Portal de Periódicos da CAPES

Discharging Patients Against Medical Advice

2005; Lippincott Williams & Wilkins; Volume: 27; Issue: 8 Linguagem: Inglês

10.1097/00132981-200508000-00037

1552-3624

James R. Roberts,

Medical Malpractice and Liability Issues

FigureLearning Objectives: After reading this article, the physician should be able to: Identify those psychiatric patients at risk for AMA discharge. Describe the clinical and medical-legal risks of AMA discharge. Explain the strategies to decrease the number of AMA discharges. Emergency physicians have enough to worry about when it comes to diagnosing and treating ED patients. But we have all been in the situation where, after spending considerable time, effort, and resources, a patient decides he really does not want to take our advice and decides to leave the hospital. This is a frustrating dilemma, one that is fraught with a plethora of potential and real complications for the patient and physician. In the busy ED, and after extending tremendous effort on the patient's behalf, it is only human nature for the physician and nursing staff to be frustrated and simply comply with the patient's wishes. We all try to discuss the issues and dangers of leaving against medical advice rationally, but once a patient makes up his mind that he is going to leave, it may be difficult to dissuade him from this poor decision. A normal reaction from an overworked and frustrated medical staff is simply to ask the patient to sign a form, and allow him to fend for himself, branding him as either ignorant or ungrateful. We all have certain tricks, negotiating tactics, and bargaining chips to play, but in the end it's difficult to change the patient's mindset. Although a “good riddance” reaction may seemingly settle the issue, things are much more complicated than they initially seem. This month's column continues a series of discussions on patients who want to leave the ED against medical advice (AMA). I have discussed the value (essentially, lack of value) of the standard one-size-fits-all AMA form, and what happens to patients after they leave. Although there is no agreed-upon standard of care for AMA discharge, prior columns have suggested strategies to keep patients from being their own worst enemies, and how to protect the physician against the omnipresent legal ramifications. Contrary to popular belief, the standard AMA form does not totally protect the hospital or physician when there is a bad outcome. It's difficult for the family or public to believe that something more could not have been done to derail the irrational behavior of someone who was obviously ill or in need of hospitalization or treatment. Many patients who leave AMA have serious problems and have a bad outcome; unfortunately, merely having them sign a piece of paper doesn't protects them or the emergency physician. The plaintiff's lawyer knows all too well how to ask this difficult question in front of a sympathetic jury: “Isn't it true, doctor, you allowed him to sign his life away?” Try answering that question in a court of law. Previous columns have discussed patient subgroups at high risk for leaving AMA. These included HIV-positive patients, those with drug or alcohol problems, those without insurance, patients from a lower economic status, and, in particular, psychiatric patients. Patients' Rights and Psychiatrists' Duties: Discharging Patients Against Medical Advice, Gerbasi JB, Simon RI, Harvard Rev Psychiatry, 2003;11(6):333 Even though it is from a psychiatric journal and deals primarily with a psychiatrist's problems with patients leaving AMA from an inpatient service, this article is of great interest to emergency physicians. Even a superficial reading immediately convinced me that these issues are very pertinent to ED practice. It is certainly no secret that voluntary psychiatric inpatients are discharged AMA at a relatively high rate compared with the general medical/surgical population. Studies reveal that between six percent and 35 percent of psychiatric patients who initially have been voluntarily admitted to the hospital will subsequently leave against medical advice. Such patients often have medical problems in addition to psychiatric problems, precipitating serious dilemmas for the psychiatrist. In general, patients who leave AMA are more anxious, hostile, and aggressive than their counterparts who remain in the hospital until they are voluntarily discharged. In addition, psychiatric patients are motivated to leave the hospital by other issues, including mistrust, denial, fear, paranoia, and irrational dissatisfaction with their treatment. And with psychiatric patients, universal financial issues can be even more problematic.Table: Risk Factors for an Untoward Outcome* in the Psychiatric Patient Who Leaves AMAThe authors begin their discussion with the case of a 32-year-old man admitted to a psychiatric unit because of a drug overdose. The managed care organization handling his insurance denied further benefits after a few days because they concluded that hospitalization was no longer necessary for medical or psychiatric reasons. The patient, however, still had psychiatric issues, and he was not ready for discharge according to a consensus of the psychiatric staff. When the hospital business office informed the patient that he would now be responsible for paying his hospital bills, he demanded to leave. This brings up a common conundrum when a mentally ill patient demands to leave the hospital against medical advice and it is not in his best interest to do so. There is often insurmountable divergence between the patient's rights to privacy