Medical Incapacity Without Mental Illness: A Legal and Ethical Dilemma for Physicians

Every state in the United States has passed legislation allowing a physician to hold a patient against his or her will for a limited period of time upon a finding of mental illness that renders the patient a danger to self or others. Given the troubled history of mental health treatment in the United States, the bar for an involuntary hold of this nature is necessarily high. However, in most states there is no statutory authority for how to manage cases involving patients who are not dealing with any form of mental illness, but who lack capacity to weigh medical information and make health care decisions due to their medical condition. This article examines the gap in legal authority on the issue of medical incapacity holds and reviews options for health care providers and hospitals trying to appropriately treat and protect such patients without a clear statutory road map to do so.

Republished with permission. The article "Medical Incapacity Without Mental Illness: A Legal and Ethical Dilemma for Physicians" was published by the American Health Law Association on July 19, 2023.