Patient Rights and POA

Susie2310 · Sep 11, 2017

Davey Do said:
I am really confused. I thought I had a handle on when the POA assumes responsibility over a Patient's care thing.
Not being competent to make decisions is a legal process that needs to be ruled on by a Judge, or so I thought. I also thought POA's could only step in where the Patient is found to be incompetent, or unable to make their own decisions, as in the case of unconsciousness.
A Physician having the total power to rule on an Individual's competency just doesn't sound right to me.
Please. Do elaborate.

In my state, in addition to having the option of a POA that takes effect when one is no longer able to make health care decisions for oneself, one has the option of designating a POA decision maker to make health care decisions for one while one is still able to make health care decisions for oneself, to take effect from the date the form is signed and witnessed.

Anonymous865 · Sep 11, 2017

The laws vary from state to state.

In my state competetence is a legal definition and has to be determined by the courts.

Decision making capacity is a medical term and is determined by a physician.

A healthcare proxy takes effect when a) a patient is unable to communicate their wishes or b) when a patient lacks decision making capacity.

The standard for decision making capacity is higher when the consequences of the decision are greater. e.g. Refusing a shower requires lower decision making capacity. Refusing a treatment that has low risk and very favorable outcome requires a higher standard for decision making.

In your case, is it possible that because of their long mental health history, your patient was judged by the court to lack competence to make health care decisions and the courts appointed someone to make decisions for them?

I have a niece who has Down syndrome. When she turned 18, her parents requested that the courts give them healthcare power of attorney for their adult child. The court determined that because of the Down syndrome my niece lacked the competence to make medical decisions and granted that authority to her parents.

Susie2310 · Sep 11, 2017

shannonh17 said:
Hi everyone,
Any advice/responses on this topic would be appreciated!
I recently had a patient who was admitted for a GI bleed. The patient was AO x 4; however, she had her mother as her POA. The patient was in need of a blood transfusion, initially, she was refusing and not wanting to sign the consent for a blood transfusion. After informing the doctor of the patients refusal, the doctor stated that the blood transfusion could still be started by having the POA sign the consent.
Am I crazy, or is this incorrect? From my experience, I always thought that the POA only took over when the patient was unable to make these decisions on their own? The patient was oriented, but did have a long history of mental health disorders. Ultimately, the patient decided to sign the consent on her own, but I am still left wondering, was I wrong for believing that the patient still had the right to refuse a transfusion????

This post brought up some difficult questions for me, and that is why I thought that if I had been in the OP's situation I would like to learn from the BON what my actions towards/for the patient should have been here, so that I would know this for future similar situations.

The patient was A+Ox4 and her mother was the POA. The patient was refusing to sign the consent for a blood transfusion and the doctor stated the transfusion could be started by having the POA sign the consent. The questions that came up for me were: 1) Can I rely legally on the doctor's determination that the consent can be signed by the POA without my having more knowledge of the situation, since the whole situation appears to me to be unclear? 2) Under what conditions does the state law permit that the POA can sign instead of the patient - when the patient is unable to give informed consent, or when the patient can still give informed consent, and which situation applies to the patient, and do any additional circumstances apply? 3) Has the patient been determined by the doctor to be capable of giving informed consent for the blood transfusion? I presumed yes, but I think I would want to know this for sure in this specific situation 4) If the patient can give informed consent, does her refusing to sign the consent allow the POA to override her wishes and sign the consent in her place even if the POA has authority to make decisions for the patient? 5) Although the patient ultimately signed the consent, did she do so of her own free will?

To me, the situation poses a conundrum, and although I know that my duty as a nurse is to safeguard the patient's rights and safety, it's not clear to me what action I should have taken in this situation.

