Legal Aspects of Hospital Psychiatry
Harvey Dondershine, MD, JD
See www.leginfo.ca.gov/calaw.html for text of all California statutes.
Hospital psychiatry is a complex business! You have to form quick alliances with acute patients of questionable competency. Time is short. Problems are long. Add to that, the medley of players, observers; and all your divided loyalties – to your patient, his or her family, the ward, your supervisor, the hospital, various public agencies, and an occasional lawyer or judge.
Emergency Psychiatry
ER
In the emergency room, the essentials issues are: Is the patient psychiatrically ill? Does the patient need to be hospitalized? Can the patient be hospitalized involuntarily? Can the patient be maintained safely in the community until the outpatient follow-up appointment? Do I have a reporting duty? Always document any decision to use a lesser intervention more thoroughly than a decision to use a greater intervention. If anything goes wrong, you will need this extra documentation. However, courts recognize the constraints of the emergency examination, requiring only reasonable efforts under the circumstances. Courts also recognize decisions cannot be put off until all the information is in. On a more personal level, you should watch out for borderline patients who trigger your anger and try to remember the 6’oclock news rule.
Ward
Emergencies occur on the wards as well. The primary care provider can always medicate in an emergency – even without consent – and you don’t have to wait until the last possible moment either. You also have a duty to protect uninvolved patients from harm and the ability of the ward to function with reasonable effectiveness. You cannot continue psychiatric medication beyond the emergent circumstances without resorting to LPS action, including Riese and Gallinot hearings. For what to do if medical treatment is required and refused, whether on Psychiatry or Medicine, see below.
Involuntary Treatment
Civil commitment is state action and it deprives a person of his liberty. Therefore, it is limited by statute as well as by the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the US Constitution. A person cannot be detained or forcibly treated for the mere status of being mentally ill. A mentally ill person can be detained if she poses a threat of serious, imminent harm to herself or others or is "gravely disability." The power of civil commitment emerges from two societal doctrines: parens patriae and police power. Government is deemed to be the "parent of last resort" (parens patriae) with the responsibility to protect dependent "infants and lunatics." It is also given the power to act against those who pose a threat of harm to the community at large (police power).
The Supreme Court of Massachusetts said in 1845 (Matter of Josiah Oaks), said "the right to restrain an insane person of his liberty is found in that great law of humanity, which makes it necessary to confine those ... dangerous to themselves or others...and the necessity which creates the law, creates the limitation of the law...restraint can continue as long as the necessity continues."
As you know, LPS allows the detention of persons with mental disorders who pose an imminent danger to themselves or others, or who are gravely disabled. However, “mental disorder” is not actually defined in the statute. Its contours may at times appear to expand or contract. Conservatorship of Chambers, 71 Cal.App.3d 277 (1977), chose to define limit it to disorders listed by the American Psychiatric Association in the current edition of the Diagnostic and Statistical Manual of Disorders. But, DSM-IV broadly defined mental disorder, independent of any specific list, as any clinically significant behavioral or psychological syndrome characterized by the presence of distressing symptoms, functional impairment, or increased risk of suffering death, pain, disability, or loss of freedom and are assumed to result from some behavioral, psychological, or biological dysfunction within the individual.
Involuntary Discharge
Involuntary discharge is confounded by issues of consent, competency, double agency, and counter-transference. Any involuntary discharge should be well considered to avoid a later claim of abandonment; especially if the patient is undeniably incompetent.. Involuntary discharge should never be punitive or following a narcissistic injury to provider. Due process safeguards should be made available to the patient. Reasons for such discharge include:
1. Clinically indicated to prevent regression and dependency
2. No insurance
3. Bad act that is not a product of illness which burdens the treatment of other patients
4. Following competent and informed treatment refusal
Right to Treatment
The right to treatment doctrine first appeared in the 1960's. It was thought to be a quid pro quo for commitment's deprivation of liberty. It started as a District of Columbia statute affirmed in Rouse v. Cameron (1966). In 1971, an Alabama court in Wyatt v. Stickney found a broad right to treatment in the 14th Amendment as well. However, the right treatment was limited in O'Connor v. Donaldson (Florida, 1975) when the Court said the non-dangerous mentally ill who could survive outside of the hospital could not be committed without receiving treatment. The right to treatment was limited much further in Youngberg v. Romeo (US Supreme Court, 1982). The Court held that the involuntarily hospitalized patient was only entitled to that amount of treatment required to assure his freedom from unnecessary restraint and preventable assault inside the institution. Court surveillance of this ruling extended only to whether a specific decision was rendered by a qualified professional "using judgment." The right to more than this now exists primarily by statute and is enforced mostly by suits for malpractice.
