Physicians have ethical obligations to help patients and to respect their autonomy.

Usually, these obligations are consistent with each other. Cases of refusal of care, or requests to leave against medical advice (AMA), put these two obligations into conflict and can create a great deal of discomfort for the ethically sensitive physician.

Much of this discomfort arises from the way such cases are generally approached. The usual way to deal with patients who refuse care is to assess whether they have decision-making capacity (DMC). If they have DMC, we allow them to refuse care. If they don’t, we ignore their wishes and either consult with a surrogate or, if there is no surrogate, provide what we consider to be the appropriate medical care.

The problem with this traditional approach, what we may call the AMA/no-capacity dichotomy, is that it results in outcomes where one of our duties seems to have been abandoned. Either we fail to help the patient or fail to honor his or her wishes.

Instead of abandoning one of our fundamental duties, we are better served by abandoning the AMA/no-capacity dichotomy. Rather than jumping immediately to the question of whether or not a patient has DMC, we should instead attempt to understand why our patient disagrees with our care plan. In the ideal case, we would want to avoid such disagreements in the first place through communication, empathy, and shared decision making. In this way, we can better meet all of our ethical obligations to our patients, even those who lack capacity.

Many – if not most – cases of refusal of care result from a failure to communicate rather than from a failure of decisional capacity. Attention to certain key principles can greatly improve communication with our patients and help us align our goals of treatment with theirs.

The first essential component of communication is clarity. If patients do not understand what we are saying, they can hardly be expected to do what we suggest. This means avoiding technical language in discussions with patients. Physicians often forget how much they have learned in their training, but as a rule of thumb, any term one learned after beginning medical school (and, in some cases, college) should not be used in talking to patients. Asking patients to reiterate our statements can be an important step in ensuring their understanding of the communication.

If a patient understands us but still rejects our advice, it may be because he or she does not trust us. Placing your health in another’s hands requires a great deal of trust, and the emergency department is not the best place for developing relationships. We have only a short period of time in a chaotic environment to develop a relationship with a patient whom we have never met and who is likely under significant stress. However, some small gestures can go a long way to developing trust.

Sit down when possible, to show patients that you will hear them out. Do not interrupt your time with a patient unless it is truly necessary. Respond to your patient’s simple needs, like requests for a glass of water or an extra blanket. Finally, if some mistrust has developed, simply tell patients, sincerely, that you have their best interests at heart.

Each of these steps for developing trust may require patience. In addition to patience, empathy is a second virtue that is essential to fostering trust. Patients who believe that we care about them and their concerns are more likely to trust and listen to us.

If, after attention to our relationship with the patient, he still refuses to accept our care plan, it is still not time to consider discharging him AMA. Often, there is room for negotiation. The plan the patient is rejecting may be the best plan for him from our perspective, but it is rarely the only acceptable approach.

If the patient is refusing admission, perhaps he will at least agree to further testing in the ED, even if those tests are ordinarily done only on inpatients. Perhaps he will agree to admission if planned interventions are deferred for a day while he becomes more comfortable with the plan. A deferred cardiac catheterization in a patient with unstable angina may not be ideal, but it is better than no catheterization because the patient left the hospital AMA. Finally, perhaps patients who require interventions that they are refusing will at least agree to be admitted for observation. Even if observation itself serves little purpose for the patient, it may give physicians, as well as family members, clergy, and others, time to talk further with the patient and perhaps overcome the reluctance.

If, despite all efforts, no agreement or compromise can be reached, one must determine whether the patient has capacity to refuse care (a topic which is beyond the scope of this article). If the patient has capacity, one can discharge that patient AMA knowing that one has done one’s best to respect the patient’s autonomy and help him or her medically.

Even if the patient lacks capacity, it is still best to seek to gain his or her agreement. We can force treatment on patients who lack capacity, but it is ethically preferable not to. Although the agreement of a patient without capacity will not be based on adequate understanding, it will still reflect the patient’s willingness to follow our plan.

Sometimes their cooperation is not just ethically preferable, but actually necessary. Consider a patient who lacks relevant decision-making capacity and is refusing an organ transplant, and who also makes it clear that he will not take antirejection medications for the rest of his life. Even if we were authorized to do the transplant by the patient’s surrogate, we still could not proceed.

Surgery is just the first step of the transplantation process, and we cannot make a patient take medications for the rest of his life. The transplant procedure will thus ultimately be a failure because of the patient’s lack of cooperation, and performing such surgery would therefore be inappropriate.

Agreeing with patients on a plan of care is both ethically and medically valuable, regardless of their capacity to refuse care. Obtaining the patient’s agreement should precede assessing capacity, in principle, and often in fact.

This article was written on behalf of the ACEP Ethics Committee. Dr. Simon is Associate Clinical Professor of Clinical Medicine, Columbia University/New York–Presbyterian Emergency Medicine Residency and Scholar-in-Residence, Center for Bioethics, Columbia University.