By Lisa Pang C'13
Rushing, whose lecture was organized and sponsored Penn Law’s Law and the Brain Student Group, explained to her audience that although guidelines exist for defining medical decision-making capacity-- patients must retain their ability to communicate, understand and appreciate the medical consequences of their actions, and remain consistent with the goals and values expressed prior to treatment – the process is still not clear cut.
“People with medical capacity [have the right to] make bad decisions,” Rushing pointed out, even resulting in death. The gray area, she noted, comes in determining the medical capacity of a patient.
“The sticky area is the time between suspected incapacity and determined incapacity,” said Rushing. Numerous laws and rulings are in place to protect the patient’s right to liberty as stated in the Fourteenth Amendment. Doctors who wrongly detain a patient without following proper procedure can be faced with charges of false imprisonment and battery, if physical restraining methods are used.
“Hospitals are required to use the least restrictive means to accomplish restraint to prevent self-destructive behavior or harm to others,” she said. However, she pointed out, some higher forms of restraint include chemical and mechanical restraints.
Rushing suggested two policy changes that could be implemented to help physicians navigate this gray area. One is the implementation of a “time-limit for detention,” she said, during which a patient with suspected medical incapacity could be kept for no more than two hours to allow the proper analysis to be completed by a psychiatrist.
Since the response time by psychiatrists is usually within an hour, unless emergencies require a more rapid response time, Rushing said she was confident that this policy change would allow doctors to ensure their patient’s safety without facing backlash from having to navigate a tricky legal area. Moreover, Rushing recommended that this policy change be “added as an element of a hospital admission contract,” so that patients are made fully aware of hospital procedures before admittance.
The final verdict operates on a “sliding scale”, Rushing noted. The higher risk of self-harm due to a patient’s actions, the higher the medical capacity must be to allow the patient to make the decisions that put him or herself in harm’s way.
In the event that the patient is found to be medically incapacitated, several laws and rulings attempt to establish guidelines to direct doctors towards determining and following what the patient’s wishes would have been if they were medically capable. In the 1972 Cantebury v. Spense case, for example, it was ruled that, unless it was an emergency, the patient’s relatives must consent to the procedures performed on the patient. “The only generalization is that the family decides,” observed Rushing.
Furthermore, the Pennsylvania Health Care Agents and Representatives Act allows patients to appoint a surrogate decision-maker, known as an agent, who makes decisions for the patient in the event that the patient becomes medically incapacitated, which can be stated in an advance directive filed by the patient.
However, if the surrogate is not appointed by the patient, the law appoints surrogates, or agents, in the following order of priority: spouse, even when separated; adult children; parents; adult siblings; adult grandchildren; and an adult who understands the patient’s needs and preferences, who, as Rushing pointed out, is in the last class of priority.
A surrogate decision-maker may not “refuse the treatment required to save the patient’s life unless the patient is in an end-stage medical condition or permanently unconscious,” Rushing reassured her audience. In Pennsylvania, if the “surrogate is unsure of patient’s preferences,” she explained, the surrogate must follow these mandates: “one, preservation of life; two, relief from suffering; three, preservation or restoration of function.”
After Rushing's lecture, Benjamin Bumann L’11, President of Penn Law’s Law and Brain Group, expressed great enthusiasm for the speaker and the subject matter. “Dr. Rushing demonstrates the extent to which understanding human cognition is incredibly important for adequately dealing with legal matters and justice,” he said.