and autonomy, and the psychiatrist's (or any other physician's) duty to treat. All AMA patients are at risk for their own well-being, but with the case of psychiatric discharges, there also may be risks to other people. Lengths of stay that are supported by many insurance companies do not include the many weeks of therapy required to render acutely psychotic patients able to be discharged and fend for themselves. Setting up outpatient support systems can take weeks. While the initial admission may have been voluntary or involuntary for a limited time because of involuntary commitment laws, it's much more difficult to keep patients in the hospital for prolonged periods of time if they do not agree with such a medical decision. The controlled environment and structure of a hospital setting is much more important to psychiatric patients than it might be for patients with pneumonia, HIV, or drug abuse. Outpatient services and support for the psychiatric patient are difficult to orchestrate effectively, impossible if the patient is not motivated or cooperative. An additional problem with psychiatric discharges is that often decisions are made quickly or spur of the moment, and without rational thought on the patient's part. The situation does not lend itself to long-term planning or meetings to assess the patient's capability to appreciate the potential complications should he leave. In essence, the decision is made precipitously, and there is little that the hospital can do on such short notice if the patient was previously a willing admission or the involuntary commitment time has expired. Patients' Rights Voluntary admissions comprise approximately three-quarters of the 1.6 million admissions to psychiatric facilities in this country. The voluntary admission procedure is most desirable, and commonly used in many hospitals, even though the admission is not always truly voluntary. There are many practical and logistical external pressures placed on psychiatric patients, coming from numerous sources such as family, police, lack of shelter or personal resources, and the winter weather and from various other entities that preclude the patient the absolute right to leave whenever he requests. The test for an involuntary admission usually has to meet relatively standard requirements: the patient must be a danger to himself or others or is unable to care for himself. This is often a very gray and enigmatic area, subject to much physician interpretation and patient manipulation, presenting a very difficult decision indeed for all involved. Even when the involuntary commitment criteria are clear cut, the length of this forced hospitalization is usually limited (72–120 hours) without some sort of complicated and time-consuming judicial review. Few hospitals have the time or ability to obtain or enforce prolonged involuntary admissions in a complex overburdened legal system. Often the good intentions of the physicians are thwarted when the initially psychotic or dangerous patient appears to have seen the error of his ways, and is no longer an obvious threat. Because extended involuntary commitment requires that a physician provide formal and detailed documentation about the actual involuntary commitment criteria and almost always a court appearance, it's easy to rationalize and move on to the more pressing case of yet another psychiatric patient in the ED. The neophyte clinician might assume that there is an unstated belief or legal consensus that a mentally ill patient cannot be competent to give informed consent for his care simply because he has a psychiatric diagnosis. This is clearly not true. Judicial law considers patients competent until proven otherwise. This is true even of the schizophrenic or bipolar patient who was found wandering around the subway, talking to himself or to an imaginary person. In the eyes of the law, all adults are presumed competent until proven otherwise, and the absence of proof or documentation of incompetence can be problematic. Many psychiatric patients do not acknowledge their problems, and it's easy for the family also to be in denial. Many family members do not want to sign commitment papers because of the social stigma of this moniker. Once in the system, the psychiatric patient often quickly learns how to behave to appear competent enough to leave. Certainly a person who voluntarily seeks admission to the hospital is usually assumed to possess the mental capacity to understand the nature and implications of such a decision, and would be capable of leaving at will and understanding the risks of doing so. Essentially, a voluntarily admitted patient “must be mentally competent,” or he would not have opted for admission in the first place. The vagaries of the law and the complicated issues involved have given rise to an overall concept that encourages voluntary admission in hopes of facilitating treatment. Even if patients meet involuntary hospitalization criteria, many physicians prefer to attempt to make the admission formally a voluntary designation because it involves less stereotyping of the patient and certainly less paperwork and personnel effort. Also, a voluntary psychiatric admission is less coercive and often avoids an adversarial relationship between the doctor and the patient. A voluntary admission allows the patient to acknowledge a desire for help, and increases patient involvement and personal responsibility for his disease. Essentially, the patient has bought into the treatment plan. A voluntary admission respects individual autonomy to a greater extent, and it is clearly the best scenario. The Catch 22 is that once patients