Right to Refuse Treatment
The right to refuse treatment is a fundamentally aspect of individual autonomy. It lies at the heart of ethical medicine. A patient who can consent to treatment can also withhold that consent. California law presumes competence for all adults but this presumption is rebutable at law and can be overridden in an emergency. See below.
Right to Least Restrictive Alternative
This right was enunciated in Lake v. Cameron (1966) and in Lessard v. Schmidt (1972). The least restrictive alternative is not the most beneficial alternative. Hospitalization is always considered the most restrictive alternative.
Informed Consent
The right to consent, as an attribute of personal autonomy, is fundamental to ethical medicine. Its components are: information disclosure, voluntariness, and competency. Breach of informed consent may be actionable as battery (an unconsented to touching, not insurable) or as malpractice (professional negligence, insurable).
Competency is a legal concept that reflects societal guidelines concerning when a choice will be recognized at law. In general, however, competency is considered to be a rebutable presumption. Various tests of competency have evolved: 1) evidence choice, 2) reasonable choice, 3) choice is product of rational process, 4) ability to understand disclosed information, and 5) actual understanding and appreciation of information in context.
Schloendorf vs. New York Hospital (1914) said the individual has fundamental right to control what is done to his/her body. The Nuremberg Court (1946) said patient consent to invade that right of personal autonomy was required. Salgo vs. Leland Stanford Junior University (1957) declared such consent required provision of information. How much information? Natanson vs. Kline (1960) said it was that amount of information a reasonable doctor would provide. Cobbs vs. Grant (1972) said it was the information a reasonable patient would need to make an informed choice.
Competency to Refuse Antipsychotic Medication
Does the patient accept the diagnosis? Does he know the risks and benefits of treatment, the alternatives, and no treatment? Is the refusal based on rational thought or a mental status defect?
W&I §5332:
(a) Antipsychotic medication, as defined in subdivision (l) of Section 5008, may be administered to any person subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15, if that person does not refuse that medication following disclosure of the right to refuse medication as well as information required to be given to persons pursuant to subdivision (c) of Section 5152 and subdivision (b) of Section 5213.
(b) If any person subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15, and for whom antipsychotic medication has been prescribed, orally refuses or gives other indication of refusal of treatment with that medication, the medication shall be administered only when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that person's incapacity to refuse the treatment, in a hearing held for that purpose.
(e) In the case of an emergency, as defined in subdivision (m) of Section 5008, a person detained pursuant to Section 5150, 5250, 5260, or 5270.15 may be treated with antipsychotic medication over his or her objection prior to a capacity hearing, but only with antipsychotic medication that is required to treat the emergency condition, which shall be provided in the manner least restrictive to the personal liberty of the patient. It is not necessary for harm to take place or become unavoidable prior to intervention.
W&I §5333:
(a) Persons subject to capacity hearings pursuant to Section 5332 shall have a right to representation by an advocate or legal counsel. "Advocate," as used in this section, means a person who is providing mandated patients' rights advocacy services pursuant to Chapter 6.2 (commencing with Section 5500), and this chapter. If theDepartment of Mental Health provides training to patients' rights advocates, that training shall include issues specific to capacity hearings.
(d) As soon after the filing of the petition for a capacity hearing is practicable, an attorney or a patients' rights advocate shall meet with the person to discuss the capacity hearing process and to assist the person in preparing for the capacity hearing and to answer questions or to otherwise assist the person, as is appropriate.
§5334 (e):
(1) The person who is the subject of the capacity hearing may appeal the determination to the superior court or the court of appeal.
(3) Nothing shall prohibit treatment from being initiated pending appeal of a determination of incapacity pursuant to this section.
