Saba Syed, MD
Director of Consultation and Liaison Psychiatry, Olive View-UCLA Medical Center.
Clinical Professor, UCLA.
Bioethics Committee Chair, Olive View-UCLA Medical Center.
Consultation-Liaison, Olive View Medical Center, Los Angeles, CA.
Dr. Syed has disclosed no relevant financial or other interests in any commercial companies pertaining to this educational activity.
CHPR: In your current roles, you grapple with complex clinical situations, and one that is particularly difficult involves the treatment of pregnant mentally ill women who lack capacity to make decisions regarding obstetric care. Can you tell us how you approach these patients? Dr. Syed: We start with understanding that a patient doesn’t necessarily lack the capacity to make medical decisions just because they have a mental illness. Even floridly psychotic or manic or depressed patients may still be able to engage in an informed risk-benefit discussion with the OB-GYN. But when a mentally ill patient is too impaired to participate in that discussion, then we have to formally assess their capacity.
CHPR: What do you look for when you do the capacity assessments? Dr. Syed: First, is the patient able to communicate a consistent choice? It’s OK for patients to change their mind once or twice, but if they are so ambivalent or vague that it interferes with our ability to move forward with the treatment planning, then they may be determined to lack capacity. Second, can the patient verbalize understanding of the relevant information, including their diagnosis, benefits of the recommended treatments, potential risks, and available treatment alternatives? Third, are they able to appreciate that the discussion relates to them? If they choose to not follow our treatment recommendations, do they understand the possible harmful consequences to them or to the fetus?
CHPR: These are very helpful. Anything else? Dr. Syed: Yes, the fourth and final thing is: Are they using a rational thought process to come to that decision? We recently saw a pregnant patient with schizophrenia who believed the OB-GYNs were lying when they told her she needed an obstetric intervention, and she was sure they planned to steal her baby—so even though she understood parts of the risk-benefit discussion, she was not using a rational thought process to reach her refusal. It’s OK if a patient refuses a procedure because of religious or cultural reasons, even if their decision does not seem reasonable to us, as long as it’s appropriate in their social and cultural context.
CHPR: Do you require the patient to demonstrate the same level of understanding regardless of the risk of the procedure? Dr. Syed: No, capacity is assessed on a sliding scale. For a decision that has high treatment benefit and low treatment risk—for example, consenting to an ultrasound—it’s enough for a patient to demonstrate just a basic understanding of the process. But if the treatment risk is high—for example, a C-section—and the patient is consenting to that treatment, she has to demonstrate a deeper understanding.
CHPR: Right. That’s interesting. We often encounter mentally ill pregnant patients who accept C-sections, but don’t seem to fully understand the risk-benefit discussion. Dr. Syed: In those cases, the patient is only able to provide an assent, meaning she is agreeable to it, but is not able to provide an informed consent. We would need to obtain the consent from the surrogate decision-maker.
CHPR: How do you choose a surrogate decision-maker? Sometimes there are many family members who might serve in that role. Dr. Syed: It depends on your state. In some states, certain family members take precedence over others. In California, we don’t have any hierarchy, so any family member or close friend can act as the surrogate decision-maker.
CHPR: Do you have any tips for handling situations when family members or friends disagree with one another about what decision to make? Dr. Syed: It’s helpful to remind them that it’s not about what they want for the patient; it’s about what the patient would want if she had the capacity to make the decision. If the family is still not able to come to a consensus, then we use our clinical judgment and pick the family member who is closest to the patient and who is making a decision that seems sound, is in the patient’s best interest, and is in line with the medical providers’ recommendations. We can also consult the bioethics committee in these situations.
CHPR: What if there is no next of kin? Dr. Syed: In those cases, we declare that the patient is unrepresented, and the hospital’s bioethics committee convenes a multidisciplinary committee called the “unrepresented patient committee,” which then becomes the surrogate decision-maker. This committee consists of bioethicists, primary care providers, nursing and social work staff, and a chaplain, who also serves as the patient’s advocate. Other states may have a different process, but this is what we do in California, and it’s an approach supported by the bioethics literature.
CHPR: How can we be sure there’s no next of kin? Sometimes we’re not able to obtain a good history from a very ill, psychotic patient. Dr. Syed: Right, that can be a problem, so the treatment team’s social worker needs to do a due diligence search for next of kin—looking through old medical records, even searching online for any names and contact information of possible family members. We also contact the public guardian’s office to make sure the patient does not have any conservatorship or legal representation.
CHPR: Do you ever encounter situations where the treating clinicians disagree about whether the patient has the capacity to make medical decisions? Dr. Syed: Yes, sometimes the primary team and the consulting psychiatry team disagree regarding the patient’s capacity. Any licensed physician is capable of assessing the patient’s capacity, and the primary team does not have to follow psychiatry’s recommendation. However, in the case of a disagreement, it is important to have a dialogue between the services to understand each clinician’s reasoning and to come to a mutually agreeable resolution. It is also helpful to get a bioethics consultation. At our hospital, we prefer to evaluate capacity in collaboration with the primary team to ensure that we assess the patient’s level of understanding together. This also provides us an opportunity to give the patient detailed information about her diagnosis and treatment in simple and jargon-free language. The primary goal of this approach is to optimize the patient’s autonomy and improve communication between the patient and the primary team.
