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Informed consent

Informed consent is a 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 product transfusion.
  • Research trials
  • Discharge against medical advice 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: ability to judge and independently engage in what the individual sees as right and best for him/her
  • Information disclosure: availability of all necessary information, where the purpose, process, possible risks, and benefits are informed in terms that could be understood
  • Decisional capacity: 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.

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.

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
  • 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.

Some challenges encountered during the 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 the 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

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.

Suicide occurrences

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 in an outpatient setting.

Adverse effects of medications

Patients react differently to medications and unpredictable adverse effects, such as violent behavior after intake of medicines, have been documented. Development of adverse effects, such as tardive 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 for. The most common scenario is false accusations of sexual abuse from the psychiatric patient. Thus every psychiatrist 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 the third party.

If a patient threatened to kill his neighbor, do you disclose the patient’s diagnosis and progress details with the neighbor or even the police? This would account for breach of doctor-patient confidentiality. On the other hand, maintaining confidentiality might bring up charges of negligence to the doctor if the patient goes ahead and commits murder. The right decision in such a case depends on the situational reality of the threat and the favor of the laws of the land.

In all medico-legal proceedings involving malpractice, the following must be proved beyond doubt for a conviction.

  1. An established doctor-patient relationship is established when the doctor examines the patient and prescribes medication or any form of treatment. Existing medical documents, such as prescription notes, bills, or phone calls provide evidence of an existing relationship.
  2. 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 the 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.
  3. 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.
  4. The harm to the patient or caused by the patient must be traced from the negligence and breached the standard of care. This is known as an establishment of a causal link between negligence and injury.
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