(4) Nothing in this section shall be construed to preclude the right of a person to bring a writ of habeas corpus pursuant to Section 5275, subject to the provisions of this chapter.
(f) All appeals to the superior court pursuant to this section shall be subject to de novo review.
§5336: Any determination of a person's incapacity to refuse treatment with antipsychotic medication made pursuant to Section 5334 shall remain in effect only for the duration of the detention period described in Section 5150 or 5250, or both, or until capacity has been restored according to standards developed pursuant to subdivision (c) of Section 5332, or by court determination, whichever is sooner
Statutory Rights of Hospitalized Mental Patients in California
A. Rights
Psychiatric patients have all the rights guaranteed everyone by the Constitution and other laws.
1. Under California law, the following rights may never be denied (Cal. Welfare & Inst. Code § 5325.1):
2. Psychiatric facilities must also uphold the following specific rights, which can be denied only when "good cause" exists (Cal. Welfare & Inst. Code § 5325; 9 C.C.R. § 865.2):
Every patient has the right to see and receive the services of a Patients' Rights Advocate.
3. All patients have the following treatment rights:
B. Additional Rights
1. Right to Privacy and Personal Association.
2. Right to individualized treatment under the least restrictive conditions feasible - the institution should minimize interference with a patient's individual autonomy and social interaction." Foy v. Greenblott (1983).
3. Right to Cultural Competency
4. Right to Aftercare/Discharge Planning.
5. Mental health clients have a right to access services and programs which promote a satisfying life in the least restrictive environment (Cal. Welfare & Inst. Code § 5600.1).
6. Patients should be the central and deciding figure in all planning for their individual needs (Cal. Welfare & Inst. Code § 5600.2(a)).
C. Denial of Rights
Rights under Cal. Welfare & Inst. Code § 5325 may be denied only when "good cause" exists to deny these rights; however, the rights listed in Cal. Welfare & Inst. Code § 5325.1 may never be denied.(9 C.C.R. § 865.2). Good cause for the denial of a right exists when the professional person in charge or his designee has good reason to believe one or all of the following:
a. Exercise of the specific right would be injurious to the patient.
b. There is evidence that the specific right, if exercised, would seriously infringe on the rights of others
c. Institution or facility would suffer serious damage if the specific right is not denied
d. There is no less restrictive way of protecting the interest specified in a, b or c above. (9 C.C.R. § 865.2)
When a right is denied, the reason given for denying the right must have clear relationship to the right denied (9 C.C.R. § 865.2).
Rights may not be denied as a condition of admission, as part of a treatment plan, or for the convenience of staff, nor may they be treated as a privilege to be earned.
Documentation: Clients are entitled to an explanation for each denial of rights. Each denial must be noted in the patient's treatment record. The documentation must include the following:
Restoration of Rights: Once the good cause for denial of a right is no longer present, the right must be restored. The date of the restoration of the right must be documented in the chart.
Privacy
Privacy addresses the individual's right to prevent others from knowing secrets. Privacy did not exist at common law. Its modern protection started in an 1890 Harvard Law Review article by Brandies. In California, privacy is specifically protected by Article I of the State Constitution.
Confidentiality
Confidentiality is the right of the individual to control what another does with secrets she has divulged. It is a promise inherent in the psychiatrist-patient relationship. The ethical basis of confidentiality is in the Hippocratic Oath. Breach of confidentiality is recognized at common law as a fiduciary tort. It is also statutory violation (Business and Professions Code, Health Insurance Portability and Accounting Act). In many states, confidentiality 'survives" the death of the patient and can be exercised by the estate or next-of-kin. Confidentiality is not absolute. It is subject to various mandatory or permissive reporting duties.
Evidence Code §1012: A "confidential communication between patient and psychotherapist" means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship.
Evidence Code §1015: The psychotherapist who received or made a communication subject to the privilege under this article shall claim the privilege whenever she is present when the communication is sought to be disclosed.
Privilege
Privilege is the patient's right to refuse to testify and to refuse to allow others to testify about confidential communications. It is wholly statutory. It is a right owned by the patient, but it can be waived. This privilege does not apply to communications made in the presence of a third party not involved in the patient's care.
