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Refusals: Determining Capacity


Patient refusals are a part of the job and one that should not go unrecognized. At some agencies the rate of refusals is around 5-10%, while at other agencies, I've seen it go as high as 35% over a given calendar year. The tasks and associated documentation around these events can seem mundane, but the assignment requires your full attention, and you should never cut corners out of convenience.


I wouldn't call EMS a heavy litigated industry, but if done incorrectly, seeking or completing patient refusals can be risky business. I believe it's important to note that all patient refusals are NOT created equal. Some events and clinical circumstances are more high risk than others, but our general approach should be disciplined and somewhat methodical when possible.


So, first things first -- can they legally refuse? To answer this question, we have to determine mental capacity. Mental capacity is the ability of a person to make a specific decision at a required time. We can't forget that the patient's decision-making ability to give consent or refuse treatment/transport is both context and time specific. Impairment can come in multiple forms and many times can interfere with a patient ability to make sound and logical decisions.


Capacity is related to competence, but they are in fact different...


Competence is usually a global assessment and legal determination made by a judge in court. Capacity, however, is a functional assessment AND a clinical determination completed by a clinician with is familiar with the patient's case. Four key components have to be addressed in a methodical way as part of an evaluation:


  • Communication - can the patient express a clear treatment choice (opt-in or opt-out)

  • Understanding - can the patient recall conversations about treatment, is their attention span or memory negatively affected.

  • Appreciation - can the patient appreciate the illness/injury and associated outcomes will directly affect them?

  • Rationalization/Reasoning (arguably the most important - this is many times forgotten as part of the assessment) Can the patient weight the potential risks and benefits of their decision? Can they understand consequences?

Below is an image that summarizes an act that was passed nearly 20 years ago in the United Kingdom, and I think it provides us a nice framework centered on the patient's point of view around their own decisions.


Obtaining a refusal is more than just asking about their name, birthday, and who the sitting president is? These questions don't require a lot of high-level thinking. Our job is to provide them with relevant information about their current condition, so they can make a more informed decision for themselves. An additional question I will sometimes ask during high-risk refusals is the following...


What's the worst thing that could happen to you if you decide to refuse?


This question should require them to pause and give a response that's not simply canned or memorized...like their date of birth. This does two things: it helps us determine their ability to rationalize and understand consequence. It also helps us maximize our patients' abilities.


Outside of the critical dialogue, it's also a good practice to complete a full exam including vital signs and document everything in an accurate, objective and concise manner. Determining that a patient lacks capacity and restricting his or her autonomy require clear and convincing evidence that the patient's decision will cause unintended and irreparable harm. If there is uncertainty after conducting a full capacity evaluation, the final judgment should err on the patient's side. Each state has its own definition of capacity. Although laws are similar among states and incorporate the four elements of capacity, there may be slight differences.


August 7, 2023

Author: Joshua Ishmael, MBA, MLS(ASCP)CM, NRP

Pass with PASS, LLC.

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