are designated voluntary, you must allow them to leave if they want to.Table: Involuntary Commitment Criteria: The View of the CourtsAMA Discharges Current law has great concern for protecting patients' rights, and psychiatric patients are included in this mandate. When one tries to balance mental health law versus clinical care, the physician's duty often competes with the patient's right to refuse such care. It is certainly also a mandate and an agreed-upon standard that psychiatrists have a duty to provide competent patient care. From a psychiatric standpoint, the clinician must first assess whether the patient is a candidate for involuntary commitment, and then the physician must inform the patient, similar to procedures and protocols for patients on the medical or surgical service, of any consequences of AMA discharge. The clinician must assess and document that the patient is able to understand that information. This may be readily accomplished on a medical service, but in a psychiatric milieu, it can be quite difficult. Involuntary Commitment When all is said and done, the bottom line for AMA requests from psychiatric patients boils down to two options: release the patient voluntarily or precede with involuntary commitment procedures. The general test of involuntary hospitalization requires that there is a presence of mental illness, and the patient is either a danger to himself or others or is unable to care for himself. Many definitions are borderline and open to disagreement. Often these decisions have to be made with minimal clinical data and under a very specific timeframe. In general, the authors believe that effective clinical risk management not only facilitates good care but also limits liability. The cornerstone of concern is an assessment for violence. Most state courts provide immunity to clinicians who, after a properly documented evaluation, decide to hold a patient against his will as long as they have demonstrated that the patient is a danger or harm or unable to care for himself. These authors believe that it is best to assume that the risk of being sued for false imprisonment is minimal. Certainly that risk of litigation is much less than the risk assumed when a safe discharge is questionable. Malpractice suits that allege negligence because a patient is prematurely released and subsequently harms himself or others are common, while it is extremely uncommon for patients to sue for a false imprisonment. The other caveat is that it is the duty of a physician to inform a third party that his patient has voiced intent of harm. A number of risk factors have been identified that should make the clinician more likely to opt for involuntary hospitalization. These include a recent discharge, or multiple discharges, from a psychiatric hospital, substance abuse, a recent significant personal loss for the patient, panic attacks, acute anxiety, and insomnia. Some of these issues, like anxiety and insomnia, can be treated as outpatients. Their presence does not necessarily mandate hospitalization, but are merely risk factors for problems following an AMA discharge. Some of the inevitable problems with AMA discharges can be anticipated. In the inpatient setting, contingency plans can be developed proactively before the patient abruptly decides to leave when he is not being involuntarily held. Involving a colleague not directly involved in a patient's care also can help provide a new perspective and advice. Finally, if a patient does leave the hospital AMA, it may be incumbent on the psychiatrist to consider informing family members or significant others about the patient's AMA discharge. A real threat of violence should preempt concern about maintaining patient confidentiality or preserving patients' right to participate in medical decision-making. The American Psychiatric Association's Principles of Medical Ethics state that it is permissible to reveal confidential information if it is a psychiatrist's clinical judgment that there is a significant risk of danger to another person. Tarasoff Ruling All physicians should be familiar with the Tarasoff ruling. This decision found that if an outpatient possesses or explicitly voices a significant risk of harm to a third party, it is the duty of the knowledgeable physician to warn that individual. This duty can be first satisfied by involuntary hospitalization. It is important to note that an AMA discharge does not negate the clinician's obligation to protect third parties. For more than 100 years, the American legal system has supported the concept that every adult of sound mind has the right to determine what shall be done with his own body. This means that competent patients have the right to refuse treatment, even when the treatment is clearly in the patient's best interest, even life-saving. Even psychiatric patients, if they are deemed to be competent, have a right to refuse treatment, including antipsychotic medications and hospitalization. Even if the psychiatrist thinks that a patient should take antipsychotic drugs, he cannot be forced to do so if he is truly competent. Acceptance or refusal of treatment is predicated on informed consent in the competent patient. The general rule of competency is that the patient possesses a degree of mental soundness necessary to make decisions about specific issues. Mental incapacity is defined as a functional deficit that is sufficiently great that the person cannot meet the demands of the specific decision-making situation, and cannot understand potential consequences of the decision. The authors unequivocally state that a signature on an AMA form by itself does not