Though privilege is owned by the patient, it must be asserted by the psychiatrist when the patient is not present. The general basis of testimonial privilege is:
(1) Communication was within a relationship with an expectation of confidentiality
(2) Confidentiality is essential to that relationship
(3) Relationship is one society seeks to foster; and
(4) Harm to the relationship by disclosure is more than the benefit to the judicial process.
Exceptions to Privilege
1 Patient sues claiming psychiatric damages 6 Court-ordered competency evaluation
2 Therapist is asked to aid crime or avoid arrest 7 Patient is dead (limited)
3 Patient poses a danger to self or others 8 Patient sues doctor for malpractice
4 Doctor is being investigated for billing fraud 9 Patient already testified to communication
5 Doctor sues patient for fees (limited)
Prescribing
Requirement for Good Faith Exam: Business & Profession Code §2242: Prescribing, dispensing, or furnishing dangerous drugs as defined in Section 4022 without a good faith prior examination and medical indication therefore, constitutes unprofessional conduct.
No licensee shall be found to have committed unprofessional conduct within the meaning of this section if, at the time the drugs were prescribed, any of the following applies:
(1) The licensee was a designated physician and surgeon serving in the absence of the patient's physician and surgeon
(2) if the drugs were prescribed only as necessary to maintain the patient until the return of his or her practitioner, but in any case no longer than 72 hours.
The licensee was a designated practitioner serving in the absence of the patient's physician and surgeon, and was in possession of or had utilized the patient's records and ordered the renewal of a medically indicated prescription for an amount not exceeding the original prescription in strength or amount or for more than one refilling.
Reporting Duties
Duty to Warn & Protect
Civil Code §43.92: This is the so-called Tarasoff immunity statute. “There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in the Evidence Code in failing to warn of and protect from a patient's threatened violent behavior or failing to predict and warn of and protect from a patient's violent behavior except where the patient [Ewing vs. Goldstein said close relative same as patient”] has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.
If there is a duty to warn and protect under the limited circumstances specified, the duty shall be discharged by the psychotherapist making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency.”
Elder Abuse
W&I §15630: Any person who has assumed full or intermittent responsibility for care or custody of an elder or dependent adult, whether or not he or she receives compensation, including administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency, is a mandated reporter.
Any mandated reporter who, in his or her professional capacity, or within the scope of his or her employment, has observed or has knowledge of an incident that reasonably appears to be physical abuse, as defined in Section 15610.63 of the Welfare and Institutions Code, abandonment, abduction, isolation, financial abuse, or neglect, or is told by an elder or dependent adult that he or she has experienced behavior, including an act or omission, constituting physical abuse, as defined in Section 15610.63 of the Welfare and Institutions Code, abandonment, abduction, isolation, financial abuse, or neglect, or reasonably suspects that abuse, shall report the known or suspected instance of abuse by telephone immediately or as soon as practicably possible, and by written report sent within two working days.
A mandated reporter, who is a physician and surgeon, a registered nurse, or a psychotherapist, as defined in Section 1010 of the Evidence Code, shall not be required to report, pursuant to paragraph (1), an incident where all of the following conditions exist:
(1) The mandated reporter has been told by an elder or dependent adult that he or she has experienced behavior constituting physical abuse, as defined in W&I §15610, abandonment, abduction, isolation, financial abuse, or neglect.
(2) The mandated reporter is not aware of any independent evidence that corroborates the statement that the abuse has occurred.
(3) The elder or dependent adult has been diagnosed with a mental illness or dementia, or is the subject of a court-ordered conservatorship because of a mental illness or dementia.
(4) In the exercise of clinical judgment, the physician and surgeon, the registered nurse, or the psychotherapist, as defined in Section 1010 of the Evidence Code, reasonably believes that the abuse did not occur.
Failure to report physical abuse, abandonment, abduction, isolation, financial abuse, or neglect of an elder or dependent adult, in violation of this section, is a misdemeanor, punishable by not more than six months in the county jail, by a fine of not more than $1,000, or by both.
§15610.23: "Dependent adult" is any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose abilities have diminished because of age.
