By Josh Hyatt, DHS, MBE, MHL, DFASHRM, CPHRM, HEC-C, CPPS
Neighbors of a 56-year-old single female find her unconscious on her back porch. EMTs bring her to the emergency department where the attending physician diagnoses her with septic shock. The physician admits the patient who becomes alert but disoriented to time and place. The patient wants to be discharged home so she can care for her pets. The physician tells her a neighbor is caring for her pets and that she needs to stay and recover or she will likely die from the infection. After repeatedly stating she is fine, the patient tries to leave. The physician believes she does not understand the consequences of her medical condition and lacks decisional capacity. Hospital staff cannot locate her family or surrogate.
Physicians and institutions frequently encounter patients who, due to underlying medical conditions, lack decisional capacity but wish to leave against medical advice. If the patients are allowed to leave, their health may be placed at substantial risk. In these situations, state laws regarding psychiatric holds or involuntary commitment do not apply. Most states, however, do not have laws that address situations where incapacity is due to a medical rather than psychiatric condition. As a result, practitioners are left to weigh complex and often competing legal and ethical considerations when determining whether to discharge incapacitated patients or detain them against their wishes. A medical hold is a process by which a patient who is alert but lacks capacity due to a medical condition can be prevented from leaving the hospital so that they can be examined and treated.
Involuntary Psychiatric Hold vs. Medical Hold
Involuntary psychiatric holds are intended to protect patients who pose a threat to themselves or others and who lack decisional capacity due to a psychiatric
condition. The goal is to help the patient regain capacity by providing stabilizing treatment. Involuntary psychiatric holds/commitments are well defined by state law and typically limited to 72 hours to protect patient rights. These holds do not generally apply to capacity issues related to medical illnesses, nor do they provide a blanket consent to treatment for non-psychiatric conditions.1
However, when a patient is alert but incapacitated due to a medical
condition and wants to leave the hospital despite being at risk, it places practitioners in a difficult position. Patients without capacity cannot be allowed to leave the hospital against medical advice, yet state law may have no provision for holding or detaining these patients for their own safety. Often there are no clear organizational policies guiding the practitioners and staff who must manage these challenging situations.
Key Concepts in Medical Holds
- Capacity and competency. Decisional capacity is the cognitive ability of the patient to make autonomous decisions about their healthcare and their body. Individuals are presumed to have decisional capacity unless there is a reason to believe that their ability to make an informed decision is impaired by medical conditions (including psychiatric and substance use concerns). Capacity can wax and wane based on a medical condition and temporary cognitive impairment. The court adjudicates competency to make medical decisions and assigns an authorized decision-maker. The terms are sometimes utilized interchangeably, but they have significantly different legal definitions.
- Surrogate decision-making. A healthcare surrogate is an individual who makes medical decisions for a patient with impaired capacity. These individuals are appointed by the patient (either verbally, in writing, or by listing them in an advanced directive) or are designated by statute or appointed in a legal proceeding. The surrogate makes decisions based on two ethical frameworks: (1) substituted judgment or (2) best interest. The substituted judgment framework applies when there is an advanced directive or known patient wishes. The best interest framework applies when the patient's wishes are unknown, and the surrogate makes decisions aligned with the patient's values.
- Reasonable expectation of harm. If adequate medical treatment for an identified medical condition is not provided, is the patient likely to experience severe physical or mental harm? If so, it is essential to document these findings and conclusions in the medical record if the patient's capacity is impaired and you are considering a medical hold.
- Safe administration and assent. Even if a patient qualifies for a medical hold, conducting the assessments, providing the treatments, and monitoring the patient may be difficult if the patient is unwilling to participate or is combative. If the patient cannot consent due to a lack of capacity in an optimal setting, the goal would be assent. Assent is the patient's willingness to allow treatment when they lack capacity. If the patient does not assent to treatment, the risk of injury to the staff can be substantial. Forced treatment can result in emotional injury to both the staff and the patient.
- Patient assessment. Evaluate the following when determining the need for a medical hold:
- Capacity − Does the patient have the mental capacity and reasonable ability to exercise their right of autonomy? How is this determined and by whom?
- Surrogate − If the patient does not have capacity, is there a documented or known surrogate who can make medical decisions on the patient’s behalf?
- Court order − Does the patient lack competency to make medical decisions as ordered by the court? If so, who is the court-authorized decision-maker for this patient?
- Psychiatric diagnosis − Does this patient qualify for a psychiatric hold? What psychiatric conditions will be addressed to bring this patient to a capacitated state?
- Expectation of harm − If the patient is competent but lacks decisional capacity (outside of a psychiatric condition) and there is no surrogate to act on the patient’s behalf, would discharging the patient likely result in serious harm or death?
- Safe administration and assent − If utilizing a medical hold is a possible approach, can you safely administer treatment to the patient or convince the patient to assent to the treatments? How can you do this with the least amount of emotional residue for both patient and staff while protecting the patient's rights?
Medical holds should be imposed only in the context of a well-drafted policy and procedure that has been thoroughly reviewed by a multidisciplinary team and legal counsel. Consider the following when implementing a medical hold policy at your facility:
- Implement a policy and procedure. It is essential to develop an interdisciplinary policy and procedure on handling medical and involuntary psychiatric holds that is consistent with state and federal law. The policy and procedure should provide clear criteria for medical hold use, patient assessment guidelines, when to discontinue a medical hold, and documentation expectations.
- Establish a process for assessing capacity. Implement a consistent process for capacity assessment that aligns with state law. Inconsistencies in the approach can create defense problems for the practitioner and institution. Enlist the help of social services to locate family, friends, or previous healthcare providers that can provide insight into the patient’s baseline level of functioning and level of impairment. Thoroughly document all efforts to locate family and friends in the medical record.
- Utilize surrogates. Actively seek out and utilize surrogates for patients with capacity concerns. If the surrogate or conservator is willing and able to complete the consent for admission, the patient may be admitted voluntarily.
- Obtain assent and ensure safety. Document the incapacitated patient's willingness to participate in the assessment and treatment process. Utilize only measures that are the least restrictive, least invasive, and least harmful to the patient. Ensure that staff are aware of the patient's status and take safety precautions as needed. It may be appropriate to have another staff member present as a witness.
- Reassess capacity periodically. Since capacity can wax and wane, it is essential to frequently reassess the patient's capacity. Once the patient regains capacity, a medical hold is not appropriate.
- Consult other team members. Utilize your legal department and ethics committee/bioethicist to help clarify the rules and available options.
When done properly, the imposition of a medical hold likely does not impact a person's civil rights and civil liberties. This decision should not be taken lightly and should be well documented.
Copyrighted. No legal or medical advice intended. This post includes general risk management guidelines. Such materials are for informational purposes only and may not reflect the most current legal or medical developments. These informational materials are not intended, and must not be taken, as legal or medical advice on any particular set of facts or circumstances.
- Cheung, EH, et al. "The Medical Incapacity Hold: A Policy on the Involuntary Medical Hospitalization of Patients Who Lack Decisional Capacity." Psychosomatics (2018): 169-176.