An informed consent is the permission granted by the patient to the doctor with the knowledge of possible consequences in terms of risks and benefits. The doctor discloses appropriate information to a competent patient who makes a voluntary choice regarding his/her treatment.
The process of obtaining informed consent in patients with diminished mental activity has procedural difficulties due to a lack of concentration and cooperation and ethical dilemmas due to the incapacitation in these individuals, hence, unreliable judgments.
In psychiatry, informed consent is needed for:
- Procedures such as electroconvulsive therapy (ECT), anesthesia and sedation, restraint, and blood and blood products transfusion.
- Research trials in psychiatric patients where incapacitation drags the initiation and discontinuation of treatment under investigation and other hindrances, thus, low-quality data and results. In research, legally acceptable representatives (LAR) should be sought before starting trials to avoid such frustrations.
- Discharge against medical advice (AMA) or attempts to leave the hospital without documents or against medical advice by patients with clouded sensorium.
Informed consent in psychiatry is built on:
- Voluntarism which is the individual’s ability to judge and independently engage in what the individual sees as right and best for him/her. It depends on the maturity of the person as exhibited in prior decision-making, psychological issues, social and cultural issues such as the moral authority to do so.
- Information disclosure which is the availability of all necessary information. It is important, especially in research, where the purpose, process, possible risks, and benefits of engaging in the research and reservation of a right to withdraw are necessary.
- Decisional capacity which is the ability to make rational decisions based on comprehension of information and logical reasoning.
In altered mental status, it is important to determine whether the patient has the capacity to make informed health care decisions and consent. Physicians who understand the patient’s medical illness and have skills in determining the patient’s capacity may include psychiatrists, geriatric psychiatrists, and geriatricians.
If an incapacitated patient consents to something, say signing an AMA document, the chances are high that the document will be declared invalid and significant liability could ensue if the patient were to leave and have an adverse outcome. Urgent legal assistance should be sought to hold the patient against his or her will.
Competence and capacity
Competence is the possession of the ability, both legal and natural, to engage in a given behavior. It entails many activities including, but not limited, to the following:
- Ability to enter into a contract
- Prepare a will
- Stand a trial defense
- Make a medical decision
Incompetence is a judicial decision arrived at in court proceedings based on an expert witness’ (forensic psychiatrist) submission.
Capacity is the individual’s ability to form a rational decision based on his/her understanding and available information. Incapacitation is a physician’s (psychiatrist) decision which is commonly applied in substituted consent scenarios to avoid halting the medical process as the doctors await a legal consent.
Given the overlap in the application of the concepts, the words are used interchangeably in practice to mean the same thing.
Questions on competence and capacity of a patient arise in 3 – 25% of patients and most times go undetected.
Assessment of competence and/or capacity
In most nations, the law of presumptive competence dictates that every person over the age of 18 years enjoys autonomy and self-determination, thus, has a right to accept or decline medical treatment. However, the person must have the ability to make a reasonable decision at the time. The role of the psychiatrist is to determine whether the patient is in such a state or not.
To demonstrate the presence of competence, the following abilities should be identified in the patient:
- Understand the information given by the psychiatrist if form of choices.
- Appreciate the consequences of his/her selection and demonstrate the ability to think through all other choices.
- Make, maintain, and communicate a choice.
- Make the decision in a rational manner.
This does not require medical tests or given assessment rubrics, but the psychiatrist asks several questions to assess the above determinants.
In the event that the patient lacks the capacity to make certain decisions, the psychiatrist should offer emergency treatment if needed and seek the decision later or, if possible, locate a surrogate, family member or a court appointed guardian who can offer substituted consent for the procedure or process. This line of action requires collaborating a plan of action from at least two senior psychiatrists, thus, it is always necessary to consult a colleague.
Some challenges encountered during assessment of competence include:
- The change of competence levels with time renders the older assessment invalid
- Competence may vary with tasks
- The patient’s decision may not be same as the decision made by the surrogate/ guardian
- Presumptive lack of capacity in older children is flawed
- The improvement in capacity with treatment is rarely appreciated
The justice system relies on expert witness testimonies (forensic psychiatrist) to determine the reliability of criminal matters of a psychiatric patient involvement, such as:
The fitness to stand trial (FST)
- The presumption of fitness to stand trial advocates for use of the phrase “unfitness to stand trial”.
