In most settings/jurisdictions, the consulting psychiatrist can provide information and opinion about the capacity to make medical decisions, but, in general, it is up to the physician proposing the medical intervention (i.e. the Primary Team) to make the decision about whether the patient is competent to make the decision at hand.
Some of the attachments below may be helpful.
Some things to remember:
- Disagreement with the physician (alone) is never proof of incapacity to make medical decisions.
- "Competence" is a legal decision, sometimes regarding one single medical decision, sometimes more inclusive, sometimes all-inclusive. Be SURE you know the limits of any legal incompetence decision and never be afraid to ask the hospital/agency risk management lawyer for clarification - on a daily basis if needed. A physician generally does NOT have the expertise to navigate these tricky waters.
- When in doubt, find an appropriate surrogate decision-maker. Courts take a dim view of physicians who seem to jump at the chance to make the decision for the patient. DOCUMENT your efforts to find a surrogate. Never hesitate to wake up your risk mgt lawyer for advice about your legal standing - a 5 min conversation can save them months of legal battles. Few medical decisions outside the trauma room cannot wait 5 min to at least TRY to find a surrogate decision-maker
- One of the best legal defenses is to provide excellent medical care at the level of the community standard - and DOCUMENT your reasoning (YOUR decision-making process) and anyone with whom you consulted about what would be the best care. It's not that you're trying to spread the blame; you are trying to show that you considered that there might be alternatives and you sought out others' thoughts on the matter.
- A Psych Hold ("5150" in California) does NOT constitute incapacity to make any medical decision, including psych meds (in most cases)
- There is no "2 doctor rule" giving doctors the ability to override the pt's decision if 2 doctors agree it is in the pt's best interest.
- In most states, there are separate rules about providing psychiatric treatments against pt's will as compared to "medical" interventions.
- Capacity is not "all or none." A given pt may have the capacity to decide whether to accept narcotic pain meds but may NOT have capacity to decide whether to do lumpectomy vs mastectomy.
- The setting does not change the capacity rules. It is NOT true that "you can force-feed pt's via tube on the medicine floor but not on psychiatry," or that "a patient can only be held against his will on the psych floor, not on the med/surg ward," or that "the rules about restraint/seclusion only apply to patients on the psych ward."