CHPR: Why would the psychiatry consult-liaison service be asked to do capacity assessments in the first place, given that any physician can perform them? Dr. Syed: You’re right that any physician should be able to do a capacity assessment. It’s basically the same process as obtaining informed consent. You go over the treatment options, the alternatives, the risks and benefits.
CHPR: But for some reason, psychiatry consult-liaison services often get asked to do capacity assessments. Dr. Syed: There’s a misconception that only a psychiatrist can assess capacity. In our hospital, we are trying to change the culture. We have done a lot of in-services for various departments, and any time we get consulted for a capacity assessment, we try to go with the primary team so that we can demonstrate how to perform that assessment. For complex capacity assessments, it is reasonable for psychiatry to conduct the assessment since we have more expertise in this area. However, for simple capacity assessments, we expect our primary or consulting providers to conduct and document the assessment.
CHPR: Do these capacity assessments get repeated every day or with every encounter with the patient? Dr. Syed: The situation will dictate how often to repeat the assessment. If a patient is psychotic due to substance intoxication, for example, then you can assume they will clear up quickly and you would repeat the capacity assessment in a day or two. But somebody with a chronic mental illness might take weeks to respond to treatment, so it wouldn’t make sense for us to repeat the capacity assessment for the same treatment every day. It depends upon the clinical presentation and the patient’s progress.
CHPR: Do you need to reassess capacity for each new treatment decision? Dr. Syed: Definitely. For every new treatment decision, you have to do a separate capacity evaluation. Even if a patient lacks capacity for one specific decision, that doesn’t mean she lacks capacity for all medical decisions.
CHPR: Right. Let’s go back to the pregnant patient: What happens after the baby is born? Who makes decisions about the baby? Dr. Syed: By default, the mother is the surrogate for the baby, but if we determine the mother lacks capacity to make reasonable decisions for the baby, then somebody else will step in. So, if the patient is mentally ill and we have concerns about her capacity to make reasonable medical decisions for the baby, we get the department of children’s services involved to determine who will make decisions for the baby.
CHPR: You start working on these questions as early as possible, rather than waiting until the baby’s born, right? Dr. Syed: Right, we recommend that you start engaging in the capacity or the consent processes early. We don’t always know when a pregnant woman will go into labor, and we don’t want to be figuring out in the middle of the night who is consenting for the patient and who is consenting for the baby.
CHPR: If one of those middle-of-the-night emergencies does come up, how do you handle it? Dr. Syed: You can use the emergency exception if there is an emergency to the mother, but you cannot proceed under the emergency exception if the emergency is to the fetus because under the law the fetus is not a separate patient. Ethically, as physicians we have a responsibility to the fetus, but legally, the fetus is considered part of the woman’s body. So, we can provide an emergency C-section if the mother is in distress, but not if the fetus is in distress. In such cases, you should obtain a bioethics consult or guidance from legal counsel.
CHPR: The legal status of the fetus varies by state, correct? Dr. Syed: Yes, certain states view the fetus as an independent person even before birth, but in California the fetus is not considered a separate patient until they are born.
CHPR: Can you tell us more about the emergency exception? Dr. Syed: The emergency exception applies if we can demonstrate that the patient lacks capacity, there is an emergent situation, and we can’t locate a surrogate decision-maker in time. For example, let’s say that a woman is pregnant and the ultrasound shows fetal distress. An immediate C-section is necessary to save the baby’s life. This is a situation where there is a risk of disability or death without immediate treatment. In such a case, the OB-GYN documents these conditions in the medical chart and can proceed with the medical intervention that is in the patient’s best interest under the emergency exception to informed consent rule.
CHPR: We have sometimes obtained two physician signatures in those situations. Dr. Syed: Right, but the custom of a “two-physician consent” does not stem from any medico-legal requirement. The idea behind the two-physician consent comes from risk management so that, if you get sued, you can show that you were following community standards and doing what any physician in the same situation would have done. But as long as you document that the patient lacks capacity, it’s an emergent situation, and there is no surrogate available or you don’t have time to look for a surrogate and the treatment is in the patient’s best interest, you don’t need a second physician concurring with you.
CHPR: After the delivery, how do you handle decisions about contraception with a woman who doesn’t clearly have capacity? Dr. Syed: We look at the treatment risk versus treatment benefit. If the treatment risk is low and treatment benefit is high—eg, oral contraceptive pills—and the patient can demonstrate simplistic understanding of how contraception would benefit her, then she may be capable of providing an informed consent. But irreversible contraception methods like sterilization are a different story. You can’t talk about sterilization in an acute inpatient setting because the patient would need a higher level of understanding to be able to engage in that kind of discussion.