Alcohol and drug affected patients – a medico-legal perspective

Katherine LorenzChief Legal Officer

&Tammy O’Connor

Senior Corporate CounselMonash Health

• The intoxicated/ drug affected patient that

refuses treatment.

• Frequent ED presentation.

• What can we do?

Some “objectors”

• The intoxicated or drug affected patient who regains consciousness and

starts walking out of hospital without examination;

• The unconscious patient who, brought to the emergency department by

ambulance, awakes and attempts to leave without further assessment or

treatment;

• The drowsy patient with a head injury who refuses to wait for

investigations or monitoring;

• The patient who abruptly refuses life saving treatment and begins to exit

the hospital without explanation in circumstances that would suggest

they may lack capacity.

For each “objector”• No opportunity yet to assess

• There is information to suggest that capacity may be

impaired or that a mental illness may be present;

• The patient is actively attempting to leave hospital;

and

• There is reason to believe that leaving without

treatment may result in death or significant harm.

Common Presentation

Competence

• Legal presumption for those over 18 years

• Can clearly communicate decisions

• Understands the information about his condition

• Appreciates the consequences of her choices

(especially the likelihood of death/ disability)

• And can weigh the relative risks and benefits of the

options

Determining Competence

• Competence can vary over time

• A mental illness does not necessarily imply a lack of capacity to

consent

• Competence is specific and/or can vary with specific tasks

• The patient’s decision need not be one that others would regard

as reasonable, but it must involve a process of reasoning

• Improvements in the patient’s level of comfort may improve

competence – time to think; allowing support (NOK); adjusting

environment (quiet room, non-threatening atmosphere);

managing reversible symptoms (pain)

CASE #1

• A 35yo man is brought to the ED by the ambulance.

• He was at party and was involved in a fight. He was punched in the face, fell over

10 steps and hit his head on the floor. He sustained LOC for approximately 60

seconds. He cannot recall the actual event or getting to the party.

• At the party he consumed a few beers, and took some speed and a pill his friend

gave him.

• He has no PMHx, no prescription medications, non smoker, consumes alcohol on

the weekends and occasionally takes recreational drugs. His favorites are ecstasy,

speed and occasionally ice.

• HR 100 BP 150/80 O2sats 99%RA T 36.7 RR 16 GCS 14-15 ( Not oriented to

place and time initially)

• You are looking after this patient. As soon as he arrives he gets off the bed and

states that he just had a big night, he feels fine and he is going to go home.

Is he competent to makethis decision?

YES if he demonstrates thathe can:

• maintain and communicate a choice

• understand the relevant information

• appreciate the situation and its consequences

• manipulate the information in a rational

fashion

Useful questions to ask:

• What is your present physical condition?

• What is the treatment being recommended for you?

• What do you and the doctor think will happen to you if you

decide to accept treatment?

• What do you and your doctor think will happen to you if you

do not accept the recommended treatment?

• What are the alternatives available (including no treatment)

and what are the possible consequences of accepting each?

• What constitutes “reasonable measures”

when attempting to treat this patient and

prevent him from leaving prior to treatment?

• BUT … his decision is irrational!!

• Can I keep him now??

• Can I involve his relatives if he says he does

not want me to?

• Can I call the police if he leaves hospital?

• Can I keep him against his will (chemically /

mechanically restrain)?

• What about my duty of care?

• If he leaves without treatment and he suffers

disability or dies from his injuries or sustains

further injuries secondary to his intoxication,

is the treating doctor / hospital liable?

Case #2

• A 35yo man is brought to ED by ambulance.

• He was at party and was involved in a fight. He was punched in the face, fell over 10 steps and hit his head on the floor. He sustained LOC for approximately 60 seconds. He cannot recall the actual event or getting to the party.

• He repeatedly asks where he is and how he got here. He appears agitated.

• At the party he consumed a few beers, and took some speed and a pill his friend gave him.

• He has no PMHx, no prescription medications, non smoker, consumes alcohol on the weekends and occasionally takes recreational drugs. His favorites are ecstasy, speed and occasionally ice.

• HR 115 BP 150/80 O2sats 99%RA T 36.7 RR 20 GCS 14 (Not oriented to place and time)

• You are looking after this patient. As soon as he arrives he gets off the bed and he states that he just had a big night, he feels fine and he is going to go home.

• He is unsteady on his feet and has to hold onto the furniture to walk. When approached by ED staff he becomes verbally aggressive and at one occasion tries to punch (unsuccessfully) one of the nurses.

• A code grey is called. Patient responds only transiently to verbal de-escalation but he quickly returns to being agitated and attempting to leave the ED.

Is he competent to makethis decision?

Clinical decision made : NOT competent

• Can you keep him against his will (chemically /

mechanically restrain)?

What if we decide not to restrain him?

• If he falls over in the department and sustains

an injury

• If he leaves without treatment and he suffers

disability or dies from his injuries or sustains

further injuries secondary to his intoxication

• Is the treating doctor / hospital liable?

Key messages

• Presume competence for those over 18

• Patients have the right to make bad decisions

• Alcohol or drug affected patients are not necessarily

incompetent

• You must assess capacity

• You cannot restrain a competent patient

• You must inform patients of the risks of refusing treatment

• Keep complete and clear records