Commentary

COVID-19 and decision-making capacity; more


 

COVID-19 and decision-making capacity

Dr. Ryznar’s article “Evaluating patients’ decision-making capacity during COVID-19” (Evidence-Based Reviews, Current Psychiatry. October 2020, p. 34-40) provides a cogent overview of the “threshold” or “gradient” approach to capacity evaluations, wherein the assessment of a patient’s decisional capacity hinges on the risks and benefits of the specific clinical intervention. From a medico­legal perspective, however, I am concerned that Dr. Ryznar makes a consequential category error in framing sociopolitically-driven noncompliance with infectious disease control measures as a capacity problem. In the United States, public health powers—including the use of isolation and quarantine—fall to properly constituted public health authorities, predominantly at the state and local levels. An infectious patient with suspect ideas about coronavirus disease 2019 (COVID-19) whose decision-making process is not directly compromised by neurocognitive illness does not present a capacity issue, but rather a potential public health issue.

For example, in a controversial 2007 case in Atlanta, Georgia, an attorney with active tuberculosis failed to heed medical advice to refrain from traveling.1 The patient’s uncooperativeness did not implicate concerns over his decisional capacity.1 However, his international and interstate travel triggered the Centers for Disease Control and Prevention’s legal authority under the Public Health Service Act to prevent the entry and spread of communicable disease.1-3 An authorized order from a duly constituted public health authority is issued and enforceable without regard to clinical determinations of capacity (and is generally subject to challenge via judicial or other due process mechanisms as a government-sanctioned deprivation of liberty to protect public welfare). State laws and local ordinances require physicians to notify the appropriate public health department when patients test positive for certain contagious diseases.

The difficulty with involuntarily detaining a cognitively intact patient due to concern over their contagion risk and erroneous beliefs runs considerably deeper than eliciting a “political backlash” or managing the qualms of hospital security officers. It is a fundamental matter of proper legal authority. Psychiatrists and other physicians assess patients’ decision-making capacity for specific treatment decisions on a case-by-case basis, seeking to preserve autonomy while practicing beneficence. Public health officers are agents of the state with designated authorities to control the spread of disease. A capacity determination in the absence of neurocognitive deficits implies the psychiatrist is evaluating the soundness of the patient’s ideas as opposed to their cognition, overlooking the reality that fully capable individuals can possess dubious—and even unsalutary—beliefs. While physicians educate patients about the risks of contracting and communicating infection, they are thankfully not tasked with arbitrating sociopolitical disputes at the bedside. Such controversies regarding pandemic response do not belong under the rubric of medical decision-making capacity. Conflating psychosomatic medicine consultations with public health orders risks unmooring capacity determinations from their medicolegal and bioethical foundations.

Charles G. Kels, JD
S Army Medical Center of Excellence
San Antonio, Texas

Disclaimer: The views expressed here are those of the author and do not necessarily reflect those of any government agency.

References

1. Tanne JH. Tuberculosis case exposes flaws in international public health systems. BMJ. 2007;334(7605):1187.
2. Public Health Service Act, 42 USC § 264-272 (1944).
3. Interstate and Foreign Quarantine, 42 CFR Parts 70-71 (2017).

The author responds

I appreciate Mr. Kels’s letter and explicit discussion of the limits of decision-making capacity. I agree that physicians should not overstep their legal authority and ethical mandate. The specific case discussed in my article was a patient who was symptomatic from COVID-19 who wanted to leave the hospital against medical advice. The contagious nature of this virus certainly falls under the risk/benefit analysis of the clinical situation because it is an important aspect of understanding the nature of the illness and treatment/recovery process (as a thought example, consider that such a patient lives with their elderly mother who has heart disease and chronic obstructive pulmonary disease, and the patient does not want their mother to die). From a medico­legal perspective, the risk of infection to others may not necessarily outweigh the benefit of autonomy, especially because decision-making capacity assessments are made with the purpose of balancing autonomy and beneficence of the patient, not others. I highlighted the relative importance of autonomy using the weight of the arrows in Figure 2 of my article. I did not task physicians with arbitrating sociopolitical disputes, but merely highlighted how the current climate can impact people’s personal views on COVID-19, which sometimes can run counter to scientific evidence. If a patient has an erroneous view about an illness, it is our duty to try to help them understand if it directly impacts their health or affects their decision-making process, especially in a high-stakes clinical scenario.

Elizabeth Ryznar, MD, MSc
Assistant Professor
Department of Psychiatry and Behavioral Sciences
Johns Hopkins School of Medicine
Baltimore, Maryland

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