A 23-year-old female drug abuser presents with a history of malaise, generalized weakness, and fevers for the past month. She uses heroin intravenously and several other drugs intermittently.
She has a grade 3/6 holosystolic murmur at the right sternal border (a moderately loud heart murmur) and conjunctival petechiae.
The physician strongly suspects that she also has subacute bacterial endocarditis (a potentially lethal infection of the heart valves, requiring prolonged intravenous antibiotics and, sometimes, surgery to affect a cure).
He informs the patient that she needs to be admitted to the hospital.
She refuses, claiming that there is “nothing wrong that some (oral) medicine at home won’t cure.” Although the physician cannot be absolutely sure of his diagnosis without positive blood cultures, he believes that the diagnosis is correct.
He wants to say, “You are going to die if you don’t get admitted and treated!” Is this the proper approach? Can this patient make an informed decision? What if the patient says, “So what?” Is that grounds for involuntary commitment?
I analyze the case as primarily one of a person with a serious problem of addiction and a potentially lethal infection of the heart valves needing immediate and sustained attention.
The objective is unquestionably hospitalization. The patient’s comment that an oral medication will suffice indicates that she is probably ignorant of medicine and of her medical condition. She obviously fears the prospect of hospitalization.
As a drug abuser, she likely will continue to protect her access to drugs by an armada of rationalizations that would keep her out of a confined circumstance such as the hospital.
It seems unlikely that mere persuasion will lead to an admittance, although persuasion certainly should be the first step taken by the health professional. If persuasion fails, as I think is virtually certain, what should be done and why?
COMPETENCE AND INFORMED CONSENT
A question preliminary to action is how to conceive the patient’s ability to reason and decide. In particular, is she competent to give an informed consent?
This question requires brief attention to the concepts of competence and informed consent and their rules in the analysis of this case.
Competence judgments function to distinguish between persons from whom consent should be solicited and those from whom consent need not or should not be solicited.
These judgments are not medical judgments but rather are normative judgments whose underlying moral rationale is rooted in the concept of autonomous persons: If a person is autonomous and situated in a context in which consent is appropriate, that person and not some other should make the choice.
There is no consensus definition of competence, and we must always specify that we are investigating whether the person is competent to perform the specific task at hand.
A person can be competent to perform some tasks and incompetent to perform other tasks. For example, some patients are capable of understanding simple low-risk procedures but not more complicated high-risk procedures.
Persons can also be more-or-less competent to decide, to the extent they possess a greater or lesser level of the abilities required to make the decision.
Our 23-year-old drug abuser is certainly competent to do some things, for example, to use heroin intravenously. Whether she is competent to freely decide whether she wants to be the kind of person who uses heroin intravenously is, however, very much in doubt.
This would require that she be able to reflect on her motivations to take the drugs she takes and decide freely whether she accepts those motives rather than others.
I doubt that she is capable of this kind of reflective decision, because of the power of the addiction. Even if she could frame her own conception of whether she wants to accept or identify with her preferences and motivations, I doubt that she would be free of the control of her addiction in giving an answer.
In addition, I suspect she lacks and cannot obtain, even upon consultation with the physician, the kind of information necessary for making informed, deliberative decisions about health care, hospitalization, and the like.
I do not mean to offer this portrait of decision-making capacity as a general characterization of patients, but the facts before us about this patient suggest that she fits the description.
I am here accepting the controversial view that judgments of a person’s competence to consent should be affected by the magnitude of what is at stake for the person.
If the risks of a medical intervention are low, whereas the potential gain in quality of health is high, as is the case here, we should minimize the importance of any questionably competent person’s refusal, just as we always do with children.
Should a child or the young drug abuser before us choose rather than refuse the intervention, we usually do — with good reason, in my judgment — relax our criteria and say the person is competent to make the decision.
It is not an inconsistency or sham to recognize different thresholds for refusals and consents, because competence judgments are connected by their very nature to complex judgments about experience, maturity, capacity for understanding, responsibility, and the person’s welfare.
More generally, as an intervention would increase the level of risks or benefits for persons, the level of ability required for a judgment of competence to choose or refuse the intervention should be increased; and as the consequences for well-being become less substantial, the level of capacity required for competence should be decreased. This is a general viewpoint that I would relentlessly apply in the case before us.
