Bioethics Discussion Blog: Autonomy: But Whose Autonomy?





Thursday, January 24, 2008

Autonomy: But Whose Autonomy?

Autonomy is an ethical principle the definition of which includes the person’s ability to make personal and independent choices. In medical practice, it is the right of a patient to make their own medical decisions based, in part, on information provided by the patient’s physician. It is the responsibility of the physician to provide the patient with all the risks, benefits and alternatives regarding the medical issue. If at the time of a needed decision, the patient is unconscious or doesn’t demonstrate the capacity to make such decisions, then what they have expressed in the past by writing or communication with others or through the assignment of surrogates may be sufficient to establish a decision. Sometimes, in medicine, there is a question of whether the patient actually has the capacity to make a medical decision even when the patient is conscious. It is the responsibility of the attending physician to finally answer that question. If there are no prior writings, communications or surrogates available as there often may be with a patient brought into the emergency room of a hospital, it becomes the additional responsibility of the physician to not only decide on the patient’s mental capacity but if decided as incapacitated to make the medical decision for the patient. The physician’s decision must be made only in the patient’s best interest.

A case that is currently in the news and which will be going to trial shortly is that of a patient who while being attended in a hospital emergency room for an injury strongly refused a rectal exam but was evaluated by the doctor as not having the capacity to make his own decision and since there were no surrogates available to speak for the patient, the patient was allegedly then held down and later sedated despite the patient’s continued protestations. The story is documented in a New York Times Blog article along with a great number of readers’ commentaries. All the facts are not known to the public and hopefully will come out in the upcoming trial of a lawsuit by the patient.

Of interest to our blog is how patient autonomy, to make one’s own decision, is affected by the situation, an alleged emergency medical evaluation for a potential harmful injury in which a patient refuses what the physician believes is an essential examination. In this situation, does the physician’s autonomous professional decision (in the past called “paternalism”) regarding the patient’s mental capacity to make decisions trump the patient’s own right to autonomy? Or another way of putting it, should all patients who enter an emergency room know that it is possible that the doctor will decide that the patient is unable to make an informed consent decision for a procedure and that the doctor will perform the procedure even with the expressed refusal of the patient? ..Maurice.

Graphic: Painting "Judith Beheading Holofernes" by Artemisia Gentileschi ca 1620


At Friday, January 25, 2008 6:39:00 AM, Anonymous bob koepp said...

Maurice - As you said, we don't know all the relevant facts in the present case. Among the things I'd like to know is whether the physician did indeed make a "professional decision" about the patient's capacity to decide whether to allow the rectal exam, and if so, on what basis. The main justification for "forcing" the exam on the patient seems to be the press of time in an emergency situation. But this also suggests that the physician did not have time for a "professional" assessment of the patient's decision-making capacities. I suspect that the only "defense" the physician can provide for overriding the patient's objections is that it was done with "good intentions." Of course, we all know that good intentions are used as paving stones on the road to hell.

At Friday, January 25, 2008 9:43:00 AM, Blogger Maurice Bernstein, M.D. said...

"...good intentions are used as paving stones on the road to hell", Amen to that.

Or as Henry David Thoreau once wrote: “There is no odor as bad as that which arises from
goodness tainted. It is human, it is divine, carrion. If I knew for certainty that a man was
coming to my house with the conscious design of doing me good, I should run for my

In making a urgent medical decision, "good intentions", that is intentions for the best interest of the patient, is certainly an acceptable reason. On the other hand, I believe medical decisions by physicians may also contain within them self-interest intentions and these make "good intentions" suspect. Consider for example, the case of the physician in the emergency room with that trauma patient described in the New York Times Blog article. What if part of the physician's decision to underestimate the patient's capacity to make decisions was that accepting the patient's refusal for a rectal exam might lead to the physician later being accused of performing an inadequate workup that might have led to further injury to the patient? Medical decision-making can be very complicated. ..Maurice.

At Friday, January 25, 2008 10:14:00 AM, Anonymous TT said...

The following is from a summary written by Alice Schlesinger, the judge in the case when she denied a motion to dismiss the case:

“Plaintiff Brian Persaud, a construction worker in his early thirties, was hit in the head by a wooden beam and knocked to the ground while working at a construction site on May 20,2003. He was transported by ambulance to the defendant New York Presbyterian Hospital (the Hospital), where he arrived fully conscious and, according to the medical records, “alert and oriented times three.” He was seen by the on-duty attending emergency room physician, defendant Dr. Eric Maniago. Pursuant to Dr. Maniago’s instructions, the resident Dr. Susan Troccialo informed the plaintiff that she would perform a rectal examination and proceeded to do so with Dr. Maniago nearby. Plaintiff repeatedly and forcefully declined to consent to the rectal exam, became agitated, and struck a Hospital employee while attempting to resist the exam. Hospital security was called and plaintiff was restrained, sedated and temporarily intubated.”

