What is the management approach for an incapacitated adult requiring a legal hold?

Management of Legal Hold for Incapacitated Adults

For an incapacitated adult requiring detention in the hospital, establish a "medical incapacity hold" through hospital policy rather than attempting psychiatric civil commitment, as civil commitment statutes are designed for mental illness and do not authorize detention for medical conditions or involuntary medical treatment. 1

Initial Capacity Assessment

Before implementing any hold, you must formally assess and document incapacity using the four-component test:

• Understanding: Can the patient comprehend information about their medical condition and proposed treatment? 2
• Retention: Can they remember this information long enough to make a decision? 2
• Weighing/Using: Can they use or weigh the information as part of decision-making? 2
• Communication: Can they communicate their decision by any means (verbal, sign language, blinking, hand squeezing)? 2

Always presume capacity initially until proven otherwise through this specific assessment. 2, 3 Document the specific impairment or disturbance in mind or brain function that prevents decision-making, not just vague statements like "patient confused." 3

Legal Framework for Detention

Why Psychiatric Holds Don't Apply

Civil commitment statutes permit detention only for patients who pose danger to themselves or others specifically as a result of mental illness, and they authorize transport to psychiatric facilities for evaluation—not detention for medical illness or involuntary medical treatment. 1

The Medical Incapacity Hold Solution

Implement a hospital policy-based "medical incapacity hold" to legally detain medically ill patients who lack capacity to understand the grave risks of leaving. 1 This approach:

• Addresses the gap where no laws directly govern this scenario 1
• Mitigates tort risk for physicians acting to protect patients 1
• Provides appropriate safeguards for medically hospitalized patients without psychiatric illness 1

Decision-Making Authority Hierarchy

Once incapacity is established, follow this strict hierarchy for medical decisions:

1. Healthcare Proxy/Agent (Primary Authority)

• A healthcare proxy designated through durable power of attorney or Lasting Power of Attorney (LPA) takes precedence over all other decision-makers. 4
• The proxy can only act once capacity is actually lost for that specific decision 2, 4
• Review the LPA document itself for limits to authority, particularly regarding life-sustaining treatment 2, 4

2. Court-Appointed Guardian (Secondary Authority)

• When no healthcare proxy exists, courts may appoint a guardian or conservator 4
• Note that guardians cannot refuse life-sustaining treatment in most jurisdictions 4
• Important caveat: The guardianship process takes time, and critical medical decisions often must be made before a guardian is appointed—89% of guardianships are requested for placement purposes, yet important medical decisions occur during the waiting period. 5

3. Default Surrogates (Tertiary, State-Dependent)

• In states with default surrogacy statutes, family members are empowered in hierarchical order: spouse, adult child, parent, sibling, friend 4
• Critical pitfall: Not all U.S. states have default surrogacy statutes; in states without them, court appointment becomes necessary if no healthcare agent exists. 4

4. Treating Physician (When No Surrogate Exists)

• When a patient lacks capacity and has no valid surrogate, the treating physician makes treatment decisions based on the patient's best interests. 4, 6
• "Best interests" encompasses medical factors, previously expressed values and beliefs, general well-being, and spiritual/religious welfare—not just medical considerations. 2, 4

Jurisdiction-Specific Considerations

The legal framework varies significantly by location:

England and Wales

• Governed by Mental Capacity Act 2005 2
• Lasting Power of Attorney for Health and Welfare or Court-appointed deputy serve as proxy decision-makers 2
• Valid advance decisions to refuse treatment must be respected; if life-sustaining, must be written, signed, and witnessed 2

Scotland

• Governed by Adults with Incapacity (Scotland) Act 2000 2
• "General Power to Treat" allows treatment with certificate of incapacity 2
• Welfare powers of attorney or guardians serve as proxies 2

Northern Ireland

• Common law jurisdiction (Mental Capacity Bill was proceeding through legislature as of 2016) 2
• No provisions for welfare attorneys 2
• Advance decisions may be valid under common law 2

Documentation Requirements

Document thoroughly to protect both patient and physician:

• Specific examples of the patient's confusion and inability to make the particular decision at hand 3
• Evidence of impairment or disturbance in mind/brain function 3
• Results of the four-component capacity assessment 3
• Consultation with family, friends, or healthcare providers about baseline cognitive function 3
• Identification of authorized surrogate decision-maker and any advance directives reviewed 3
• Clinical reasoning leading to incapacity determination 3
• Documentation that decisions made are in the patient's best interests 3

Common Documentation Pitfalls to Avoid

• Don't assess capacity based solely on diagnosis, age, or appearance 3
• Avoid vague statements without specific examples 3
• Don't document global incapacity without specifying which decisions the patient cannot make 3
• For temporary confusion, document plans for reassessment when condition may improve 3

Practical Algorithm for Unrepresented Patients

For patients with no surrogate or advance directive, use a tiered approach based on treatment gravity: 6

• Low-risk decisions: Physician makes decision based on best interests 6
• Moderate-risk decisions: Ethics committee consultation 6
• High-risk decisions (major surgery, withdrawal of life support): Guardianship approach 6

This tiered system balances the need for timely medical care against the vulnerability of unrepresented patients. 6

Emergency Situations

In emergencies where written consent is impossible, use verbal consent with full documentation in medical notes. 2 Where verbal consent cannot be obtained, the action taken must be the least restrictive of the patient's future options. 2 Common law authority to treat in emergencies remains in place regardless of jurisdiction. 2