Battles over whether people can be held against their will in order to prevent them from doing dangerous things are not restricted to the American courts and halls of Congress. In fact, they are fought every day in America’s emergency departments. That is in part because our Founding Fathers failed to exclude the freedom to do something incredibly dumb from the list of our inalienable rights, perhaps because they had no idea how dumb some of us can be. Had they thought this through, it might be simpler now for physicians to stop us when we are about to put ourselves squarely in harm’s way. Instead, we all have the freedom to make bad decisions unless a physician has determined we are not mentally competent to do so.

Determining competence is easy when the patient is depressed and suicidal, clearly has disordered thinking, or is drunk to the point of incoherence. Most incompetent patients, however, are not so clearly unsafe to make their own decisions. They are competent to make some decisions and not others, have some moments that are clearer than others, and can be competent one day and incompetent on another. Assessing them requires reading the quality of their thinking through the prism of their speech and behavior. Determining incompetence is actually complicated, fraught with peril for the patient and the physician, and can be an issue of life or death with little room for error but lots of opportunity for it.

The recent death of a Maine man who walked out of an emergency department into a blizzard without winter clothing and died in a snowbank 400 feet from the hospital illustrates this problem in a particularly sad and pointed way. Was he mentally competent to make that decision to walk out into the storm without adequate clothing? If yes, then it was his absolute right to walk out even if it was potentially to his death and no one had the right to stop him. If no, he should have been prevented from leaving and held against his will.

The challenge of determining competence is further complicated by the question of how dangerous the patient’s choices are. If the patient is incompetent but is just refusing a treatment of little consequence, we may honor that refusal even if it derives from confusion. If, on the other hand, the patient’s choice may be dangerous, their discretion is more limited. Patient autonomy, then, is something of a moving target. The evaluating physician, then, must weigh not only competence, but consequence of patient choice.

In addition, a patient’s freedom, regardless of competence, may be different in one setting from another. The moment you walk in my ER door I, as the physician, become totally responsible for your serious decisions if you are incompetent. If, on the other hand, you never walked into my ER, the society on the other side of the ER door may allow you a lot more discretion than I can.

As difficult as it can be to do, determining that a patient is incompetent can be the easy part. The hard part may then be forcing the patient to do what’s necessary to reduce the risk of their behavior to themselves or other. The depressed and suicidal patient who wants to leave the ER, for example, often does not just agree to stay when told he or she must do so. These disagreements can turn downright ugly. A patient who insists on leaving must often then be wrestled down, tied down and sedated with tranquilizers. This medical wrestling match can be dangerous to the patient and to ER staff and is terribly unpleasant for both. It is, after all, assault and battery in any other setting and not the kind of “help” most of us got into medicine to give patients.

The decision to restrict a patient’s freedom is the proverbial rock and hard place for the physician. Our society so values the individual’s right to govern what happens to his or her body that the physician can be punished for violating those rights. A physician who orders a patient strapped down and injected with sedatives in order to do a test or procedure on the patient or in order to send the patient to a psychiatric hospital against the patient’s will can be sued or disciplined if the patient then complains and is found in retrospect to have been competent to refuse those treatments.

On the other hand, a physician who releases a depressed but apparently competent patient who chooses to leave the ER and then kills herself or allows a patient to refuse a spinal tap who then leaves and dies of meningitis can be sued or disciplined if subsequent review determines these patients were actually not competent to make those decisions.

The paradox between our desire to have as much personal freedom as possible and our desire to be completely protected from the consequences of our bad decisions leaves physicians in a position that some days feels downright untenable. The job of physicians in competence determination would be easier if society would not demand that physicians err on the side of patient freedom and then punish us when we did so and something bad happened to the patient.

We are a nation that has usually placed individual freedom above almost all other human rights. We can add the emergency department to the list of places where battles are fought and lives occasionally lost in freedom’s cause.

Erik Steele, D.O., a physician in Bangor, is chief medical officer of Eastern Maine Healthcare Systems and is on the staff of several hospital emergency rooms in the region.