mean that the decision was an informed one. Some would argue that an even higher degree of mental capacity should be required when a psychiatric patient is making a decision that is considered unreasonable or dangerous by the clinician. These issues all challenge the psychiatrist's knowledge and opinion about the patient's best medical interest, while also trying to balance the patient's right to privacy and autonomy. A patient with major recurrent depression or psychosis who is not compliant with treatment and who has a remote history of suicide should be held to a more stringent standard for competence than the patient refusing admission for chest pain. These authors state that it is their experience that the most effective intervention to prevent an AMA discharge of a psychiatric patient is to mobilize the resources of the patient's family. Often a family member may be able to encourage the patient to continue with hospitalization when the physician has failed. Although a follow-up plan should be in place for patients who leave AMA and are deemed competent to make that decision, many patients are uncooperative and not interested in either following up or working with the clinical staff to develop an after-care plan.Table: Unsolved Dilemmas Involved with Treating Psychiatric PatientsMalpractice Liability The authors are careful to state that discharging a patient against medical advice may confer some sort of protection to the physician, but certainly it is not a free pass or an easy road to legal immunity. The authors discuss case law where an AMA discharge of a psychiatric patient resulted in legal action. In general, court rulings hinge on whether the doctor had a duty to commit the patient to the hospital involuntarily or a duty to release him AMA. If the discharging physician can clearly show in the medical record that the patient's ability to make an informed decision was done in a competent manner, an AMA discharge is generally protective for malpractice claims. If a patient is deemed to be competent and demands to leave the hospital, physicians are obligated to inform him of the possible consequences and to allow the patient to exit. This is done under the caveat that the patient is not a clear danger to himself or to others, nor is unable to care for himself. Courts demand that physicians fulfill their professional and legal duties to the patient. It should always be the clinical staff, and not merely a specific AMA form, that provides the patient with information concerning the potential consequences and risk of being discharged AMA. Financial Disincentives Some managed care organizations or insurance companies will limit or deny payment for psychiatric services after a certain length of time. The payor is not actually denying service; they are just stating that they will not pay for it. Because many AMA discharges are precipitated by legitimate financial concerns and insurance companies do not mandate discharge, blaming the managed care organization for failure to pay will not provide a viable defense. It is the treating physician, not the insurance company, who has the responsibility for determining if the patient's treatment and discharge from the hospital are appropriate. Because the courts have held that physicians have a duty to be patient advocates, it can be argued that it is the physician's mandate to attempt to convince the insurance company to pay for the continued hospitalization. In most cases, hospitals must continue to treat patients even if the insurance payment authorization is denied. Comment: The next time you think you are having a bad day dealing with psychiatric patients, think about this article and have some empathy for your psychiatric colleagues. Most of us merely sign the involuntary commitment form of the overdose or suicide-prone patient, and let the psychiatrist deal with it after the medical situation has been stabilized. Like many other cases in medicine, the hard part begins after the emergency department visit. The patient's rights to autonomy and self-directed care often come into direct conflict with the true need for psychiatric treatment. The physician is smack in the middle of this no-win situation. This is coupled with the concept of litigation for premature discharge, failure to warn a third party about potential violence toward him from your patient, or the overriding financial issues. The deck is clearly stacked in the psychiatric patient's favor because he is presumed competent until proven otherwise. It is not an easy task to prove incompetence on the medical record, nor to complete all the necessary steps to support a continued involuntary commitment. In the end, however, I would gladly try to defend holding a patient against his will rather than try to explain a subsequent suicide or poor outcome after I had discharged someone who in retrospect was clearly at risk. Threats of litigation for assault and false imprisonment rarely go anywhere, even if you applied restraints or sedation. Similar to the patient with chest pain who may be experiencing an MI, the psychiatric patient may be able to understand the straightforward medical risks of leaving the hospital prematurely and the benefits of continued hospitalization. A psychiatric patient's risk of harm to himself or someone else is an issue that requires even further documentation. It's easy enough to tell the patient with chest pain that he may die from his heart attack should he leave the hospital. It may be a gargantuan task to convince a psychiatric patient that he is not able to fend for himself or that hearing voices telling him to cut his wrist or jump