Hmmmm... AOx3, no problems until they attempted to physically force a procedure upon him after he repeatedly declined his consent.

Agree we don't have all the facts, but from what we do have it looks like assault & battery, and false imprisonment.

Going a step further, all individuals have the right to use appropriate physical force to resist an assault upon their person. Having him arrested for exercising his right of self defense also constitutes false arrest.

The hospital would do well to settle this before it gets to court...the bad publicity alone is bad enough, but I personally don't think their chances are very good in front of a jury of ordinary citizens. This is a civil action & plantif doesn't need to meet the "beyond a reasonable doubt" standard, just a preponderance of evidence (51% probability).

Just my $0.02......


At Friday, January 25, 2008 10:41:00 AM, Blogger Maurice Bernstein, M.D. said...

TT, I would agree that it would seem that the patient has a case but the basic issue for this blog is whether the physicians have made their case with regard to due diligence in establishing that the patient had no capacity to make a refusal decision and that the forceful approach to obtain a rectal examination was truely in the best interest of the patient and for no other reason. In order to answer that question, we do need more facts. ..Maurice.

At Friday, January 25, 2008 2:18:00 PM, Anonymous TT said...

Over and above the simple act of forcing a procedure upon a patient against their will, I think what bothers me most about this issue is the plethora of supposedly concerned health care professionals that have expressed the opinion in various forums they they know what is best for patients, and that refusing their recommendation is evidence that the patient isn't competent to make the decision to refuse.

There's another factor at play here that could make this even more interesting:
In 1990 the US Supreme Court ruled that under the 14th Amendment to the Constitution, a patient has the absolute right to refuse unwanted medical care.

So in addition to the other torts alleged to have been committed upon Mr. Persaud, the hospital may have violated his constitutional rights as well, for which an action could be brought in federal court. Like I said, it could get interesting.

The "future liability" issue extended as a rationale by some simply doesn't hold water. It's really simple - doctor recommends procedure, patient declines, doctor explains why they think it's necessary, patient still declines, doctor has patient sign a statement that they declined the procedure and waive any any future liability for future problems directly related to the refusal of the procedure.


At Friday, January 25, 2008 2:56:00 PM, Blogger Maurice Bernstein, M.D. said...

TT, i'm sorry but I think it's not as simple as: " recommends procedure, patient declines, doctor explains why they think it's necessary, patient still declines, doctor has patient sign a statement that they declined the procedure and waive any any future liability for future problems directly related to the refusal of the procedure."
A patient has the right to refuse medical care but it is not "absolute" in the sense that a patient who has been shown not to understand the nature of the medical care, the nature of the patient's illness or condition, the benefits of accepting the treatment against refusal and risks of accepting the treatment could not legally be making an informed consent. This "showing" must be documented by the physician and I would think that for a physician to reject a patient's refusal for what was felt to be a life-saving treatment on the basis of patient non-capacity would put a greater burden on the physician to prove the basis for the rejection. If the patient at the time of the examination was truely alert and oriented as to time, place and person, though not fully diagnostic with regard to the ability to make medical decisions, it would require even more substantial evidence regarding the basis for non-capacity. ..Maurice.

At Friday, January 25, 2008 3:40:00 PM, Blogger MY OWN WOMAN... said...

We don't know the "whole story." We are seeing things from the outside at best and perhaps slanted by the media. Let me throw in one more element. What if the patient had a blood alcohol level of 0.38 and was + for opiates. He can still arrive in the ER alert and oriented x 3 but does he have the sense to make sound decisions? I'm not saying that is the case in this situation, but what if it was?

At Friday, January 25, 2008 5:01:00 PM, Blogger Maurice Bernstein, M.D. said...

My Own Woman, you brought up a good point BUT (and there is always BUTs) patient decision making does not necessarily involve "making sound decisions" just as seasoned physicians may also not make sound decisions. It is not "sound decision making" that is the criteria for patient decision making but is the capacity, the mental ability simply to make a reasoned decision. The decision can be the wrong one but that is not part of the criteria. What patients must be asked is: "Tell to me what I told you was of concern to me about your condition and what the procedure would accomplish. Tell me what I told you was the benefits to you of the procedure, what might happen if you didn't have the procedure. Tell me what you understand is the risks to you by having this procedure." And then finally when the patient makes a decision to accept or to refuse the procedure, the patient is asked one of the most important questions: "Explain to me why you decided the way you did." If the patient has answered all the previous questions with apparent good understanding and has answered the last question demonstrating a rational and logical reasoning whether it is to accept or refuse, that's the sign the patient has capacity to make his own medical decision irrespective of the view the physician holds about the requested procedure and irrespective of the decision made by the patient.

