In intensive care settings, where a patient with a SUD may be treated for acute life-threatening intoxication or severe withdrawal delirium, an assumption of decisional incapacitation often exists as a result of medical acuity and impaired mentation. In these situations, treatment usually proceeds with consent obtained from next-of-kin, a guardian, or an administrative (hospital) authority when other substitute decision makers are unavailable or unwilling. In such cases, psychiatric consultation can play a dual role in documenting the patient’s decisional capacity and also in contributing to the care of patients with SUDs.
It is critical to perform a cognitive evaluation and mental status examination in a medically compromised patient with an SUD. Unfortunately, serious cognitive disorders can often be concealed by a superficially jovial or verbally skilled patient, or by an uncooperative individual who refuses to engage in a thorough conversation with his/her clinicians. These scenarios present significant challenges and may result in missed opportunities for care or premature discharges. Negative countertransference by clinicians toward patients with SUDs may also promote poor outcomes. For difficult cases, legal and ethical consultations may help mitigate risk and guide management approaches (Box14).
The legal system rarely views patients with substance use disorders (SUDs) as lacking decisional capacity in the absence of overt psychiatric or cognitive deficits. The penal system offers little if any mitigation of liability on account of addiction in civil or criminal cases. On the contrary, intoxication is an aggravating factor in such settings. Despite extensive literature that questions the “free will,” accountability, and responsibility of patients with SUDs, the legal system takes an “all-or-none” approach to this issue. It assumes free choice and accountability for patients with SUDs, except when a clear superimposed psychiatric or cognitive disorder (such as psychosis or dementia) exists. Rarely, some jurisdictions may allow for mental health commitments on account of severe and persistent addictive behaviors that clearly pose a risk to the individual or to society, implicitly recognizing that incapacitation can result from severe addiction. Nevertheless, a finding of imminent or impending dangerousness is generally required for such commitments to be justified.
In other situations, individual health care settings may resort to local hospital policies that allow impaired patients with SUDs with a clearly altered mental status to be detained for the purpose of completing medical treatment. Presumably, discharge would occur when the medical and psychiatric acuity has resolved (often under the umbrella of a “Medical Hold” policy). Jain et al14 suggested that although such commitment laws for patients with SUDs may be appealing to some people, especially family members, specific statutes and their implementation are highly variable; the deprivation of liberty raises ethical concerns; and outcome data are limited. Conversely, most states either do not have such legislation, or rarely enforce it.
How to assess decisional capacity
A direct conclusion of incapacity in an individual cannot be determined solely on the knowledge of the patient having a SUD-related clinical condition. (The possible exception to this may be a patient with severe dementia.) Evidence suggests that clinicians must conduct a specific assessment to determine the severity of the psychiatric or cognitive impairment and whether it directly impacts a patient’s ability to:
- understand the decision at hand
- discuss its benefits and risks
- describe alternatives
- demonstrate an appreciation of the implications of treatment or lack thereof
- communicate a clear and consistent choice.
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