Legal Lines: 'Determining Competency'

Quite often the medical provider confronts this difficult situation: an adult patient who the provider knows must be taken to a hospital yet the patient refuses to go. Examples of this abound within the elderly and the homeless population. What makes this situation more complicated is that the patient is conscious, alert, and oriented to person, place and time while at the same time requiring medical care. This article will discuss the issue of competency and provide suggestions for handling this common, difficult scenario.

The medical provider must first consider the issue of consent. A competent adult patient may refuse care and treatment even if it will have a negative impact on his life. Attempting to treat and transport a competent adult against his will could potentially lead to criminal liability for battery, which is defined as an unlawful touching, false imprisonment, or assault.[1] Similarly, an aggrieved party could bring a civil action for these same offenses.

Consent involves the concept of competency. Competency can be defined as “the mental ability to understand problems and make decisions.”[2] Most of us are familiar with competency when we talk about criminal defendants and their ability to stand trial for their crimes. Simply stated, I am referring to the insanity defense. In 1843, the McNaghten case[3] was decided in England and established the doctrine that a person is not criminally responsible for his actions when a mental disability prevented him from knowing either the nature and quality of the act or whether the action was right or wrong. In the modern era, the McNaghten rules, as they have come to be known, have been adopted by the Federal courts and most state courts. Insanity defense, however, is a misnomer. The insane defendant is not presenting a defense to the crime charged; rather, he is not answering at all. The insane defendant’s conduct is “excused” as a result of his mental incompetency.

Competency is prevalent in the civil law as well. There are mechanisms in place where a person deemed incompetent may be placed in a mental health institution. For instance, in New York State, the Mental Hygiene Law allows a person to be committed to a psychiatric facility upon the application of two separate physicians.[4] This application must be filed ten days prior to the commitment of the patient.

Under emergency circumstances, a director of any hospital with adequate staff and facilities for observing, examining, and treating the mentally ill may receive and retain a patient for fifteen days. The patient must exhibit behavior which is likely to result in serious harm, which is defined as attempts at suicide or homicidal behavior towards others. Within forty-eight hours of confinement, the patient must be evaluated by a second physician who is a staff psychiatrist and can certify the patient’s incompetency.[5]

None of these mechanisms, however, assist the emergency medical care provider at the scene. We simply do not have time to hold a hearing as in a criminal case. Moreover, we do not generally see our patients ten days in advance of their need for involuntary treatment. With regard to emergency commitments for the patient “likely to cause serious harm,” this statute cannot be easily applied to the elderly patient who refuses care and treatment and utters not one threat of harm to himself or others.

In New York, the Mental Hygiene Law gives police officers the power to take into custody any person who appears to be mentally ill and is conducting himself in a manner which is likely to result in harm to the person or others.[6] There are, however, shortcomings to this statute. Primarily, the criteria for what constitutes “likely to result in harm” are not explicitly defined in the statute. Obviously, threats of suicide or homicide would qualify. However, what about our scenario with an elderly, nonviolent patient in need of medical care? This situation does not neatly fit into the parameters of the statute.

Another shortcoming of this statute is its inability to provide EMS providers with the same powers as police officers. In this author’s opinion, an EMS provider is more apt at determining the competency and medical needs of a patient, especially in the present scenario.[7] Police officers who act pursuant to this statute are afforded explicit protection. EMS providers should also be given the same protection.

From a practical perspective, the EMS provider should develop an effective approach to testing the competency of a patient. Initially, all patients are assessed for their orientation to person, place, and time. Older EMS practitioners were also taught to test the patient’s awareness of current events: usually the patient was asked to name the President of the United States. However, further assessment must be performed.

Oftentimes, a patient can pass these simple tests yet still be incompetent. The practitioner should augment his approach by testing the patient’s mental abilities. For instance, have the patient count back from one hundred while subtracting seven (100,93,86,79 etc.). Another approach is to say a list of four unrelated items to the patient and have them repeat them (e.g. barn, carrot, flute, yellow). Finally, the EMS provider should note the overall living conditions of the patient when called to the patient’s residence. Examine the refrigerator for food, check for adequate heat in the winter, and be observant for fire or other health hazards in the residence. These living conditions may provide proof of the patient’s incompetency. In addition to the tests performed and observations made, it is imperative that these results and observations be well documented on the ambulance call report. This is especially significant in the transport of the reluctant patient who is being cared for against his will.

When necessary, the police should be enlisted to help convince the patient to be transported. For better of worse, a uniformed police officer has the ability to intimidate or “persuade” a patient. Oftentimes, a simple bluff of telling the patient that they must see the doctor for a “check-up” may work wonderfully for the recalcitrant patient.[8]

In addition to assistance from police officers, EMS personnel should enlist the help of medical control physicians or the patient’s private physician, if known. Such phone conversations have been helpful in my experience. Finally, some basic detective work by the medical provider may uncover a third party who can influence the patient. Look for personal photographs in the patient’s home or in his wallet and ask about relatives’ names, addresses, and phone numbers. One can also look for a neighbor or close friend nearby who can be used to assist your efforts. The key to success in these difficult situations is to engage the patient in a friendly, non-confrontational dialogue with the ultimate goal of convincing the patient to seek treatment.

In summary, a patient who fails the competency test should be transported to an appropriate medical facility. Those who appear to be competent but still make health care decisions which are detrimental to their well being should be more rigorously evaluated. The practitioner must be aware of the mechanisms available to assist them as well as the risks involved.

References & Footnotes:

[1] New York does not classify battery as a crime. Battery is actually called assault in the New York Penal Law.

[2] Black’s Law Dictionary, Seventh Edition, Bryan A. Garner, editor in chief.

[3] McNaghten or M’Naghten case 8 Eng.Rep 718 (H.L. 1843).

[4] Mental Hygiene Law section 9.27.

[5] Mental Hygiene Law section 9.39.

[6] Mental Hygiene Law section 9.41

[7] Granted, there are certainly exceptions on both sides of the coin.

[8] While I do not advocate intimidating or lying to patients, I do recognize that there are times when white lies can help.

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About the Author: James R. Carcano, Esq., EMT-P, is a paramedic and is currently a practicing attorney with Kitson, Kitson and Bisesto, LLP in White Plains, New York where he practices in the areas of personal injury, criminal, and administrative law. James has been invovled in EMS since 1984 and is a volunteer firefighter since 1985 in Mamaroneck, NY. James is also a lecturer and faculty member for the Westchester Community College and Norwalk Community Technical College Paramedic Programs.