A case for eliminating patient refusals in EMS

By Doug Wolfberg

The time has come for the EMS profession to bid farewell to the traditional practice of patient refusals. Specifically, EMS needs to modernize:

1. The “refusal” terminology and nomenclature
2. The way EMS practitioners manage refusal interactions
3. The way refusals are documented

An updated collaborative informed decision-making (CID) process should replace the traditional refusal model in EMS terminology and clinical practice. In addition, a CID process should be used in all aspects of EMS treatment, transport and destination decision making.

The term ‘patient refusal’ sets the wrong tone

When a patient or legal decision-maker elects not to receive EMS treatment or ambulance transport, the encounter has traditionally been labeled a “patient refusal” or “AMA” (against medical advice). These are not the most applicable or appropriate terms given the evolution of patient-centered care and the legal principle of patient self-determination. In many cases, the people doing the refusing aren’t really patients. In other situations, care isn’t even offered, so individuals aren’t refusing anything.

The word “refuse” – to paraphrase the Merriam Webster dictionary definition – means to express unwillingness to do or comply. The idea of patient non-compliance has driven traditional notions of a refusal of EMS care or transport. This has led EMS practitioners to often label refusal patients as uncooperative, belligerent, hostile or even combative. To be sure, some patients we encounter in EMS do in fact behave in ways that meet one or more of these descriptions. But even when patients do not exhibit any of these characteristics, refusals can evolve into needlessly adversarial interactions between EMS practitioners and patients. This leads to patient dissatisfaction, which is a serious predictor of legal liability for EMS providers and agencies.

‘Patient refusals’ produce too narrow a focus

Of course, there are situations in which EMS practitioners may determine that EMS care and transport are clinically indicated, yet the patient or legal decision-maker decides against it. While it may be true that the person is, in fact, refusing care and/or transport, approaching the interaction as a refusal unduly narrows the focus. Once someone is tagged as a refusal patient, some EMS providers take a step back and clinically disengage from the patient – and then the primary objective simply becomes obtaining a refusal signature. EMS practitioners may mistakenly believe that the refusal signature is what offers them legal protection.

But it isn’t.

When an EMS practitioner believes the patient needs treatment and/or transport, but the patient decides against it, it’s a well-documented and comprehensive clinical narrative that offers the true legal protection. To protect the provider in the event of a lawsuit, the PCR should:

• Thoroughly describe important findings, such as the patient’s decisional capacity
• Identify the risks of the refusal which were communicated
• Detail the discussion of the benefits of treatment/transport
• Document the alternatives given to the patient

The mere refusal signature – and the boilerplate waiver of liability language that is typically found on EMS refusal forms – are far less likely to protect an EMS practitioner or agency in litigation if the patient or legal decision-maker was not truly informed of the risks, benefits and alternatives, and if those discussions were not adequately documented.

In traditional refusal situations, the patient interaction needs to be rebranded. It has become a narrow transaction improperly focused on the execution of a refusal form – and less of a comprehensively-documented, collaborative informed decision-making interaction.

Of course, EMS practitioners must adhere to their system protocols, and most EMS agencies require completion of refusal forms whenever a patient rejects recommended EMS care or ambulance transport. EMS systems should update these forms and their accompanying protocols to reflect a holistic CID approach. But until then, the refusal form serves as an effective medicolegal supplement to the PCR. The important point is that a CID interaction should be documented in a PCR narrative in sufficient detail to afford the necessary legal protection to the EMS caregivers, because a refusal form alone may not provide it.

In the end, the decision about treatment and transport belongs not to the EMS practitioner, but to the competent and properly informed patient, or the patient’s legal decision-maker. This is why the traditional patient refusal interaction must be managed from an entirely new angle. Instead of EMS practitioners substituting their judgment for that of a competent patient – which sometimes is accomplished through sedation and restraint – the EMS practitioner must become a patient advocate, not an adversary. While EMS practitioners can and should inform, advise and educate patients on what the provider believes to be the best course of action, the objective is not to coerce the patient or legal decision-maker to do what the practitioner wants, but to help the patient reach an informed decision about care and transport – regardless of whether the EMS practitioner agrees with it.

Patient refusals are not one size fits all

In some situations, EMS patients may accept care but refuse transport, or accept transport but refuse treatment. In other encounters, the patient may accept some treatments but refuse others. Again, the term “refusal” is not completely accurate or appropriate, when in reality, the patient is making personal choices about the specific care or interventions they want and those they don’t. Again, those choices need to be the product of collaborative, informed decision making, and the same discussion and documentation of risks, benefits and alternatives needs to happen for each such treatment or intervention that the patient decides against.

Remember that the CID approach to patient decision-making is an aspirational model for clinical interactions in EMS. Of course, not every patient or circumstance will permit this kind of collaborative approach to treatment, transport and destination decision making. These may include situations that:

• Pose dangers to the crew
• Require de-escalation
• Involve law enforcement officers who assume custody of the patient
• Involve a patient who lacks decisional capacity and no legal decision maker is present

These and similar situations may clearly compromise the ability of EMS practitioners to engage in a thorough CID process in all cases. That said, the CID process should be the aspirational gold standard for EMS treatment, transport and destination decision making.

