South Florida Hospital News
Monday August 19, 2019
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May 2017 - Volume 13 - Issue 11

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Not Just an Ob-Gyn Anymore: Securing Informed Consents from Mentally Ill Patients

Approximately one-third of American women list their obstetrics and gynecology provider (ob­gyn) as their primary physician. Ob-gyns serve a wide range of women's health needs and serve as a transitional gateway during the critical onset of mental issues. Due in part to our changing healthcare system, both pre and post-Obama Care, there has also been a noticeable diminishment of services for mental treatment, and many women are adding responsibilities to ob-gyns by using them as the primary care provider and first responders for psychological treatment.

With mental illnesses being 2 to 3 times more prevalent in women that in men, ob-gyns must be equipped with the proper guidance to treat women with mental disabilities.
 
Mental illness in the United States is growing at an alarming rate. The National Survey on Drug Use and Health 2012 Report, estimated that the percentage of adults with mental illness (excluding substance use) was 18.6% among adults. With this alarming statistic, it is paramount that ob-gyns create and implement a mechanism to screen for mental illness in patients in order to avoid medical malpractice, avoid obtaining unauthorized consents to medical treatments and having an incapacitated individual signing contracts for services. Ob-gyns need to take preventive steps that will enable them to adequately treat patients with mental disabilities, while simultaneously protect them from legal suits for failure to obtain informed consents from patients.
 
Incapacity and mental illness, terms which are mistakenly used interchangeably, have very different meanings. Incapacity (defined differently by State) refers to a judicial determination that a person lacks the capacity to manage at least some of the person's property or to meet at least some of the person's essential health and safety requirements. For a patient to be incompetent, she must have been adjudicated by a Court that she is incompetent in some respect. In turn, a patient can suffer from mental illness yet be competent. When a new patient signs the initial intake forms and "consents" to medical treatments during a period where she was not able to understand the nature of what she has consented to or signed, those intake forms can be set aside and voided, if the right steps are not taken.
 
Ob-gyns must obtain informed consent for treatments or procedures from mentally challenged patients. Informed consent requires an understanding of decisions and their consequences, the patient must have all information related to the examination and procedure, the patient's participation must be voluntary, and the ob-gyn must be assured of the patient's competency and ability to understand the treatment.
 
Consequently, assessing whether a patient who suffers from mental illness has decision-making capacity is critical to determining whether she can consent to treatment and give informed consent.
 
Below are some simple steps that a practitioner can take to ensure that your practice is protected:
• Has the patient's intake questionnaire been updated to inquire as to mental illness and current psychotropic medications patient is currently taking?
• Has the patient given consent for the ob-gyn to discuss their chart with the patient's psychiatrist?
• Does the patient have a primary care physician, and if not, has there been a suggestion to have one or a referral?
• Does the patient have the capacity to sign intake forms and contract for services?
• If the patient acts incoherent or has listed they are taking psychotropic drugs, has a diligent search been made to determine if patient is guardianship or conservatorship?
• Is the patient capable of giving consent by demonstrating that she understands her healthcare decisions and their potential consequences?
 
While no single criterion can be used to determine if a patient has serious mental illness or diminished mental capacity, and a patient may be functional in many aspects, yet be unable to engage in the complex decision, then they cannot give the required medical consent to sign intake forms.

Liz Messianu, Esq., Partner, Lubell Rosen, LLC, can be reached at (305) 442-9046 or lcm@lubellrosen.com

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