Again, this decision changes absolutely nothing, but still, it wound me up and placed me squarely in that Poughkeepsie nurse’s shoes; because I’ve been there before, many times. It’s from that emotional standpoint that I began writing this piece, which was vastly different from what it is now, thanks to a conversation with Edie Brous, RN, Esq., an attorney who concentrates her practice on nursing licensure and malpractice issues. A prolific author and speaker, Brous is—among her many other responsibilities—the legal editor for the American Journal of Nursing, which is how our paths crossed several years ago. Cutting through the clutter of my emotional response to the Court decision, she helped to clarify not only the case law, but also my own beliefs about why I think this was a case worthy of some media attention and analysis for the general public. She suggested that the case might be relevant not because it changes anything, but because it brings to life the “paternalism versus autonomy” tug-of-war healthcare providers wage all the time. Said Brous:
Providers must respect the legal rights of all patients and that includes those who present with mental health or intoxication issues. We can’t take a paternalistic approach and hold someone against their will because that’s what we think is best for them. We assess them to determine if there is immediate risk of injury to themselves or others, and the decision to involuntarily detain them is based upon that determination alone. If the determination is that the patient does not pose an immediate risk, we then explain the risks, benefits and alternatives of leaving against our advice and document that conversation. But patients have the right to make their own decisions about staying or leaving. The laws regarding patient rights reflect a culture that values autonomy and respect for a patient’s ability to make decisions regarding their own health care.
And that’s the pivotal question in this case: Did the physician and/or hospital have a duty to protect this patient from himself by keeping him there against his will? According to the Court of Appeals’ decision, absolutely not, for a few reasons. First, his clinical condition indicated that, at that moment in time, he was not on the verge of homicidal or suicidal behavior. Second, he came into the hospital on his own accord (as in not carried in by a police officer or EMT). Third, detaining him against his will, given the satisfaction of the first two conditions, would amount to wrongful imprisonment.
It’s important for people to know their rights and what they might expect if they or their family members find themselves in similar situations—and reporters in New York might have used this case to educate readers in that regard. This was a missed opportunity for journalists to illuminate for their audiences some of the moral and ethical complexities of our heavily regulated healthcare environment and how those complexities impact our approach to public and mental health.
We’ll never know the details of what exactly happened that night at St Francis, who said what, how Kowalski looked to the nurse when she last saw him in the hospital. I imagined myself right there, in the thick of it: Assessing the patient’s physical and cognitive status as he stood before me, announcing he was leaving, would it be the letter of the law or my own clinical judgment that would prevail? Brous asked me why the two would ever be in conflict: “Would you force medication down someone’s throat because your clinical judgment was that they needed the medication?” Well, no, but sometimes I care enough to want to do that, even while knowing it’s not a “by any means necessary” approach that we’re meant to take.
Because, let’s face it, those moral and ethical complexities—not to mention the CYA culture that’s become pervasive in healthcare—govern what we do day-to-day, just as much as does the law. If it were only as simple as described in this haiku, offered by attorney/blogger Michael Pospis in his summary and analysis of the case:
Drunk patient gets hurt
Should not have left hospital
No duty, no win.