care to any individual who lacks capacity, and especially in cases of treatment over objection:
Dr. Prager: Surrogates are obviously almost always very helpful. And I think they’re helpful in this way. They’re helpful in giving us background on the patient: the patient now lacks capacity? They’re making no sense. Who is this person, what is their background? What’s the psychosocial issues, et cetera. And they can provide us with important contextual information that will enhance our ability to come up with an ethically appropriate recommendation.
Jafar: While they can help us understand the patient’s wishes better, they’re not there to be the ultimate judge of whether treatment over objection is right or wrong. The information and consent that they offer on the patient’s behalf is just one piece of the puzzle.
Dr. Prager: Because a surrogate says, go ahead or don’t go ahead doesn’t mean it’s the ethical thing to do. And I’m not casting aspersions on surrogates. I’m just saying, if you have an ethically fraught situation, they are no greater ethics experts than anybody else. They may do this out of love and clearly out of the right motives. But just because they say operate on my father or dialyze my father or amputate my father, it doesn’t mean that that is ethically appropriate.
If you feel that it’s appropriate to treat over objection and the surrogates agree, then that’s great. Then you have backup with surrogates, ethics, medicine, et cetera. But there may be a situation where the surrogates say, “I don’t care what my father says, or my mother says, I want you to treat them,” where you may feel as a physician that it is unethical, that it’s wrong.
And in a situation like that, I personally would not automatically knee-jerk say, okay, the relative is saying, ok, go ahead and treat – no, I would use the same seven questions to analyze the situation because we’re dealing here with ethics, is it right? Automatically outsourcing the decision to surrogates does not remove the ethical question.
Margot: We covered a lot today, so I wanted to close out with a recap of the main points. As Tamar discussed, when considering tests and treatments, you may have to veer from the gold-standard approach. Which tests are actually going to change your management? And what treatments are feasible for this specific patient in this specific situation? We also touched on the subject of restraints, violence, and moral distress, and while each subject in itself could fill a book, the key take-away is that safety has to come first for both the patient and the staff.
Then Jafar walked us through the difference between consent, assent, and refusal. We discussed the consult services that should be involved: psychiatry should often be on-board, and ethics should definitely be called unless the treatment is so emergent that there’s no time to wait. Finally, we talked about how surrogates can help us understand the patient’s needs and preferences better, but we shouldn’t shift the burden of ethical decision-making onto their shoulders alone. Dr Prager gave us one final piece of advice:
Dr. Prager: I have a mantra: The ethics flow from the facts. The more you have the medical facts, the psychosocial facts, the easier the ethics is. And again, it’s a question of sitting down and taking the time to get those facts. The right thing but it was hard to know what the right thing was. These cases are humbling, but I think humility is warranted when you’re trying to balance ethics, and dignity, and emotions are running high and the logistical problems are piling up and the decision you make might actually be a matter of life and death. While there are no easy answers for cases of treatment over objection, we hope these two episodes can help point you in the right direction, and work through the emotions that may come up along the way.
Jafar: Thanks for tuning in! We know these topics can stir up more questions than answers, and we look forward to hearing more about your experiences with treatment over objection. Please continue the conversation with us online at our facebook page, on twitter, or email us directly. Find show notes and contact information for us on our website: coreimpodcast.com
If you enjoyed listening to our show, and you’d like to provide podcast recommendation over objection, please give us a review on itunes or whichever podcast app you use; it helps other people find us. We work really hard on these podcasts so we’d love to hear from you. Let us know what we are doing right and how we can improve. And as always opinions expressed in this podcast are our own and do not represent the opinions of any affiliated institutions.
Finally, special thanks to all our collaborators on this episode, our wonderful audio editor Daksh Bhatia, our illustrator Michael Shen, endless technical support from Harit Shah, moral and executive support from Shreya Trivedi, and most importantly thanks to you, our listeners!
- Fischkoff, D., Prager, K., Dastidar, J., Dugdale, L., Neuberg, G., Nemeth, S., & Fischkoff, K. (2021). Ethical Framework to Guide Decisions of Treatment Over Objection. Journal of the American College of Surgeons, 233(4), 508-516.
- Rubin, J., & Prager, K. M. (2018, July). Guide to considering nonpsychiatric medical intervention over objection for the patient without decisional capacity. In Mayo Clinic Proceedings(Vol. 93, No. 7, pp. 826-829). Elsevier.
Tags: cases, ethics, humanities