Jory, MSN, APRN, CNM · Sep 15, 2017

shannonh17 said:
Hi everyone,
Any advice/responses on this topic would be appreciated!
I recently had a patient who was admitted for a GI bleed. The patient was AO x 4; however, she had her mother as her POA. The patient was in need of a blood transfusion, initially, she was refusing and not wanting to sign the consent for a blood transfusion. After informing the doctor of the patients refusal, the doctor stated that the blood transfusion could still be started by having the POA sign the consent.
Am I crazy, or is this incorrect? From my experience, I always thought that the POA only took over when the patient was unable to make these decisions on their own? The patient was oriented, but did have a long history of mental health disorders. Ultimately, the patient decided to sign the consent on her own, but I am still left wondering, was I wrong for believing that the patient still had the right to refuse a transfusion????

99.9% of people do not understand how a POA works. The POA only works if the patient themselves are unable to consent to a procedure.

That means if the patient is alert and oriented, the patient gets to decide...not the POA.

Period.

That physician just signed himself up for a major lawsuit. READ THE POA...the parameters are right there in black and white.

Jory, MSN, APRN, CNM · Sep 15, 2017

Susie2310 said:
I think that if I had been in your position I would call my state Board of Nursing and ask their advice on how to proceed in the situation you described.

That is legal advice and they are not going to answer that question. However, I would report the situation to Risk Management. That physician needs additional training.

elkpark · Sep 15, 2017

Jory said:
99.9% of people do not understand how a POA works. The POA only works if the patient themselves are unable to consent to a procedure.
That means if the patient is alert and oriented, the patient gets to decide...not the POA.
Period.

Did you even bother to read the rest of the thread? Once again: There is a lot more involved in whether or not an individual has the mental capacity to make informed decisions about healthcare than simply whether or not the person is "alert and oriented." It is entirely possible to be oriented x 4 but lack capacity to make informed decisions (in which case, the decision-making responsibility falls on the POA, as you note). It is entirely possible to be disoriented and yet have the capacity to make informed decisions.

Why do so many people here have such a hard time grasping this?

Susie2310 · Sep 15, 2017

Jory said:
That is legal advice and they are not going to answer that question. However, I would report the situation to Risk Management. That physician needs additional training.

I fully understand that the situation involves legalities. I personally would still consider it worthwhile asking the BON their position in this complicated situation - that is not asking for legal advice. What action would you take? Would you administer the blood transfusion? Or are you saying you would report the situation to Risk Management and refuse to administer the transfusion until they ok'd it?

MunoRN, RN · Sep 15, 2017

There's not really any gray area here, assuming there wasn't information left out then the scenario includes a patient who is competent to make their own decision, in which case the POA doesn't come into play. And even if you for some reason ignored the patients refusal of a transfusion, the POA is required to make the decision the patient would make to the best of their knowledge, not what POA thinks the patient should do. While there are some fine points regarding POAs that vary by state, these basic requirements and definitions are common to every state.

If I came across a physician who did this I explain to them how POA's and patient decision making works, and probably report them to the facility's medical director, risk management, and their governing body.

Jory, MSN, APRN, CNM · Sep 22, 2017

elkpark said:
Did you even bother to read the rest of the thread? Once again: There is a lot more involved in whether or not an individual has the mental capacity to make informed decisions about healthcare than simply whether or not the person is "alert and oriented." It is entirely possible to be oriented x 4 but lack capacity to make informed decisions (in which case, the decision-making responsibility falls on the POA, as you note). It is entirely possible to be disoriented and yet have the capacity to make informed decisions.
Why do so many people here have such a hard time grasping this?

Yes, I bothered "reading the rest of the thread", I figured alert and oriented didn't need a whole paragraph of explanation on what that entailed as the OP already made it clear that the patient had their faculties together on a case management forum.

Define "lacks the capacity"? Capacity and competency are not the same thing. I think it is safe to say that over half of hospitals don't have the resources for a psychiatrist to come and spot assess a patient for the individual's psychological abilities to form rational decisions, specifically the individual's ability to understand, appreciate, and manipulate information and form rational decisions.