Child Abuse
Penal Code §11165.9: Whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. The mandated reporter shall make a report to the agency immediately or as soon as is practicably possible by telephone, and the mandated reporter shall prepare and send a written report thereof within 36 hours of receiving the information concerning the incident. The mandated reporter may include with the report any non privileged documentary evidence the mandated reporter possesses relating to the incident.
For the purposes of this article, "reasonable suspicion" means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. For the purpose of this article, the pregnancy of a minor does not, in and of itself, constitute a basis for a reasonable suspicion of sexual abuse.
Any mandated reporter who fails to report an incident of known or reasonably suspected child abuse or neglect as required by this section is guilty of a misdemeanor punishable by up to six months confinement in a county jail or by a fine of one thousand dollars ($1,000) or by both that imprisonment and fine. If a mandated reporter intentionally conceals his or her failure to report an incident known by the mandated reporter to be abuse or severe neglect under this section, the failure to report is a continuing offense until an agency specified in Section 11165.9 discovers the offense.
§11166.05: Any mandated reporter who has knowledge of or who reasonably suspects that a child is suffering serious emotional damage or is at a substantial risk of suffering serious emotional damage, evidenced by states of being or behavior, including, but not limited to, severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, may make a report to an agency specified in Section 11165.9.
Condition Characterized by Lapses in Consciousness
Health and Safety §103900:
(a) Every physician and surgeon shall report immediately to the local health officer in writing, the name, date of birth, and address of every patient at least 14 years of age or older whom the physician and surgeon has diagnosed as having a case of a disorder characterized by lapses of consciousness. However, if a physician and surgeon reasonably and in good faith believes that the reporting of a patient will serve the public interest, he or she may report a patient's condition even if it may not be required under the department's definition of disorders characterized by lapses of consciousness pursuant to subdivision (d).
(b) The local health officer shall report in writing to the Department of Motor Vehicles the name, age, and address, of every person reported to it as a case of a disorder characterized by lapses of consciousness.
(c) These reports shall be for the information of the Department of Motor Vehicles in enforcing the Vehicle Code, and shall be kept confidential and used solely for the purpose of determining the eligibility of any person to operate a motor vehicle on the highways of this state.
Competency to Make Medical Decisions
Incompetence is present if a mental status defect renders the individual unable to understand and knowingly and intelligently act upon consent information using rational processes. This is a determination made in the first instance by the treating doctor. A competent decision remains valid even after the patient lapses into incompetence. The law, in its simplicity, however, presumes the incompetent patient is unconscious or demented rather than impaired yet still capable of volitional acts. Though the treating physician is best positioned to make this decision, psychiatric consultation is often requested. The psychiatrist is "a second opinion." Often, the treating physician wants LPS authority to detain the patient who would otherwise leave AMA. Concern is for the patient who might be medically injured by leaving and for the physician who might be legally injured by acceptance of an "uninformed" incompetent refusal of care. However, the primary provider does not in fact need LPS cover to medically restrain. Of course, the competent patient has the right to refuse even life saving treatments - no matter how unwise it is to do so.
In an emergency, consent is presumed. An emergency exists when care is required to alleviate severe pain or when a condition, which if not immediately treated, will lead to serious disability or death - and the patient is incompetent - whether or not legally adjudicated. The emergency exception assumes the physician does not know the competent wishes of the patient and that no surrogate decision maker is availability. The emergency exception allows treatment to correct the emergency.
If a situation is not an emergency, consent must be obtained from the patient's legal representative; i.e. durable power of attorney for health care or guardian/conservator of person to whom decisional powers have been granted. If there is no legal representative, a court order is appropriate. It is the primary physician's duty to request the court order. A court order requires a probability that the condition if untreated will become life endangering or result in a serious threat to the physical or mental health of the patient. A petition with an attached declaration must be filed in Superior Court. A lawyer will be appointed to represent the patient. However, built-in procedural delays can be waived for good cause. In many cases, obtaining a court order is cumbersome, expensive, and time consuming. In some situations, the California Medical Association suggests treating doctors rely on medical custom -- so long as there is no question that the patient if competent would refuse consent. Established medical custom allows the physician to turn to close family members (in the following order): spouse or registered domestic partner, adult child, parents, adult brother/sister, and grandchildren. The treatment must be in the best interests of the patient and the substituted consent should, to the extent known, reflect the patient's wishes. The motives of the surrogate should not be suspect and surrogates of equal rank cannot be in conflict.