The problem lies in whether the physician has taken the interest and the time to provide the patient the information, the time to ask and indeed actually asked the questions above and particularly the last question. Finally, the problem also lies in whether the physician can separate his or her own emotions, self-interests and views and actually LISTEN to the patient's responses and evaluate the patient in a non-prejudicial manner.

Now what went on in all this regard, whether all the questions I noted above were actually asked in the New York ER case, we really don't know. But it should have been before the procedure was forced upon a patient's refusals. ..Maurice.

At Friday, January 25, 2008 5:17:00 PM, Blogger Maurice Bernstein, M.D. said...

My Own Woman, I apologize if I misinterpreted your expression "to make sound decisions." I intepreted it as "to make an expected decision." However, if you actually meant by "sound" essentially what I wrote as "a rational and logical reasoning whether it is to accept or refuse" and whether it is expected, unexpected or clinically appropriate or not..then we are in agreement in what we both meant. ..Maurice.

At Friday, January 25, 2008 6:26:00 PM, Anonymous js md said...

Dr B,
Last week on my blog, I posted a link to a Wall Street Journal law article which had some excellent reviews of the case. Here's maybe the best of the comments:

According to the original article, this man was driven to the hospital by his friend and walked into the ER. Clearly this patient was in full control of his faculties. The patient was arrested after “assaulting” the doctor or who ever it was forcing this rectal exam on him. In twenty eight years as a surgeon treating thousands of head injured patients, I have never seen a combative head injured patient arrested and jailed for assault. Therefore, if this patient liable for the assault, its a tacit admission by the treating hospital he was in control of his faculties and well within his rights to refuse a rectal exam. If this man was alert, oriented, moving all for extremities, the yield on a rectal exam in my experience would about zero percent. That this patient was forced into this procedure, then paralyzed and intubated after refusing is the Advanced Trauma Life Support protocol carried too far. If I were the hospital attorneys, I would recommend apologizing to the patient and settle as quickly as possible.
Comment by Trauma Surgeon - January 17, 2008 at 9:59 am

At Friday, January 25, 2008 7:01:00 PM, Anonymous Anonymous said...

The schizophrenic decision making by the hospital team could have been the result of more than one decision maker.

The physician may have thought that the patient was incompetent and so it was up to him to use his judgment regarding what was best for the patient, regardless of patient wishes.

The decision to have him arrested could have been made by a different entity, who were ignorant or chose to ignore the determination of status by the physician.

On the surface, however, it doesn't look likely that the patient received compassionate, thorough and respectful treatment at the hospital.

On another note, it is my personal opinion that there is a heavy emphasis on physical health in the western medicine,and psychological well being is largely ignored. Looking at the consequences for this patient, it appears to me that the benefit of the rectal exam to his physical health was heavily outweighed by the risk to his psychological health. I can only hope that the physician invoved did consider this trade off and did not act capriciously.

At Friday, January 25, 2008 8:00:00 PM, Blogger Maurice Bernstein, M.D. said...

js md, unfortunately being arrested and jailed for assault has nothing to do with the determination regarding the patient's capacity to make medical decisions for himself. Capacity to maintain self-control when forced to comply with a refused procedure and when one feels the threat of being possibly raped also has nothing to do with the mental ability to make ones own medical decision. Capacity to make medical decisions is not determined by capacity to make other non-medical decisions such as attending to ones finances. In fact, even with regard to medical decisions, the patient may have capacity to decide on one medical issue and not another so the capacity is medical decision specific. That is why a patient may be quite able to decide whether a rectal exam is appropriate for him whereas he may not have the capacity to decide whether to enter a hospital for psychiatric treatment. Establishing the capacity of the patient to have refused the rectal all boils down to whether he appropriately answered the questions I posted previously. ..Maurice.

At Friday, January 25, 2008 10:39:00 PM, Anonymous TT said...

Sorry Dr Bernstein, I have to disagree.

There is absolutely no requirement on the patient that they explain why they refuse a procedure. All that is required is that they understand what is proposed & why, the potential consequences if they decline, and be willing to accept those potential consequences. How and why they arrive at their decision is completely irrelevant, and quite frankly none of the physician's business.

