ETHICS IN ACTION A Difficult Foley

By Jeremy Simon, MD, PhD

The Case

An 82-year-old man presents with urinary retention from a nursing home. He is accompanied by his daughter, who is his next of kin. The patient has chronic prostatic hypertrophy (BPH) and has had a foley catheter in place, intermittently, for most of the past two years. The patient’s urologist removed the foley three days prior to presentation and since that time the patient has only been producing small amounts of urine at a time.

The patient has no significant medical history beyond BPH and the mild dementia for which he was admitted to the nursing home. An ultrasound done soon after arrival shows a post-void residual of 2 liters. A review of prior charts reveals that the patient had presented in severe urinary retention in the past, arriving with a creatinine of 26 on one visit, which rapidly returned to his baseline creatinine of 1.2 after a foley was placed.

The patient states that he does not want any more foley catheters placed, but because of his dementia, the emergency physician (EP) turns to the daughter for consent to place the foley, with sedation if necessary. The daughter refuses, saying that if the foley is placed, her father will be upset with her, and she does not want this to happen. A foley is therefore not placed. At the advice of the ethics consultant, the EP places a consult to psychiatry to formally assess the patient’s capacity. By the end of this shift the consult still has not happened, nor have any labs resulted. The patient has, however, produced around 20cc of urine, which is sent for a urinalysis and is also pending. It is left to the oncoming overnight EP to figure out how to proceed. He personally assesses the patient’s capacity. Although the patient appears to be basically cognitively normal, probing the patient’s willingness to accept a foley and his reasons for refusing (when he did so) produces inconsistent answers. The EP concludes that the patient indeed does not have capacity. The consulting psychiatrist, who is eventually able to see the patient, concurs with the EP’s evaluation. Soon thereafter, the patient’s creatinine result comes back and is at baseline. (The urinalysis is clear.) Given this result, the fact that the patient had previously tolerated significant retention, and that the patient was able to urinate a bit, the EP decides that placing the foley is not emergent and defers it pending further discussions with the daughter. Thirty-six hours later the daughter changes her mind and consents to placing the foley. The patient is sedated and the foley is placed. The patient tolerates the foley well after it is placed and does not require any further sedation to keep him from removing it.

This case raises several important issues related to surrogate decision-making. The first is that capacity is question specific. The patient was able to engage in reasonable conversation and may well have been able to make other decisions on his own. However, when it came to the decision at hand, the patient lacked capacity. He was inconsistent in his willingness to accept the foley and could not provide a clear and consistent explanation for why he refused when he did so. However, were he to have needed to make another decision, his capacity to do so would have had to be evaluated based on his understanding of and consistency about that decision. His lack of capacity for one decision did not necessarily imply a lack of capacity for any other decision.

The second issue this case raises is the appropriate standard for surrogate decision-making. A surrogate is supposed to make decisions for a patient based on the patient’s underlying values, those values he held when he still had capacity, and those which are in the patient’s best interests. However, in this case, the daughter failed to do this, at least initially. Her decision the first day was explicitly based on her own desire that her father not become angry with her. While the patient, with his dementia, may well have become angry, this does not mean that his anger was a true expression of his values and wishes.

The third issue raised in this case is the value of time when dealing with refusal of care, whether by a surrogate, a patient with capacity, or even a patient without capacity. This situation involved two of these scenarios. While it is unclear what made the surrogate change her mind, it is not surprising that additional time and/ or talk to other people, may have caused her to reconsider. Furthermore, although this patient still needed sedation to have the foley placed, it is entirely possible that in a similar case, the team might have found a moment when the patient was willing to comply. In that case, the patient would have been spared the risks of sedation, as well as the violation of being treated against his will. Even patients without capacity retain their right to be treated in a dignified manner, though we might sometimes override that right. Finally, even in the case of a patient with capacity who is refusing care thought to be essential, time can help. If the patient is, for example, willing to be admitted for observation but not treatment, additional time might cause the patient to reconsider, or consult with others who might persuade the patient to change his or her mind.

A third issue raised here is that although in this case a psychiatrist was involved in determining whether the patient had capacity, the second EP made her own determination and did not really need the psychiatrist. Any treating physician who is familiar with the process of capacity determination can do the assessment. Psychiatrists may be helpful in tricky cases where it is hard to figure out what the patient is thinking, and they can certainly assist when the primary team is not comfortable making capacity determinations, but unless a hospital has a specific policy on the matter, psychiatrists are not necessary for capacity determinations.

A final issue, more hinted at in this case than directly raised, is that sometimes, even with surrogate consent and a clear need, it may not be appropriate to treat a patient without capacity, over his or her objection.

One must consider what comes after the procedure as well. Fortunately, this patient did not require ongoing sedation to continue with the foley once it was in, but it is entirely possible that he might have. Would it be reasonable or practical to sedate the patient long-term so that he would continue to tolerate the foley? Not necessarily. In the case of surgery, noncompliance with post-operative care may leave the patient worse off than if the surgery had not been done in the first place. Such issues must be considered before treating the patient over his or her objection. The assent of a patient without capacity may not be merely desirable, as mentioned above, but possibly necessary as well.

About The Author

Dr. Simon is a professor of emergency medicine at the Columbia University Medical Center, in addition to serving as faculty associate at the Columbia Center for Clinical Medical Ethics. Dr. Simon is also a senior research associate for the department of philosophy at the University of Johannesburg.