Legal Issues Involved In Drug Use For Head Injury

Kenneth I. Kolpan, JD (Editor)

The increasing use of drug therapy for the head-injured patient is discussed elsewhere in this issue. As this expanded use of drug therapy for the head-injured patient grows, so do the legal requirements protecting those with head injury. Previous volumes of the Journal of Head Trauma Rehabilitation have discussed the issue of informed consent when drug treatment is offered to the head-injured patient; a second took at this legal principle is now warranted.

Facilities that treat head-injured patients obtain informed consent from the patient, family, or legal guardian on admission. The general consent form, albeit valid, typically covers the customary and usual medical treatment only at that facility. The form is not intended to include surgical procedures. If surgical interventions are required, then additional consent for those specific procedures must be obtained.

When drug therapy, including antipsychotic medication, is used for the head-injured patient, health care providers must know that the general consent form may be inadequate to legally, cover the facility and its employees. A case example follows:

A young man who had been in an accident six years ago was being treated at a facility for head-injured patients. Consent for his treatment had been obtained on admission. His treating physician recommended a surgical procedure. Recognizing that the patient was unable to consent to the proposed surgery because he was incompetent, the physician asked the local probate court to appoint a guardian with the authority to consent to the surgery. The physician also wanted to add antipsychotic medications to the patient's therapeutic regimen. The court appointed a guardian ad litem to investigate the matter, ordered the physician to submit a treatment plan, and directed the physician to follow the legal principles of Rogers v Okin.

The Rogers decision expanded the right of self-determination to patients who are deemed incompetent. Incompetent patients still have the right to give informed consent before any treatment, including antipsychotic medication, is given; only the manner in which the consent is given differs. Providers should recognize that failure to obtain informed consent from a patient for the administration of psychoactive drugs is a basis for finding the facility or its employees negligent (if the patient is subsequently, injured from the use of the drugs ). This is true for incompetent patients as well. When drug therapy is offered, patients must he told about the risks, benefits, side effects, alternative treatments, and likely result if the proposed treatment is not given. When a patient is incompetent and the drug of choice is an antipsychotic medication, the legal requirements are more stringent:

The patient must be adjudged incompetent to make treatment decisions.

The court must determine whether or not the incompetent patient would consent to the proffered treatment under the substituted judgment principle

The court must make the original substituted judgment decision according to a substituted judgment treatment plan.

The judge must base his or her substituted treatment decision on six factors: the expressed preferences regarding the treatment, the patient's religious convictions, the impact of the decision on the patient's family, the probability of adverse side effects, the prognosis without treatment, and the prognosis with treatment.