HospitalInspections.org

Based on staff interview, review of hospital policy for "Incompetent Patient Policy" (dated 10/16), and patient #1's record, it was determined that the hospital policy included elements which failed to accurately differentiate between capacity and competence. Hospital staff also failed to certify an incapacity for patient #1 prior to going to a surrogate for consent.

1) Hospital Policy "Incompetent Patient Policy" (IPP) (dated 10/16) revealed a title which inaccurately reflects a court-determined mental status (incompetency), whereas the word incapacity would accurately reflect a physician mental status determination.

Review of the IPP revealed in part, "Only a physician can determine the capacity of a patient to make medical decisions. A physical evaluation and documented certification of incapacity is required to deem a patient incapable of making an informed decision ..."

Continued review of the IPP policy revealed an entry related to Emergency Petition and Involuntary Admission. Patients who are under an emergency petition are compelled to receive an evaluation for dangerousness to self or other and to have a clinical determination made as to the need for involuntary hospitalization. Patients who have been determined to require involuntary admission would be compelled to go for further inpatient evaluation and treatment. In neither case would the patients necessarily be determined to be incompetent or to lack capacity to make decisions. Inclusion and confusion between incompetence, incapacity, and involuntary behavioral health admission in the IPP policy failed to clarify that behavioral health patients retain their rights for all but those evaluations.

Determinations of incompetence and the requirement for an emergency psychiatric evaluation are legal functions. The need for involuntary psychiatric admission and determinations of incapacity are clinical judgements. Conflating these terms in the policy may lead to confusion among staff.

The policy continued with "Psychiatric Care" and stated in part, "Psychiatric treatment of an incapacitated patient requires a certification of incapacity, but does not provide for medical treatment of conditions against the patient's will." This indicated that the hospital confused incapacity with involuntary admission.

Under IPP "Psychiatric Elopements" the policy stated in part, "If a patient who has been declared incompetent attempts to leave the care area ..." The use of "Incompetent" here is inaccurate as incompetence can only be determined by a court.

In an interview on 12/11/18, an ICU physician talked exclusively about involuntary psychiatric admission when asked about determinations of capacity in the unit.

2) Patient #1 (P1) was an adult who admitted to intensive care unit. A History and Physical noted P1 to be ventilated and sedated. Three consents on the day of admission revealed that P1's spouse signed each consent. Review of physician notes failed to reveal any certification of incapacity, or notation about the patient's condition contributing to incapacity, prior to obtaining consents from P1's spouse. A telephone consent was obtained by a different family member 3 days later when no other family member could be contacted. No progress note certification of incapacity was found at that time either.

In summary, the hospital appeared to have confusion regarding competency vs. incapacity and the role of capacity in psychiatric evaluations and admissions. Further, for P1, the hospital failed to certify that the patient lacked capacity to make health care decisions prior to going to P1's surrogate.