Further, there is no burden of proof on the patient to prove they are competent. Courts have consistently held that patients are assumed competent until proven otherwise, which means the burden of proof is on the physician - and the standard they have to meet is fairly high, as it should be.


At Saturday, January 26, 2008 8:32:00 AM, Anonymous js md said...

Dr B,
I think you're arguing a fine point. I'm not medically capable of making lots of informed medical decisions, but I am certainly legally capable of them. I may not be fully competent to know who will be the best president, but I am still entitled to make a choice. If I and better qualified physicians cannot see the point of doing a rectal exam in this situation, how is the patient supposed to see the point? We of course only know the plaintiff's story, but I have trouble knowing how they can defend restraining and fully sedating a patient so that they can force him to undergo at best a questionable procedure. And then having him arrested!

At Saturday, January 26, 2008 10:03:00 AM, Blogger Maurice Bernstein, M.D. said...

TT, I want to clarify some points here for you and my other visitors.
First of all, I haven't previously used the word "competency" since that is a legal term that is established in the court system. Yes, every person is assumed competent until a judge decides that the person is incompetent and thus is not able to handle their affairs and decisions.

In medicine, many times judgments regarding the ability of a patient to make his or her own medical decision must be made quickly. There is insufficient time to take the matter to court for adjudication. This is where the physician is responsible to perform a mental evaluation of a patient with regard to the patient's capacity (capacity is the established term in this event) to make a medical decision. Competency and capacity as applied may not necessarily be present in the same patient. A patient may have the capacity to make the medical decision under the current circumstances but fail capacity tests for other circumstances and fail to demonstrate competency to the courts to handle their financial and other affairs.

Now with regard to your concern: "How and why they arrive at their decision is completely irrelevant, and quite frankly none of the physician's business." It is how and through what reasoning the patient arrives at a decision, as I have previously written,is a critical step in the doctor evaluating the capacity of the patient. It has nothing to do with acceptace or refusal nor the way the doctor would come to the same conclusion. But how the patient explains the process is the important issue.

Here are some gross examples, but some patients might respond similarly. "I refuse the rectal exam because I just talked to a Martian and it told me not to have it done." "Doc, I wasn't listening to your explanations, in fact they mean nothing to me, but the only thing I know is when the moon is full as it was last night, I never allow myself to listen to other people's demands." "I refuse and it's because it is always safer to refuse than to accept." With these explanations, there is no hint that the patient has used (or even understood) the information about his or her medical condition, thought about weighing the risks vs benefits or applied these considerations to some personal values, goals or quality of life desires. Personal medical decisions even if "wrong" in the view of others requires demonstration that the patient has gone through these steps. Even "I accepted the surgery because my mother told me always to obey what a doctor advises" is not acceptable and requires further questioning of the patient to understand if more reasoning was involved beyond what the patient expressed.

The issue of how decision making capacity is established will be a very important one in the upcoming trial of the New York case but it also important for all patients to understand. The November 1 2007 issue of the New England Journal of Medicine has an article by Paul S. Appelbaum, M.D. exactly on this topic "Assessment of Patients' Competence to Consent to Treatment" and can be accessed as a free full article at this link. I hope my comments and the article will help clarify the matters discussed on this thread. ..Maurice.

At Saturday, January 26, 2008 10:45:00 AM, Blogger Maurice Bernstein, M.D. said...

js md, yes you are legally able to make whatever personal medical decision you want (except in certain cases where an illness becomes a public health matter or a frank danger to yourself or others, with a psychiatric illness including major depression as an example). That autonomous decision is valid unless you are specifically found not to have the capacity to make that decision. And the standard for a physician to make such a evaluation of a patient should be very high. I suspect that in the New York case, the physicians may have failed to meet that kind of standard..but we shall see. Further, the patient may have been under or misinformed regarding the value of a rectal exam in his situation or not even told that the practice was currently controversial. Finally, of course, the behavior of the doctors and hospital in this case is highly questionable and that is why there will be a trial to challenge the participants with regard to the facts and the law.

I also want to add to my previous posting that the decision of incompetency by the court judge is not based on the clinical expertise of the judge but based on a physician's mental examination of the patient and the physician's testimony regarding the findings of the examination and the professional conclusion. ..Maurice.

At Saturday, January 26, 2008 11:27:00 AM, Anonymous js md said...

I read the NEJM article Dr. B, and it is certainly a good review. But I might point out that the article is referring to extensive courses of therapy or procedures with life and death consequences. That is a very different scene from demanding a diagnostic test with a low probability of yield and demanding an immediate acquiescence on the patient's part. That would be more like a doctor insisting that a patient undergo an immediate screening test like a colonoscopy.
In the case as we know the facts, there was little urgency about doing a rectal exam even if it was indicated. The patient had a head injury after all, not an apparent spinal cord injury.

