THE INCOMPETENT PATIENT

The legal flexibility of the emergency exception to the need for consent does not extend to nonacute care situations. Once a patient is out of the emergency room and onto the ward, the application of the emergency exception is severely limited. This is not unreasonable, since the implied consent to treatment will encompass most short-term care needs that arise from sudden shifts in the patient's condition. Once a patient no longer needs emergency treatment but is not able to consent meaningfully to medical care, the health care provider must seek consent from a legally authorized substitute.

There are two classes a persons who can legally consent to medical care for an adult. The first is a person whom the patient has appointed with a properly drawn power of attorney to consent to medical care. The form of this power of attorney will vary from state to state; thus counsel should be consulted if there is a question about the validity of the particular form the patient has chosen. The power of attorney must be signed before the patient becomes incompetent, though in many states it remains effective after incompetency. The person authorized to consent should never be a member of the health care provider team. This is especially important if the power to consent is signed at the insistence of the health care provider. The second class of persons legally authorized to consent to medical care for an adult are court-appointed guardians.

There is a growing concern over the involvement of the courts in medical decision making.l This concern stems from court decisions in cases involving either terminally ill adults or the medical care of minors. The cases involving terminally ill adults are usually battles over who has the right to decide what care the patient receives. The problem usually arises because one party (often representing the patient's own wishes) wants to discontinue, or prevent the use of, extraordinary means of prolonging life. The opposing party wants all methods of life support used. The health care providers should insist that these disputes be taken to court as soon as possible. Unless the patient has appointed a person to consent by a proper power of attorney, there is no one from whom the health care providers can obtain consent to medical care for the patient. The health care provider may want to talk with relatives and solicit their opinions, but in no way will their consent affect the health care provider's liability for rendering unauthorized care. The chance of being success fully sued is not very great in these situations, but the problem of being left with hug unpaid medical bills is an important reason to avoid conflicts about what care is rendered to a patient.

If all the relatives and friends agree on the treatment, they will be prevented from later suing the hospital for honoring their wishes. This doctrine, called estoppel, accounts for the absence of litigation in these types of cases. The patient is not a litigation threat even if care was rendered against the patient's wishes. If the patient survives, the court will be loath to assess damages against a health care provider for saving a patient's life.

The situation most likely to pose a litigation threat involves a dispute among relatives about the care to be rendered to the patient. Since none of the relatives can legally give consent for the patient, all of the care rendered the patient will technically be a battery. This can be a high liability situation if there is evidence that the patient refused care (see the discussion of the "living will" in the following section) and suffered for a prolonged period because the patient's wishes were ignored.

The most dangerous situation involves a decision by the health care providers not to provide extraordinary care when a relative wants the care rendered and the patient has not refused it. While there is no legal requirement to use heroic measures to treat a patient if the patient refuses them or will not benefit from them, there may be a requirement to use heroic measures if the patient requests them. If the health care providers do not feel heroic measures are appropriate, the situation will require a judicial resolution. It could be difficult to defend a suit based on the withholding of medical care. The damages would probably be small, however, because it would be unlikely that the care would have anything more than lengthen the patient's life by a short period.

The most common problem facing public of Veterans Administration hospitals is the patient without family or friends. If this patient becomes incompetent, there is a tendency to just continue treatment without having a guardian appointed. This is undesirable legally because of the lack of effective consent to therapy. It is undesirable legally because of the lack of effective consent to therapy. It is undesirable administratively because of the reimbursement problems involving a patient who cannot request or authorize third party payment of claims. However, finding someone to act as guardian may be difficult (although a minister or member of a service group may volunteer), and it may be necessary to leave it to a court to select a guardian.

The patient who is made temporarily incompetent by the therapy required to treat an illness does not need to have a guardian appointed. If a patient has properly consented to the course of medical treatment, that consent will not be revoked by a temporary lapse of competency. A patient who, while temporarily incompetent, has a severe complication requiring radical therapy could be treated under the emergency exception. The acute care patient needs a guardian only if the patient becomes chronically ill and incompetent.