- Usually the legal proceedings are put on hold until the fitness assessment is complete which begins with an order given by the judge following his/her assessment of the person after appearance in court or following a plea from the accused’s lawyer.
- The psychiatrist assesses the accused through a set of questions and prepares a report with the same details.
- Later, a fitness hearing takes place in court with the accused and evidence called to the courtroom. The judge considers the evidence before the court and witness submissions to declare the accused “unfit to stand trial” or not.
Not guilty by reason of medical illness (NGMI)/Not guilty by reason of insanity (NGRI)
It is also known as an insanity defense which is defined as the exoneration of a criminal based on the prove that the defendant is not responsible for the said activity due to episodic or persistent treatment at the time of the criminal activity.
It entails exemption from full criminal punishment as opposed to the excuse of provocation where the punishment is lessened due to the temporary mental state inflicted on the accused.
The prove lies on the hands of a psychiatrist who performs a full mental examination. Some psychiatric disorders are considered basis of a sanity defense such as:
- Severe depression,
- Anxiety, and
- Post-traumatic stress disorder (PTSD).
The physiological basis of these diseases has been shown to affect the person’s perception of reality.
However, some disorders are excluded from the list to maximize on the restrictions, such as:
- Voluntary intoxication,
- Pyromania, and
Malpractice in psychiatry
Just like other fields of medical practice, psychiatrists may be liable when harm occurs or is caused by the psychiatric patient. The psychiatrist-patient relationship is a hard one to establish but, on initiation, it is a relationship filled with trust and prone to exploitation and malpractice risks.
The risk for malpractice among psychiatrists arises from five factors.
This is the most common cause of malpractice claims amongst psychiatrists, especially those offering in patient care. It rarely happens in the outpatient setup. Malpractice emerges when the doctor does not record any prior suicidal ideation or attempts and the patient takes his/her life. It is important to record even the most unlikely event and assess the plan and nature of execution alongside its practicality and need for hospitalization.
Lack of emergency help
The call from a psychiatric patient to issue a threat may be viewed as a normal occurrence. A delay in the deployment of emergency assistance is a common cause of liability for a psychiatrist who offers follow-up help at outpatient settings.
Adverse effects of medications
Patients react differently to medications and unpredictable adverse effects, such as violent behavior after an intake of medicines, have been documented. The psychiatrist is blamed for not notifying the patient and family in advance and harm occurs to the patient or family members.
Development of adverse effects, such as tardative dyskinesia to incapacitating and irreversible levels, are common causes of litigation; therefore, every time a psychiatrist prescribes a drug, he/she should exhaustively explain the undesired effects associated with the drug.
Exploitation of the trust in the relationship (sexual misconduct)
In a few instances, the psychiatrist takes advantage of his/her powerful position and sexually exploits a patient, thus causes sexual harm which the psychiatrist is liable of. The most common scenario is false accusations of sexual abuse from the psychiatric patient.
The claims may be aimed at financial gain or arising from the effects of a borderline personality disorder. Usually, the patient has prior episodes of sexual approach to make the claims look possible; thus, every psychiatrist in a close relationship with a patient suffering from such disorders should record the nature of the disorder and any abnormal behaviors manifested by the patient in prior visits.
Third party disclosure liability
It is common to receive homicidal threats from psychiatric patients and, even with proper documentation to avoid litigation, problems may arise in deciding whether to inform a third party.
In all medico-legal proceedings involving malpractice, the following must be proved beyond doubt for a conviction.
- An established doctor–patient relationship which is established when the doctor examines the patient, prescribes medication or any form of treatment. Existing medical documents, such as prescription notes, bills, or phone calls provide evidence of an existing relationship.
- Negligence from the practitioner and failure to offer psychiatric services to a level another competent practitioner could have offered. The recommended level of care as per the regulatory body requirements is known as standard of care which is presented in court by a qualified psychiatrist as an expert witness. The complainant must prove the presence of a breach in this standard of care.
- Harm must have occurred either on the patient or on another person but inflicted by the patient. Common forms of harm include monetary losses due to unnecessary medications, pain due to injury caused by a violent patient, and loss of jobs due to incapacitation.
- The harm to the patient or caused by the patient must be traced from the negligence and breached standard of care. This is known as establishment of a causal link between negligence and injury.