Patient Consent for Emergency Care: Recent State Initiatives

By S. Van McCrary, Health Law & Policy Institute

The Texas House of Representatives is considering a bill that would have the effect of making consent to emergency medical treatment unnecessary in cases where conscious patients are determined likely to be suffering from a life-threatening injury or illness. Even if such patients expressly refuse treatment, emergency medical services (EMS) personnel will be able forcibly to treat them against their wishes. Exceptions are provided for in the bill in cases where the patient has executed a written directive relating to medical care and the provision of emergency treatment conflicts with the directive; or the patient has stated or implied an objection to treatment based on religious grounds.

Incidents where seriously ill or injured persons refuse emergency medical treatment are very rare but occasionally do occur. Two likely causes for such refusal are: disbelief by the person of the severity of illness or injury, or mental confusion or other mental incapacity (possibly temporary) as a result of the injury or illness. However, some persons simply might not want treatment for personal reasons, because they wanted to be left alone, or because they wanted to avoid the involvement of law enforcement. It is a well settled principle in medical ethics that competent adults have a right to refuse medical treatment, even if they may die as a result of such refusal. However, treating seriously ill or injured persons outside a hospital setting raises complicating issues--especially those of the patient's capacity to consent and the unavailability of prompt evaluation for decisional capacity.

At least eleven states have statutes regarding medical consent in emergency contexts either explicit or implied, but there is no consistency in the approaches of these laws. Florida law expressly addresses the issue of incapacitated persons who refuse consent and provides that such persons may be examined, treated and stabilized, and transported to a hospital by EMS personnel, and the statute also expressly provides that "unreasonable force shall not be used." (The current Texas bill does not address a patientís decisional capacity.) Arkansas, Mississippi, and Missouri have similar statutes allowing emergency treatment despite explicit refusal, but overriding refusal is only permitted in cases where there has been a material and morbid change in the condition of the affected person. A Nebraska statute provides that EMS providers shall not be liable for acting without consent, but limits its application to cases where the person is unable to consent or no authorized surrogate decision maker is available. Georgia expressly waives liability of law enforcement personnel acting in emergency contexts. Two other states have legislation pending at this time on emergency consent issues. Neither of these bills empowers EMS personnel to override an explicit refusal of emergency treatment.

Some arguments favoring enhanced authority to compel persons refusing emergency treatment include the following. First, an undetermined number of persons would receive badly-needed medical treatment, which they otherwise would have refused, due to mental incapacity caused by their illness or injury. Some of these persons might survive who otherwise would not. Some of these persons might have fewer complications from their illness or injury as a result of prompt treatment.

Second, in the event persons were rendered mentally incompetent temporarily, due to illness or injury, when they recovered capacity many or most such persons likely would be grateful that emergency treatment had been provided to them. Third, the benefit of saving the life of even one seriously ill or injured person would outweigh the costs of violating the right of unconsenting persons to refuse, and be worth the potential risks of civil liability. Fourth, EMS personnel would be able to perform their duties with fewer complications from persons refusing treatment. Fifth, attempts to evaluate the mental capacity of patients outside a medical facility would not be necessary.

Arguments against enhancing power to compel patients to comply with EMS personnel include the following. First, competent persons treated involuntarily would have their constitutional right to refuse treatment violated. Some of these persons might die even if treated. Some of these persons might be harmed further by the medical treatment provided.

Second, law enforcement and EMS personnel would be subject to potential civil liability for battery and civil rights violations, and possibly criminal battery, for coercion of unwilling persons into receiving unwanted medical treatment. If such personnel were granted immunity from such suits, there would be a risk of abuse of the prerogative to impose involuntary treatment in terms of arbitrary enforcement, or enforcement according to the personal beliefs and values of the particular EMS or law enforcement personnel, which might differ substantially from those of the patient.

Third, the involuntary treatment of a patient during transport by EMS personnel might have unanticipated adverse effects on the patientís treatment upon arrival in a hospital, especially if law enforcement personnel were required to enforce the involuntary treatment of a person not suspected of criminal activity. Might hospital physicians and nurses react negatively to the news that a patient was brought into the facility by law enforcement personnel, or assume that criminal activity was involved?

Fourth, determining the legitimacy of a claim of religious objection to treatment is likely to be difficult under the extreme time pressures of emergency care. Who should establish the criteria for determining what sort of religious claims are adequate to qualify for the statutory exemption, and what sort of training should EMS personnel undergo in order to be qualified to make such a determination?

Fifth, determining whether emergency treatment is in conflict with a written advance directive is likely to be difficult under the extreme time pressures of emergency care. Who should establish the criteria for evaluating written advance directives in the field, and what sort of training should EMS personnel undergo in order to be qualified to make such an evaluation?

Considering these arguments leads me to conclude that a middle ground approach is the best statutory remedy regarding this issue. Such an approach would allow involuntary treatment by EMS of persons who are believed to be mentally incapacitated as a result of the injury or illness, or who are otherwise unable to communicate. However, such involuntary treatment should be constrained by a provision like that in the Florida law requiring that unreasonable force shall not be used.