Medical Incapacity Holds Require Ethical Oversight
An older person with dementia wanders away from home, sustains a fall-related head injury, and ends up at the hospital. Medical staff calls a family member to ask they pick up the patient, and the family member agrees. Then, the family member receives another call indicating the patient is walking out the door right now. The family member requests staff hold the loved one until they can arrive to pick up the patient.
“Almost every reasonable person would agree that in this situation, the hospital should watch [the patient], settle her down, give her something to eat, and the family will take her home, and she’ll be OK,” says Paul L. Schneider, MD, FACP, HEC-C, a clinical assistant professor at Kaiser Permanente Bernard J. Tyson School of Medicine and author of a paper on this subject.1
In reality, hospital staff likely will say they cannot hold the patient because there are no legal grounds to do so. “I don’t feel we are doing good justice to these confused elderly people by saying just because you want to leave, we’re going to release you,” Schneider argues.
One issue is psychiatric holds typically are not used for elderly people with dementia, or for patients who are medically sick and become confused with delirium. “Our mental health colleagues increasingly don’t want to write medical health holds — and, increasingly, the courts will not support them, for dementia or delirium patients,” Schneider observes.
ED providers facing this situation will tell ethicists, “I have no legal ground to hold this patient.”
“That’s where I come in and say, ‘Well, then, you ought to do the right thing, and create a medical incapacity hold policy for your hospital,’” Schneider says.
Such policies reflect the fact the hospital is acknowledging a bigger problem than any individual patient. “This is really a problem that is going on in society now. And the institution ought to help out with some of the responsibility of what to do when this happens,” Schneider asserts.
Clinicians feel conflicted about their ethical obligations. On one hand, they know it is unsafe for a confused person to be allowed to just walk out of the hospital. On the other hand, they are understandably worried about their legal risks.
A good hospital policy helps nurses and physicians understand it is OK to detain someone for safety if they follow appropriate steps. For example, clinicians should try calming measures and de-escalation approaches before restraining someone. “The policy will help nurses and doctors understand: You can stand up, and do the right thing, and the policy will support you,” Schneider says.
Ethicists should be involved in developing these policies. “Ethics doesn’t have to be involved in each and every case, but does need to be involved in making sure that the policy is being worked appropriately. There needs to be ethics oversight of the process. The last thing we want is for a policy like this to be misused,” Schneider cautions.
Ethicists may be concerned busy physicians will not thoroughly assess decision-making capacity. This could result in inappropriately written holds for patients who disagree with their physicians about the need for hospitalization. Medical hold policies would require independent assessments of capacity from providers and, typically, a mental health provider to ensure the patient is appropriate for the hold.
Moreover, hold policies usually require the patient’s situation to be risky enough that the likelihood of grave harm resulting from the patient’s release is substantial. “Ethicists can ensure quality by oversight of the use of the hold in a facility,” Schneider says.
If an ED patient is waiting for a psychiatric evaluation, mental health staff can write orders for a psychiatric hold if appropriate. In some cases, though, a person wanders in the ED, but shows no evidence of a psychiatric illness.
“If there is still a lot of ethical concern about allowing a confused patient to leave, then that’s a good opportunity for the medical capacity hold,” Schneider offers.
Schneider worked at an ED in which police brought in a patient they found wandering the streets. The on-call psychiatrist determined the patient had dementia, but did not meet the criteria for a psychiatric hold. The patient was allowed to leave, but police soon brought him back because he was walking into traffic on the freeway. The police asked ED providers, “Can’t you hold him now?” Staff reluctantly put the man on a psychiatric hold. This kind of situation is playing out in EDs nationwide, according to Schneider. It is easier to let the patient go, because clinicians are uncertain if they are on solid legal ground to hold the person. Even ethicists are conflicted about what to do. “A lot of ethicists, when they hear about the medical hold, are really concerned the doctors will abuse people’s rights. But is it better to let somebody walk on the freeway? Is that a good thing that we should be proud of?” Schneider asks.
To address this issue at the institutional level, hospitals need a partnership of ethics, psychiatry, hospitalists, nursing, risk management, legal, and security. “Ethicists are going to have to make the case for this at their institutions for why a policy like this is ethically justifiable,” Schneider says.
1. Schneider PL. The medical incapacity hold - the most appropriate solution to a complex clinical problem. Am J Bioeth 2022;22:100-102.
Clinicians feel conflicted about their ethical obligations. On one hand, they know it is unsafe for a confused person to be allowed to walk out of the hospital. On the other hand, they are understandably worried about their legal risks.
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