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The Nuanced Issues Behind Guardianship

Discussion in 'Hospital' started by The Good Doctor, Jul 5, 2021.

  1. The Good Doctor

    The Good Doctor Golden Member

    Aug 12, 2020
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    “Control leads to compliance; autonomy leads to engagement.”
    – Daniel H. Pink

    There has been much public discussion relating to guardianship and its tenants. It is tempting to draw conclusions around topics related to current events, while knowing very little about the processes behind the scenes. Guardianship is a very complicated topic; the ethical concepts of paternalism and autonomy are at odds, and in addition, clinical and legal realms are involved to varying degrees. Then to make things even more complicated, every state has different laws regarding guardianship.


    Capacity and competency are often misused interchangeably when discussing this topic, even in hospital settings. Capacity is a clinical decision; a clinician meets with an individual and assesses a particular question: Can this person consider the risks and benefits of a decision, and clearly and consistently communicate the decision. Competency is a legal terminology and is defined as an individual’s mental capacity to proceedings or transactions.

    When guardianship is sought, multiple evaluations and then clinical data are filtered through legal representatives and presented to a judge who ultimately makes the decision. There are various layers of guardianship ranging from conservatorship all the way to complete guardianship. If a person is under full guardianship, they are afforded the same rights as a minor child for practical purposes. Therefore a person cannot enter contractual agreements, cannot hire a lawyer on their behalf, cannot consent to marriage, to name a few. In Kentucky, the law exempts guardians from deciding about the removal of a body part, amputation, psychosurgery, or sterilization and extrapolating from the actual guardianship law psychiatric hospitalization. So if a guardian wanted their charge to have a vasectomy or tubal, that would take a separate judge’s order.

    As a psychiatrist, I am responsible to my patients to remain vigilant in protecting the civil liberties and rights of individuals with mental illness. Paternalism, while it aims to protect an individual by taking responsibility for decision-making, is often practiced to substitute the decision maker’s own ethos and values and impose them on another individual. Taking an individual’s ability to maintain autonomy, while necessary in some circumstances, can be devastating to a person’s psyche. We, as physicians, are left to weigh these very difficult decisions and advocate for the least restrictive means to allow for an individual’s safety while honoring their autonomy and following legal decisions.


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