An internal medicine physician isn't qualified to make that determination unilaterally. Patient doesn't have the capacity...according to what criteria? That is where you'll run into the problem. It is very clear from the OP that the physician was using the POA as a way to sidestep the patient in order to make his life easier. In our hospital if a patient is oriented and there is a conflict in a course of treatment between the patient and POA we get social services involved and they provide direction. If a psychiatrist needs to be involved, they can get one in short order, same day if it's a pressing matter. If you do anything less than follow those steps you are setting yourself up for liability when the patient recovers and finds out what happened.

What you are suggesting is almost an intelligence test for medical decisions.

Jory, MSN, APRN, CNM · Sep 22, 2017

Susie2310 said:
I fully understand that the situation involves legalities. I personally would still consider it worthwhile asking the BON their position in this complicated situation - that is not asking for legal advice. What action would you take? Would you administer the blood transfusion? Or are you saying you would report the situation to Risk Management and refuse to administer the transfusion until they ok'd it?

It's not about the procedure it's about who makes the decision. You are asking them if you can follow a physician's order when the patient has refused, has a POA, and the physician is unilaterally deciding to ignore the POA. Risk management is the better place to call (ours is on call 24/7) because they can tell you EXACTLY what is required.

Yes, if the patient has refused and the patient is alert and oriented and we don't have a mental health professional (which is not an internal medicine physician) saying the patient cannot make their own decision (regardless of why), I would run it by risk management.

I'll give you an example. We had a patient that was off his rocker due to several imbalances. He had a POA, but he was technically alert and oriented. He clearly did not understand why he needed to stay, cursing, screaming, yelling, throwing things out of frustration of being told he needed to stay..all out of character for this patient. He was never going to be rational until his imbalances were corrected, but he was refusing treatment and vocalizing very loudly that he would sue everyone in the hospital if anyone touched him. Security called to try to stall him from leaving AMA. The internal medicine physician tried to do a medical temporary detention order and it was DENIED by the magistrate. They talked to the patient on the phone and the physician was told that unless it was psychosis, he was suicidal, or homicidal, there was nothing they could do to hold him there because he answered all of the magistrates questions appropriately. Refusal of treatment that may result in his death was his right to make. Adult protective services would not get involved because he was under the age of 65 and did not have a documented mental or cognitive disability. Patient went home, eventually went unresponsive several hours later, brought back to the hospital and got the treatment he needed.

That....is how far "patient makes their own decisions" goes. Situations like that are gut wrenching to watch play out.

Susie2310 · Sep 22, 2017

Jory said:
It's not about the procedure it's about who makes the decision. You are asking them if you can follow a physician's order when the patient has refused, has a POA, and the physician is unilaterally deciding to ignore the POA. Risk management is the better place to call (ours is on call 24/7) because they can tell you EXACTLY what is required.
Yes, if the patient has refused and the patient is alert and oriented and we don't have a mental health professional (which is not an internal medicine physician) saying the patient cannot make their own decision (regardless of why), I would run it by risk management.
I'll give you an example. We had a patient that was off his rocker due to several imbalances. He had a POA, but he was technically alert and oriented. He clearly did not understand why he needed to stay, cursing, screaming, yelling, throwing things out of frustration of being told he needed to stay..all out of character for this patient. He was never going to be rational until his imbalances were corrected, but he was refusing treatment and vocalizing very loudly that he would sue everyone in the hospital if anyone touched him. Security called to try to stall him from leaving AMA. The internal medicine physician tried to do a medical temporary detention order and it was DENIED by the magistrate. They talked to the patient on the phone and the physician was told that unless it was psychosis, he was suicidal, or homicidal, there was nothing they could do to hold him there because he answered all of the magistrates questions appropriately. Refusal of treatment that may result in his death was his right to make. Adult protective services would not get involved because he was under the age of 65 and did not have a documented mental or cognitive disability. Patient went home, eventually went unresponsive several hours later, brought back to the hospital and got the treatment he needed.
That....is how far "patient makes their own decisions" goes. Situations like that are gut wrenching to watch play out.