At Saturday, January 26, 2008 12:28:00 PM, Blogger Maurice Bernstein, M.D. said...

js md, as chair of my hospital's ethics committee and potential involvement with issues dealing with patient capacity, I would expect that some form of a similar protocol be applied by a physician making an evaluation of capacity regardless of the nature of the decision nor its relative urgency.
And it may not take a long drawn out conversation with the ill patient to come to a conclusion.

This is what the doctor in the ER in the New York case might need to say to the patient:
"Your head was injured and we are stitching up your wound. We don't think your brain has been injured by our physical exam so far but the force of the injury could have hurt your spinal cord even though you can walk and we find no signs of injury. There is a test of the strength of your anus (*ass hole") which if very weak or absent might indicate a spine injury of which we were unaware. Spine injury can be serious and lead to paralysis. There are X-rays and other lab tests we could use but this is a simple test. However,the use of the test is controversial as to its value though we in this ER consider it important. The test would require that I put my finger through the hole. May I have your permission to do the test?"

If the patient responded "go ahead" with this test,a minor procedure, bearing virtually no complications and the patient had been noted to be fully alert and oriented X3, nothing further would needed to be asked. If the patient refused the exam, the physician could then ask "Why don't you want me to do the rectal exam?" If the answer is simply "I am satisfied that you checked me over and found no injury to my spine and even though I understand that if there was an injury that you missed it could cause paralysis,but if this test is controversial, I am willing to take the risk of not having a rectal since to me a rectal exam is unpleasant and discomforting and wouldn't want it unless it was the only test available." If the patient said something to that effect, the test for capacity was met and any attempt to do a rectal against the patient's decision would be unethical and could be a criminal act. On the other hand, if the patient stated "I refused because I think that any rectal exam amounts to rape" shows that the patient didn't understand all that he was informed and is not making a fully considered decision. Further questions would have to be asked by the physician to help clarify the patient's thought process, however the physician might reconsider him/herself the need for the test in light of the patient's attitude and considering the consequences of performing the exam against the wishes of this unwilling patient.

Again, forcing an rectal exam on an unwilling patient may be also the physician's self-interest concerns and an attempt to save his/her own ass at the patient's emotional expense related to the patient attempting to save his own ass! So to speak, of course. That's what I was getting at with the title of this thread: "Autonomy: But Whose Autonomy?" ..Maurice.

At Thursday, February 28, 2008 11:53:00 PM, Blogger zane said...

Your comments on the Persaud case are interesting. Personally I think this Dr. Maniago is a thug, who should be stripped of his medical license. I hope Persaud is awarded every cent he is asking for. If I were on the jury, he would get it.
My aunt sat on such a jury. According to her, there wasn't a single juror who felt any sympathy for the the Doc, or the hospital.
They could all relate to the patient. From the accounts I have read, the Doctor wasn't interested in the welfare of Brian Persaud, as he was being dragged off to jail, in a hospital gown. It is nonsense to claim a man was so impaired he could not refuse a rectal exam, and yet he was competent enough, to be put through such humiliation.

I have a strong suspicion, Dr. Maniago will get very little sympathy. He certainly would not from me. To bad his patient wasn't Chuck Norris or Jackie Chan. Then someone might feel sorry for him.

Thanks for allowing me to rant. This case infuriates me.

p.s. How do you defend a patient with a head injury being sedated, and intubated over a rectal exam. It seems to me they wanted to punish the patient.

At Tuesday, April 22, 2008 9:10:00 PM, Blogger Maurice Bernstein, M.D. said...

Today from Associated Press, here is the followup on the story that led to this thread:

A hospital did nothing wrong when it tried to examine the rectum of a construction worker who had been hit on the head by a falling wooden beam, a jury found Monday.

After deliberating for about an hour, a state Supreme Court jury awarded nothing to Brian Persaud, who sued NewYork-Presbyterian Hospital for unspecified damages. The panel found the hospital and its emergency room medical staff were not liable.


At Thursday, January 21, 2010 3:10:00 PM, Anonymous Anonymous said...

As someone who is sitting here with a sore bum from an unexpected rectal exam I am on the side of the plaintiff. As far as the jury letting the hospital off, well, that is an example of the law not having much to do with ethics or justice.

In my case I was getting what I thought was my usual pelvic exam from a new provider who was at a teaching institution. All of a sudden I got a painful backdoor experience. Why not ask or communicate before doing that? Not on the same scale as the plaintiff, but docs treating patients as meat is common.



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