There will be situations involving unconscious or demented, non-protesting patients who have no surrogate decision maker where the physician, will choose to proceed with necessary treatment. Such situations pose some degree of legal risk to the physician. However, good care and better charting minimize the risk. However, if incompetence is likely to persist and there is no emergency, guardianship proceedings are indicated.
A patient with a mental disorder may or may not be incompetent. However, for this purpose, the law has not specifically defined the term "mental disorder." Legally, a patient is incompetent if unable to do the following:
(1) Respond knowingly and intelligently to questions about recommended treatment
(2) Participate in treatment decisions by means of rational thought processes
(3) Understand the basic medical treatment information with respect to that treatment
Basic medical treatment information includes: the nature and seriousness of the illness, the nature of the treatment, the probable degree and duration of any benefits and risks of any medical intervention that is being recommended by the person's health care providers, and the consequences of lack of treatment, and the nature, risks, and benefits of any reasonable alternatives.
Requests for psychiatric consultation arise when a patient is not globally incompetent (unconscious or senile) and is able to evidence a choice - usually a refusal of care - and the primary provider wants a second opinion on the competency of the refusal. LPS does not authorize medical treatment - only psychiatric treatment. Your role in these cases is to examine the patient and determine if the patient is incompetent for informed consent purposes; and, if so, whether a mental status defect is responsible for it. If a court petition under Probate Code §3208 is anticipated, your consultative note should be detailed enough to serve as the declaration that the primary provider will attach to the court petition. The primary provider, of course, is responsible for explaining the medical issues of the case. Of course, if the patient independently meets LPS criteria, more will be required.
Before examining the patient, ask the primary provider to explain to you the proposed treatment, the informed consent information, the risk to the patient should treatment be withheld, and the nature of attempts to obtain consent. Keep in mind that the scope of information given the patient who is refusing care is broader than the scope of information that must be given the consenting patient. You then examine the patient to determine: (1) did the patient make a decision; (2) was the decision based on informed consent; (3) is there a mental status defect; (4) is the mental status defect the causal link between the treatment refusal and the impaired consent. If you determine that patient is incompetent to refuse the recommended care, the next move is up to the primary care provider.
Suggested Competency Consent Questions
1 Have you decided to go along with your doctor's recommended treatment?
2 Tell me what your doctor told you about:
(a) Nature and seriousness of your condition
(b) Recommended treatment
(c) Possible benefits from this treatment
(d) Possible risks (or discomforts) of treatment
(e) Other treatments and their risks and benefits
(f) Risks and benefits of delayed or no treatment
3 Your doctor told you about risks. How likely are those risks are for you?
4 Why is doctor giving you this information? What does doctor want you to do with it?
5 What you believe is wrong with your health now?
6 Do you believe you need treatment? What will treatment likely do for you?
7 Why do you think your doctor recommended the specific treatment for you?
8 How did you reach the decision to refuse treatment?
9 What factors did you consider and how did you balance them?
§811 Mental Deficits
1. Alertness and attention, including, but not limited to, the following:
a. Level of arousal or consciousness.
b. Orientation to time, place, person, situation.
c. Ability to attend and concentrate.
2. Information processing, including, but not limited to, the following:
a. Short- and long-term memory, including immediate recall.
b. Ability to understand or communicate with others, either verbally or otherwise.
c. Recognition of familiar objects and familiar persons.
d. Ability to understand and appreciate quantities.
e. Ability to reason using abstract concepts.
f. Ability to plan, organize, and carry out actions in one's own rational self-interest.
g. Ability to reason logically.
3. Thought processes. Deficits may be demonstrated by the following:
a. Severely disorganized thinking.
b. Hallucinations.
c. Delusions.
d. Uncontrollable, repetitive, intrusive thoughts.
3. Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual's circumstances.
Probate Code §813:
(a) For purposes of a judicial determination, a person has the capacity to give informed consent to a proposed medical treatment if the person is able to do all of the following:
(1) Respond knowingly and intelligently to queries about that medical treatment.