FREEDOM AND MANIPULATION
Clinically, although not legally or practically, an easy way out in this case is to seek involuntary commitment.
Judgments of incompetence have often functioned to label patients, so that a train of coercive events of this sort is potentially set in motion, and to strip them of rights to decide about their future; suddenly information is provided to a third party authorized to decide on the incompetent’s behalf.
However, I would not endorse the strategy of involuntary commitment for this patient, because she does not seem to have the requisite level of incompetence. Selection of the abilities and the levels of thresholds of the abilities such a person needs is, of course, a normative issue.
The choice intrinsically involves balancing moral principles such as respecting the preferences of the person against the moral requirement that the physician benefit the patient insofar as possible.
Any physician treating our 23-year-old woman is inescapably confronted with the choice between how much the person’s preferences and freedom are to be respected and how much they are to be restricted by some form of influence aimed at therapeutic benefit.
There is, we might say, an inescapable evaluative trade-off; one cannot maximize or even act on every important value.
Because of my view of the patient’s autonomy I would, in this case, emphasize therapeutic benefit rather than respect for expressed preferences.
Although I would strike the balance in the direction of therapeutic benefit in this case, I would not go to the extreme of using a coercive intervention such as involuntary hospitalization.
Any form of coercion (physical force or a credible threat of unwanted and avoidable harm so severe that the person is unable to resist it) seems to me an inappropriate, imbalanced approach.
Instead, I would use a less damaging form of influence: I would use manipulation by altering the patient’s perceptions of choices or perhaps modifying the actual choices available to the person.
That is, I would try to get the patient to do what is in her medical best interests by manipulative devices. (Remember, I am assuming that persuasion will fail.)
But what manipulative means should be selected? First, I would use what is sometimes called psychological manipulation, that is, the influence of a person to a desired behavior by affecting mental processes other than those involved in understanding. Flattery, strong sales pitches, and the like can have such an effect.
I would, for example, minimize the risks attached to any testing or procedure until the patient seemed to be reaching a point of psychological commitment to the hospitalization.
Then, and only then, would I be more forthcoming about the risks. This strategy is often used in sales, where the idea is to withhold information in an intentionally ordered interaction so as to achieve initial commitment; the withheld information is finally provided, however, before there is an irrevocable commitment.
A modest risk is at work in that persons perceive their decisions to be volitional, although they have been very carefully led to this point.
Our 23-year-old patient, in her weakened and fevered condition, may well be subject to influence by this form of psychological manipulation.
Because I regard the patient’s medical circumstance as potentially very dire, I would also not hesitate to use strong and emotional language in any exchange or presentation. “You are going to die” would be a mild form of the language that might be chosen.
Second, I would also use what is sometimes called informational manipulation, that is, a deliberate act that modifies a person’s perception(s) of the situation by a modification in the person’s beliefs.
This would involve keeping the person in partial ignorance, possibly by producing a state of confusion.
This is not a matter of lying, but it is a matter of withholding information such as facts about the risks of diagnosis and therapy.
There is a venerable tradition in medicine of intentionally withholding information from patients in order both to keep them in an optimistic frame of mind and to instill hope. I am suggesting a use of this time-honored approach for this patient in order to achieve the goal of hospitalization and therapy.
If it is said that I am “engineering consent” by trading on her fear and ignorance, the answer is that I am and intentionally so.
I am trying to induce compliance by a controlling manipulation, much as physicians daily use language such as “it will be uncomfortable for a moment,” when, in fact, “it” will be highly painful for a considerable duration.
Another dimension of manipulation is the use of one’s position as an authority in order to secure compliance. A person’s role can carry with it expectations for behavior that function to constrain another’s responses. This may occur because of social or institutional arrangements.
Hospitals and physician’s offices fit this description in the roles they assign both to physicians and to patients.
A patient is placed in a position of relative powerlessness, with authority figures such as physicians in complementary roles of power and control.
I would not hesitate to use the role conventionally assigned to the physician to produce whatever leverage was necessary to induce this patient to “voluntarily” seek hospital admission.
If it turns out that these various manipulative devices fail, I would, nevertheless, not turn to coercion. One has to draw the line of permissible intervention and control somewhere, and I am sure many will think I have already overstepped it.