If you read my comments you will see that my suggestion that the OP called the BON to learn their position on this situation was in regard to the OP's situation that has ALREADY TAKEN PLACE, the purpose being for the OP's own learning, and my comment that I think this is what I would do if I had been in the OP's situation was similarly intentioned. I would have described the situation to the BON exactly as the OP described it.

Yes, in real time, when the situation was taking place, calling Risk Management would likely have been the best action, assuming it would be possible to reach someone there who could help at that moment.

The OP's situation may be clear to you, but you have made some assumptions about the situation too. I personally don't believe we have enough information in the OP to really be sure what the situation is.

elkpark · Sep 23, 2017

Jory said:
Yes, I bothered "reading the rest of the thread", I figured alert and oriented didn't need a whole paragraph of explanation on what that entailed as the OP already made it clear that the patient had their faculties together on a case management forum.
Define "lacks the capacity"? Capacity and competency are not the same thing. I think it is safe to say that over half of hospitals don't have the resources for a psychiatrist to come and spot assess a patient for the individual's psychological abilities to form rational decisions, specifically the individual's ability to understand, appreciate, and manipulate information and form rational decisions.
An internal medicine physician isn't qualified to make that determination unilaterally. Patient doesn't have the capacity...according to what criteria? That is where you'll run into the problem. It is very clear from the OP that the physician was using the POA as a way to sidestep the patient in order to make his life easier. In our hospital if a patient is oriented and there is a conflict in a course of treatment between the patient and POA we get social services involved and they provide direction. If a psychiatrist needs to be involved, they can get one in short order, same day if it's a pressing matter. If you do anything less than follow those steps you are setting yourself up for liability when the patient recovers and finds out what happened.
What you are suggesting is almost an intelligence test for medical decisions.

By using a directed clinical interview or a formal capacity assessment tool, primary care physicians are able to perform these evaluations in most cases.

Can the Patient Decide? Evaluating Patient Capacity in Practice - American Family Physician

Hospitalists frequently encounter situations in which a patient's capacity is called into question; in most cases, this is a determination a hospitalist can make independent of consultants.

How Do I Determine if My Patient has Decision-Making Capacity? | The Hospitalist

Any physician who is aware of the relevant criteria should be able to assess a patient's competence. Indeed, treating physicians may have the advantage of greater familiarity with the patient and with available treatment options. Psychiatric consultation may be helpful in particularly complex cases or when mental illness is present.

Assessment of Patients' Competence to Consent to Treatment

In medicine, the attending physician is often the one who determines whether a patient is able make decisions regarding his/her medical care. Sometimes the courts may be involved, but usually this is too time-consuming and unnecessary. Psychiatrists may be consulted as they have extensive training in dealing with mentally impaired patients and in talking with patients; however, the attending physician is ultimately responsible for determining whether the patient has decision-making capacity.

For adult patients, most routine decisions about Decision Making Capacity (DMC) can be made by any fully-trained physician. Psychiatrists, ethicists, and/or the courts are only needed in problematic cases. Ideally, providers should assess DMC any time they engage patients in discussion about a treatment, not just when a patient disagrees with the treatment plan.

The literature and larger medical community disagree with you. Evaluating capacity to make medical decisions is a medical decision generally, not a psychiatric decision, and the individual does not need to be evaluated by a psychiatrist unless there are special circumstances. I work on the psychiatric consultation & liaison service of a large academic medical center, and the primary teams make most of the decisions about capacity on their own without any help from us. We encourage them to do so, and remind people frequently that they do not need psychiatry to weigh in on these decisions in most cases. They consult us for formal capacity evaluations when they feel it is too much of a "grey area" or too complex a situation for them to feel comfortable making the decision themselves. But it's not required.