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Withholding pain medication in the ED because of legal fears—Bad practice for a bad reason

Editorials When I was injured in a serious lawnmower accident several years ago, I was given pain medication in the hospital emergency department (ED) and then not permitted to consent on my own behalf to the needed orthopedic surgery to repair my foot. Instead, the physicians turned to my wife, even though my coherent 2-hour interaction with the ED physician while awaiting the surgeon's arrival should have made my continuing capacity obvious despite the medication. As the article by Graber and colleagues ~ in this issue shows, I am hardly the only patient who has ever been victimized in the ED because of prevalent physician (and administrator) misconceptions about the relationship between pain medication, on the one hand, and potential legal liability exposure for treating in the absence of valid informed consent, on the other. In my own case, my personal autonomy was violated because I (the patient) was not allowed to make the central decision about my own bodily integrity. Graber et al illustrate how the physician's same legal misconceptions can lead to a mirror image, but perhaps even more objectionable, state of affairs, namely, inadequate prescription of pain medication out of fear that the patient's informed consent will be compromised and the physician will be legally exposed as a consequence of that compromise. Patients' unnecessary suffering, in end-of-life situations particularly,2,3 when physicians fail to prescribe sufficient amounts of pain medication is by now a well-known deficiency in medical practice, and anxieties about the law are at least one part of the explanation. Distressingly, the ED environment does not appear to be immune from this area of weakness in patient care. Physicians' fears of destroying the decisional capacity/ competence element of informed consent by ordering pain medications in the ED stem from a tendency--often embodied in formal institutional protocols--to view the issue of capacity from a categorical rather than a functional perspective. The notion that clinical labeling or diagnosis (eg, patient who has been given pain medication within a certain time frame) can, by pigeonholing the patient, automatically be equated with a judgment about decision making ability has been thoroughly rejected in contemporary legal and ethical mainstream thinking. 4 Patients who have been given pain medications (or who fall into other diagnostic categories) may possess widely varying cognitive and emotional capacities and, hence, must be evaluated individually. Although the fact that a patient has been medicated may well be a trigger that suggests the need for careful investigation of present decisional capacity, it should not predetermine the outcome of that individualized assessment. Further, decisional capacity is no longer accepted in law or ethics as a global, all-or-nothing construct. Until relatively recently, both the medical and legal systems assumed that individuals were either completely competent, in which case they retained all decision making prerogatives, or completely incompetent, such that all choices concerning that person were delegated to a surrogate (if available). Today, capacity is understood as decision-specific in nature. Different types of decisions affecting the patient's wellbeing may entail different types and levels of cognitive and emotional abilities. Decisional capacity involves a relative, as opposed to an absolute or perfect, degree of cognitive and emotional ability to make a particular choice. Assessment of capacity, therefore, should be focused narrowly on the issue of whether the patient is "capable enough" to make a particular decision at a particular time under particular circumstances. Categorical rules regarding the treatment of patients as being either with or without decisional capacity are seductive to clinicians in terms of their ease, efficiency, and predictability of application. Graber et al found that surgeons in one emergency context usually fall prey to this seduction, to the detriment of their patients and with potentially counterproductive results for their own legal risk management interests. Their article provides yet another5 example of perceived defensive medicine in reality undercutting important ethical principles (here, respect and compassion for the person) while failing to really protect the clinician legally. In many situations, common practice constitutes doing the wrong thing for the wrong reason. From a legal and ethical vantage point, I agree with Graber et al that policies and practices regarding the withholding of clinically indicated pain medication in the ED "for legal reasons" must be reconsidered. MARSHALLB. KAPP,JD, MPH Professor, Community Health and Psychiatry Department of Community Health Wright State University Dayton, OH References 1. Graber MA, Ely JW, Clarke S, et al: Informed consent and general surgeons' attitudes towards the use of pain medication in the acute abdomen. Am J Emerg Med 1999;17:113-116. 2. National Academy of Sciences, Institute of Medicine: Approaching Death: Improving Care at the End of Life. Washington, DC, National Academy Press, 1997 3. Symposium on Appropriate Management of Pain: Addressing the Clinical, Legal, and Regulatory Barriers. Law Med Health Care 1996;24:285-368 4. Appeibaum PS, Grisso T: Assessing patients' capacity to consent to treatment. N Engl J Med 1988;319:1635-1638 5. Kapp MB: Our Hands Are Tied: Legal Tensions and Medical Ethics. Westport, CT, Auburn House, 1998 207 http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The American Journal of Emergency Medicine Elsevier

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