Patients refusing care: Weigh risk vs. autonomy
by Jay C. Weaver, JD, EMT-P, Attorney, Private Practice; Paramedic, Boston Public Health Commission, Boston, MA
For emergency department (ED) personnel, the most troublesome patients often are those who don't want treatment at all.
Two percent of all people who seek care from an ED leave before optimal care can be rendered. 1 A small number refuse care from the beginning, having been brought to the hospital against their will by law enforcement personnel or prehospital care providers. Regardless of the circumstances under which the patient arrives, a decision to leave the ED against medical advice (AMA) places ED personnel in an awkward predicament, forcing nurses and physicians to choose one of two options: They can allow the patient to leave, or they can restrain him and force him to accept treatment. Like most decisions made in the ED, this one must be made instantly.
Choosing unwisely can have profound legal implications. A physician or nurse who allows a patient to leave prematurely invites a claim of medical malpractice. Conversely, ED personnel who force unwanted treatment on a reluctant patient expose themselves to claims of assault, battery, and even wrongful imprisonment. 2 Because an employer can be held liable for the on-duty actions of its employees, the hospital may be named as a defendant also.
Americans have long enjoyed a right to accept or reject medical care as they see fit. This right flows primarily from the common law, but the Supreme Court has found a constitutional basis for it as well. A handful of jurisdictions, such as Delaware, have granted a statutory right of refusal to their residents. Physicians and nurses cannot force treatment on a patient simply because they believe the patient will benefit from such care. This holds true even when the patient's life hangs in the balance. As the Massachusetts Supreme Judicial Court said in Harnish v. Children's Hospital: "Every competent adult has a right to forego treatment, or even cure, if it entails what for him are intolerable consequences or risks, however unwise his sense of values may be in the eyes of the medical profession." 3
Not all patients have the right to refuse treatment, of course. Minors generally cannot refuse lifesaving care. Nor can individuals who lack the capacity to make rational decisions, or who pose a threat to themselves or others because of mental illness. The duty of ED personnel to provide treatment in the presence of a court order or judicial determination of incompetence is clear. Things become considerably more complex when a normally healthy patient simply decides to leave.
Patient consent and the 'informed refusal'
In general, treatment cannot begin until the patient has consented to it. To be valid, the consent must be informed … that is, the patient must possess sufficient knowledge about the nature of his condition, the risks and benefits of the proposed treatment, and the risks and benefits of available alternatives to permit a reasoned decision. 4
Patients cannot expect their physicians to disclose everything they know about the treatment they intend to provide. Not only would most patients have difficulty comprehending such information, but the disclosure process itself would be too cumbersome to permit timely care. Today, some jurisdictions require practitioners to make "those disclosures which a reasonable medical practitioner would make under the same or similar circumstances." 5 Others apply a patient-based standard, requiring the disclosure of facts that a reasonable patient would deem significant in deciding whether to accept the proposed treatment. 6