(2) Participate in that treatment decision by means of a rational thought process.
(3) Understand all items of basic medical treatment information:
(A) The nature and seriousness of the illness, disorder, or defect that the person has.
(B) The nature of the medical treatment that is being recommended by the person's health care providers.
(C) The probable degree and duration of any benefits and risks of any medical intervention that is being recommended by the person's health care providers, and the consequences of lack of treatment.
(D) The nature, risks, and benefits of any reasonable alternatives.
(b) A person who has the capacity to give informed consent to a proposed medical treatment also has the capacity to refuse consent to that treatment.
§3204: The petition [to judicially determine medical decisional incompetence] shall state, or set forth by a medical declaration attached to the petition, all of the following known to the petitioner at the time the petition is filed:
(a) The condition of the patient's health that requires treatment.
(b) The recommended health care that is considered to be medically appropriate.
(c) The threat to the patient's condition if authorization for the recommended health care is delayed or denied by the court.
(d) The predictable or probable outcome of the recommended health care.
(e) The medically available alternatives, if any, to the recommended health care.
(f) The efforts made to obtain consent from the patient.
(g) If the petition is filed by a person on behalf of a health care institution, the name of the person to be designated to give consent to the recommended health care on behalf of the patient.
(h) The deficit or deficits in the patient's mental functions listed in subdivision (a) of Section 811 that are impaired, and an identification of a link between the deficit or deficits and the patient's inability to respond knowingly and intelligently to queries about the recommended health care or inability to participate in a decision about the recommended health care by means of a rational thought process.
(i) The names and addresses, so far as they are known to the petitioner, of the persons specified in subdivision (b) of Section 1821.
§3206 (c): For good cause, the court may shorten or waive notice of the hearing as provided by this section. In determining the period of notice to be required, the court shall take into account both of the following:
(1) The existing medical facts and circumstances set forth in the petition or in a medical declaration attached to the petition or in a medical declaration presented to the court.
(2) The desirability, where the condition of the patient permits, of giving adequate notice to all interested persons.
§3207:
…the matter presented by the petition may be submitted for the determination of the court upon proper and sufficient medical declarations if the attorney for petitioner and attorney for the patient so stipulate and further stipulate that there remains no issue of fact to be determined.
§3212: Nothing in this part shall be construed to supersede or impair the right of any individual to choose treatment by spiritual means in lieu of medical treatment, nor shall any individual choosing treatment by spiritual means, in accordance with the tenets and practices of that individual's established religious tradition, be required to submit to medical testing of any kind pursuant to a determination of capacity.
Malpractice
All persons owe a legal duty to do a risk-benefit calculus of their intended acts (or non-acts under special circumstances) and to then act only when the benefits outweigh the risks. This means all persons are held to a general duty to act as "an ordinary and reasonably prudent person under the same or similar circumstances." An act is negligent if it breaches this duty and thereby creates an unreasonable risk of foreseeable harm. Liability attaches if the harm that actually occurs is within the scope of these foreseeable consequences (this is called proximate cause) and there are no available defenses that can be asserted (such as assumption of risk, last clear chance, contributory negligence, "unclean hands", statute of limitations, etc.). Simple mistakes are not negligent acts under the law of torts.
There can be no malpractice until there is doctor-patient relationship. Malpractice includes breach of contract, defamation, undue influence, and false imprisonment in addition to substandard treatment per se. The statute of limitations for malpractice is three years from injury or one year from date the injury was or should have been discovered whichever comes first. In some situations, the statute of limitations is "tolled." Only 0.3 percent of all malpractice claims are against psychiatrists. This may in part be because patients are reluctant to expose personal secrets and causation is difficult to prove to skeptical juries. One type of malpractice is based on the law of torts. A tort is a civil wrong not based on contract committed by one person that causes injury to another. An action in tort requests compensatory - money - damages. There are three types of torts: intentional, unintentional or negligent, and strict. The four D's of the tort of negligence are (1) duty, (2) dereliction (breach), (3) damage, and (4) direct causation [I would add a 5th D - a lack of legal defenses.