off a bridge is just not normal. There is no easy answer to this dilemma. It is clear that psychiatric patients are prime candidates for bad outcomes should they be discharged AMA. It should be the rare case where an AMA discharge of bona fide psychiatric presentation (overdose, suicide attempt, self-harm, etc.) occurs from the ED. I don't insist on admission when bipolar patients want to leave with a cellulites, but I simply don't listen to explanations when the rescue squad brought them to my ED after a suicide attempt, no matter how contrite they become, or how manipulative or disruptive. And a little bit of Haldol or Ativan makes life easier for both of us. Paranoid schizophrenics do push people in front of subways after God tells them to do so. If that patient was in your ED last night for an evaluation, you should make sure that your efforts and charting were squeaky clean, and that the ED record, when read in court in front of the grieving relatives, demonstrates a careful, prudent, and conscientious ED evaluation. When in doubt, opt for involuntary commitment. Reader Feedback: Readers are invited to share their experiences with patients who have been discharged AMA and who had a bad outcome, any personal medical-legal repercussions from a bad outcome, and strategies used to avoid AMA discharges. Pertinent responses will be published in a future issue. Please send comments to Dr. Roberts at [email protected]. Sorting out the length of stay, ensuring reimbursement, garnering family resources, and arranging outpatient follow-up is the job of a psychiatrist. Fortunately, emergency physicians can generally punt on these issues, and lay it on our psychiatric colleagues. Thank God for psych crisis and for those who staff it daily. There is no magic way for anyone to predict who will commit suicide, and the patient who really wants to kill himself will succeed at some point. Bipolar patients are at greatest risk of successful suicide, so be careful of that diagnosis. The take-home messages from this column are clear. First, your standard AMA form probably does not have enough information to show that a psychiatric patient is competent enough to make a decision to leave the hospital against medical advice. That's difficult enough to do with a straightforward medical problem. Psychiatric patients are held to a higher standard of competence in my mind, and must be able to understand the risks/benefits and consequences of their actions. Unfortunately, should something happen to him when he is discharged, the obvious answer is “He was a psychiatric patient. How could he understand or be competent to make such an irrational or bad decision?” It almost as though you are guilty until proven innocent as a physician. Clearly, psychiatric patients are competent until proven incompetent. Enlisting family members, cajoling, offering food, giving anti-anxiety medications, providing treatment for drug withdrawal, and offering a variety of creature comforts only go so far with a psychiatric patient. Psychiatric patients who threaten suicide, particularly with a plan and a firm attempt, are often successful when they are discharged, but they are not discharged on my watch. The general public does not believe that something more could not have been done to save this poor psychiatric patient from his mental anguish and subsequent death. The AMA form that is meticulously crafted to address the nuances of the psychiatric patient will certainly help the emergency physician. I wholeheartedly agree with the authors of this paper: It is easier to defend an involuntary hospitalization than it is to defend an AMA discharge of psychiatric patient who subsequently hurts himself or someone else, or committed suicide when all the red flags were raised by even the triage nurse. These patients are very difficult to deal with, but that's life in the big city; it comes with the paycheck. Finally, all physicians should be cognizant of the Tarasoff statute. This is a law in most states but not all. I urge all EPs to Google this important but complicated issue; it's far too complicated for more than a brief summary here. The intent of the 1976 statue is to protect potential victims from harm with the implied principle that the safety of society outweighs the benefits of maintaining patient confidentiality. Usually it applies to psychotherapy, but it might come up in the ED. Essentially, it deals with a 1969 California case where a patient named Prosenjit Poddar told his psychiatrist that he was going to kill a young woman, Tatiana Tarasoff, who had spurned his affection, but the psychiatrist and police were unable to stop her killing, and after botched attempts to commit Mr. Poddar. If you hear a psychiatric patient specifically state that he is going to kill a police officer, his neighbor, or his spouse when he leaves, it is your duty to inform that individual that such a threat was made if involuntary commitment is not pursued. HIPAA rules do not apply, but this is a complicated issue. The act of informing a third party of potential danger is one that is unfamiliar to most EPs; it's an important issue that has escaped most of us so far. If a patient is violent or expressing harm to someone else, keep him in the hospital by whatever means possible, and seek help and advice. An AMA discharge does not negate the physician's obligation to protect third parties. If an AMA discharge is planned, it's always best to always tell interested parties such as relatives because they usually assume that you will hold their psychotic relative “for their own good.” This is yet another example where physicians can't win.