Surgery delayed as patient appeals competency finding

A column analyzing the impact of recent court decisions on physicians

By Amy Lynn Sorrelcovered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column. Posted April 4, 2011.

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The Montana Supreme Court in March halted a judge's order compelling a cancer patient to undergo a radical hysterectomy, allowing the woman time to appeal a determination that she was not mentally competent when she refused what physicians said could be a life-saving procedure.

The lawsuit pits patients' constitutional rights to refuse medical treatment against interventional measures intended to ensure their well-being when they are incapable of making such decisions on their own.

Experts say the case could help clarify standards for competency determinations in Montana and have implications elsewhere for situations that often present physicians with tough medical ethical decisions.

"As our population ages, this is an area of law that is going to have more and more relevance in people's lives. And having a clear definition of what the law allows as far as intervention in these circumstances will be helpful," said Beth Brenneman, a staff attorney for Disability Rights Montana, an advocacy group that plans to file a friend-of-the-court brief.

The patient -- identified in court documents only as L.K. -- was diagnosed with cervical cancer, but she refused for religious and personal reasons the hysterectomy that her physicians recommended.

On Sept. 2, 2010, one of L.K.'s physicians sent a letter to the Missoula County Attorney's Office expressing concern about the patient's competence to make medical decisions, according to court documents. A nurse sent similar letters in September and October questioning L.K.'s statements that it was "against her religion" to have the surgery.

In November 2010, a petition to determine incapacity and appoint a temporary medical guardian was granted by a Missoula County District Court. A judge appointed a temporary guardian, L.K.'s brother, who signed a consent form in February authorizing the hysterectomy. The surgery was set for March 3.

Competency questioned

At a March 1 court hearing, a psychiatrist from Montana State Hospital testified on behalf of the state that the woman was having religious delusions that God had cured her and that those delusions interfered with her ability to make informed medical decisions, court records show.

Another staff physician at State Hospital testified that L.K.'s cancer was in stage 1 and that she had an 85% chance of dying within three years without treatment.

The doctor said L.K. did not understand the risks of dying without the surgery and that while possible, it was not probable that she could have children at her age as she desired. The court record does not state L.K.'s age.

But L.K. testified that she understands she had been diagnosed with cancer and that she could die without the hysterectomy.

"L.K. repeatedly stated that she merely wanted to be able to make the decision for herself and that she may at a later date change her mind and decide to go ahead with the recommended treatment," according to court documents.

"She testified that she wants to have a child and believes God wants her to as well."

L.K.'s attorney argued that what the state characterized as delusions were the woman's deeply held religious beliefs. However, the district court found that L.K. lacked the capacity to make her own medical decisions and ordered the procedure to take place as scheduled. The judge, reasoning that an appeal could further endanger the patient, denied L.K.'s request to put the surgery on hold while she appealed the competency determination.

L.K. then filed an emergency petition asking the state Supreme Court to suspend the order, arguing that the district court proceeding was "causing a gross injustice and involves constitutional dignity and religious freedom issues of statewide importance."

Justices agreed and put the surgery on hold in a March 2 ruling.

In addition to depriving L.K. of an adequate legal remedy, the high court found that the district court "violated L.K.'s right to freedom of religion by treating L.K.'s religious beliefs as irrational and violated her rights to personal autonomy and dignity by authorizing the forced removal of L.K.'s reproductive capacity and by depriving L.K. of the power to make decisions regarding her own body and medical treatment."

Montana law affords dignity, privacy and religious rights to refuse even life-saving treatment, justices noted, and those rights may not be overridden unless the person is incapacitated -- an issue that had not been fully adjudicated.

The state public defender's office, which represents L.K., declined to comment. The Missoula County Attorney's Office did not respond to calls for comment.

Though it is ultimately up to a judge to decide a patient's competency, an initial responsibility often falls to the treating physicians or hospital, said Alan Meisel, director of the University of Pittsburgh's Center for Bioethics and Health Law.

"If doctors have reason to believe a patient lacks decision-making capacity, they should do something" to bring it to the attention of appropriate authorities, he said. "It could be considered an abrogation of their duty to ignore it."

Similarly, when an issue is reported, the state has an obligation to investigate the matter, he said. However, simply disagreeing with a capable patient's decision to refuse treatment is not a valid reason to challenge his or her competency.

The American Civil Liberties Union of Montana plans to file a friend-of-the-court brief over concerns that court-ordered interventions, if not handled properly, could undermine patients' privacy rights in choosing their medical care -- regardless of the motivation, religious or otherwise.

Standards for determining capacity vary from state to state and such cases are decided individually, said Brenneman, of Disability Rights Montana. At minimum, competency "should be based on whether or not a person can understand a decision that needs to be made and the consequences of that decision, not whether or not people agree with that decision," she said.

For example, the patient was aware of her medical condition and did not deny it, factors Brenneman called significant.

"These issues really need to be clarified [by the court] to make sure people don't feel unfairly characterized, physicians know what their role should be, and the legal profession knows what the law is," she said.

Amy Lynn Sorrel covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column.

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