Patient refusals don’t apply when there isn’t a patient

There are also many EMS responses in which the person at the other end of the transaction really doesn’t meet any definition of a patient. For example, suppose EMS is dispatched for a motor vehicle crash, arrives to find a scene where one car approaching a stop sign tapped the rear bumper of the car in front of it, and without any doubt, there is absolutely no mechanism of injury for anyone involved. Therefore, nobody involved is a patient. And, since no care is appropriate, none is offered and there is nothing being refused, it is inaccurate to call this a patient refusal situation. Instead, the parties involved (i.e., the EMS providers and the occupants of the vehicles) have together simply concluded that no care or transport is necessary for anyone involved. So, having the individuals sign patient refusal forms puts the EMS practitioners in the situation of using inapplicable forms with inapplicable language to resolve the situation. Instead, a well-documented EMS report describing the encounter would likely offer more legal protection than the mere signature of the individuals on a patient refusal form.

CID also applies to patient destination choices

Another area in which collaborative, informed decision-making must be employed is in the selection of an appropriate hospital destination in certain ambulance transport situations.

For example, if an ambulance is transporting a patient to a hospital ED, and the hospital informs the EMS crew that it is on diversion or bypass, due to a lack of staff or available beds, it is possible that the patient would encounter significant delays in care if transported to that facility. While under the Federal EMTALA law, the patient still has a right to be seen at that hospital, it may not be in their best interest to go there when it would delay immediately needed care. However, some patients who have had a past treatment relationship with a particular facility may be loyal to that facility and demand to be taken there regardless of such potentially harmful care delays. In such a case, the EMS practitioners have an obligation to engage in the CID process with the patient to ensure they are fully aware of the risks, benefits and alternatives, just as with any other clinical recommendation the patient decides against.

There are also situations when transport to a specific destination is directed by applicable clinical protocols (such as specialty care destinations that may apply in cases of trauma, STEMI, stroke, etc.). If a competent patient or their legal decision maker insists on going to a facility that is not accredited for that particular specialty, the decision may not be in the patient’s best interest, and the same type of CID process must be employed – and documented.

EMS diversification also requires a new approach

As a former longtime EMS practitioner, I know that it is customary for most EMS calls to follow a predictable chain of events: dispatch, response, arrival, assessment, treatment and transport. And the majority of EMS responses do follow that sequence. However, as EMS diversifies into a more comprehensive system of mobile integrated healthcare, practitioners will be called upon to engage in more of an interactive process with patients or their legal decision-makers – and with other practitioners – that seeks to jointly devise and implement the optimum approach to patient care.

Telehealth is one area where EMS involvement is increasing. Federal rules adopted during the COVID-19 pandemic expressly permit practitioners to partner with EMS agencies in the provision of telehealth from any care origination site – including the patient’s home or the scene of a call. EMS practitioners can be the on-site eyes and ears for telehealth providers, such as physicians, advance practice nurses and physician assistants who see the patient remotely.

Telehealth is also a critical component of the Medicare ET3 program for treatment in place decisions. Under the ET3 model, the plan of care for a patient will not merely involve an automatic ambulance transport to an emergency department. Instead, there is a three-way interaction between the EMS practitioner, the patient and the remote telehealth practitioner to determine the best approach for patient management. In some cases, it may entail a four-way interaction, as health insurers and payors may be integrated into the process through nurse triage lines or payer preauthorization departments.

In some cases, the result of this multi-party consultation and patient decision-making process could be deferred follow-up with a primary care provider. It could result in referral for specialty care or social services, such as counseling, group therapy, addiction treatment or other non-acute care. In some cases, the best decision might be to transport the patient to a destination better suited to care for their condition than a traditional hospital emergency department. This could be a clinic, behavioral health facility, urgent care facility, outpatient imaging or ambulatory surgical center, physician’s office, or a host of other locations more suitable than an ED.

In all of these situations, whether the end result is a non-transport decision, a referral for non-acute services or transport to a non-traditional destination, these diversified EMS delivery models result not in a refusal of services, but in what should be a well-reasoned, collaborative, informed decision on further care or treatment by the patient and their care team. This diversified future for EMS delivery is why EMS clinical documentation needs to rebrand itself from the refusal of care or transport model to that of a collaborative, informed decision-making approach.

Informed clinical decision making

The key to limiting liability and creating a legally defensible position when a patient exercises their right to make informed decisions about their care, treatment and transport is to ensure that EMS practitioners have a collaborative, informed decision-making interaction with the patient or their legally responsible decision-maker. In this discussion, all appropriate risks, treatment options, benefits and alternatives should be explained and documented. This holistic approach to informed clinical decision-making is preferable to simply attaching the “patient refusal” label to a patient or a non-patient encounter, getting a signature and going on your way. The process of how we deliver EMS – and the diversified, community-based and patient-centered delivery of mobile integrated healthcare to which the future clearly points – demands that we revamp the traditional refusal model and adopt collaborative informed decision making in all facets of EMS.

Read next: When does legal liability to an EMS patient begin?

About the author

Doug Wolfberg is an EMS attorney and a founding partner of Page, Wolfberg & Wirth, LLC. Prior to becoming an attorney, Doug spent decades in EMS as a practitioner, a county EMS director, and an EMS official at the state and federal levels. Doug co-developed the national Certified Ambulance Documentation Specialist (CADS) course and is a frequent lecturer for EMS audiences nationwide.

This article was originally posted Aug. 19, 2020. It has been updated.