This document discusses decisional capacity and assessing capacity in older adults. It covers:
- Determining capacity can be difficult when individuals have complex impairments, and requires balancing ethics, law, and protecting individuals.
- Capacity is a medical determination of whether someone can make their own decisions, while competency is a legal status determined by a judge.
- Tools for assessing cognition like the MMSE can provide likelihood ratios for capacity, but capacity evaluations consider multiple factors.
- The Aid to Capacity Evaluation (ACE) is a validated instrument that assesses understanding, appreciation of risks/benefits, and reasoning to make a medical decision. Scores help determine capacity.
2. Challenging Task Upon Us
Determining capacity in older adults with
complex impairments can be difficult!!!
Balancing ethical and legal guidelines for
respect of individual’s autonomy with
the additional charge of protecting
individuals from harm
3. Capacity vs. Competency
Competency is a LEGAL status - assumed, must
be proven otherwise in court, only a judge can
determine
Capacity is a MEDICAL status – generally
assumed unless proven otherwise by a clinician
4. Idaho Statute
For most medical decision making, the determination of competence is
defined as follows:
“Any person who comprehends the need for, the nature of and the
significant risks ordinarily inherent in any contemplated hospital,
medical, dental, surgical or other health care, treatment or
procedure is competent to consent thereto on his or her own
behalf. Any health care provider may provide such health care and
services in reliance upon such a consent if the consenting person
appears to the health care provider securing the consent to possess
such requisite comprehension at the time of giving the consent.” -
IC § 39-4503
Not addressing guardianship proceedings, developmentally disabled, or
criminal proceedings
5. General Principles
Valid consent
Adequate information
Free of coercion
Medical decision-making capacity
• UNDERSTAND relevant information
• APPRECIATE situation
• Use REASON to make decision
• COMMUNICATE their choice
6. Assessing Decisional
Capacity
Physicians fail to recognize incapacity in
over half of cases, but
they are usually correct when making the
diagnosis of incapacity
Sessums LL, Zembrzuska H, Jackson JL.
Does this patient have medical decision-making capacity?
JAMA. 2011;306:420-427.
7. Types of Capacities
• Work
• Drive an automobile
• Parent
• Make medical decisions
• Provide informed consent
• Care for one’s self or property
• Designate a will or other legal contract
• VOTE!!
8. Caveats to Capacity
Evaluation
Temporal - exists in a continuum
Situational
Limited capacity vs. fully incapacitated
Optimization possible
Consider environmental influences +/-
Needs/values of patient
9. Six Pillars of Capacity
1. Medical Condition
2. Cognition
3. Everyday Functioning
4. Values and Preferences
5. Risk and Level of Supervision
6. Means to Enhance Capacity
American Bar Association Commission on Law and Aging –American Psychological Association
Judicial Determination of Capacity of Older Adults in Guardianship Proceedings (2006)
Assessment of Older Adults with Diminished Capacity (2008)
10. Six Pillars of Capacity
1. Medical Condition
2. Cognition
3. Everyday Functioning
4. Values and Preferences
5. Risk and Level of Supervision
6. Means to Enhance Capacity
American Bar Association Commission on Law and Aging –American Psychological Association
Judicial Determination of Capacity of Older Adults in Guardianship Proceedings (2006)
Assessment of Older Adults with Diminished Capacity (2008)
11. Medical Condition
Producing Functional
Disability
What is the medical cause of the individual’s
alleged incapacities and will it improve, stay the
same, or get worse?
Today, judges require information on the specific
disorder causing diminished capacity.
12. Six Pillars of Capacity
1. Medical Condition
2. Cognition
3. Everyday Functioning
4. Values and Preferences
5. Risk and Level of Supervision
6. Means to Enhance Capacity
American Bar Association Commission on Law and Aging –American Psychological Association
Judicial Determination of Capacity of Older Adults in Guardianship Proceedings (2006)
Assessment of Older Adults with Diminished Capacity (2008)
13. Choices, Values, Preferences
Are the person’s choices consistent with long-
held patterns or values and preferences?
Do not mistake eccentricity for diminished
capacity
Long-held choices must be respected, yet
weighed in view of new medical information that
could increase risk, such as a diagnosis of
dementia
14. Six Pillars of Capacity
1. Medical Condition
2. Cognition
3. Everyday Functioning
4. Values and Preferences
5. Risk and Level of Supervision
6. Means to Enhance Capacity
American Bar Association Commission on Law and Aging –American Psychological Association
Judicial Determination of Capacity of Older Adults in Guardianship Proceedings (2006)
Assessment of Older Adults with Diminished Capacity (2008)
15. Risk of Harm and Level of
Supervision Needed
What is the level of supervision needed? How
severe is the risk of harm to the individual?
Must consider condition’s risk in the context of
environmental supports and demands
The level of supervision to mitigate risk should match
the risk of harm to the individual
If no other feasible option, consider guardianship
16. Six Pillars of Capacity
1. Medical Condition
2. Cognition
3. Everyday Functioning
4. Values and Preferences
5. Risk and Level of Supervision
6. Means to Enhance Capacity
American Bar Association Commission on Law and Aging –American Psychological Association
Judicial Determination of Capacity of Older Adults in Guardianship Proceedings (2006)
Assessment of Older Adults with Diminished Capacity (2008)
17. Means to Enhance Capacity
Assistance with Physical Disability
The mere existence of a physical disability should not be
a ground for guardianship
Assistance with Finances Needed
Assistance for Unsafe Living Environment
Assistance with Daily Activities
18. Six Pillars of Capacity
1. Medical Condition
2. Cognition
3. Everyday Functioning
4. Values and Preferences
5. Risk and Level of Supervision
6. Means to Enhance Capacity
American Bar Association Commission on Law and Aging –American Psychological Association
Judicial Determination of Capacity of Older Adults in Guardianship Proceedings (2006)
Assessment of Older Adults with Diminished Capacity (2008)
19. Assessing Cognitive
Functioning
In House Options/Screens
Montreal Cognitive Assessment (MOCA)
Mini-Mental Status Exam (MMSE)
Mini-Cog
Saint Louis University Mental Status Exam (SLUMS)
Refer for Neuropsychological Evaluation
MMSE most often used -
weighted toward orientation,
attention, and memory
20.
21. MMSE and Likelihood
Likelihood Ratios
MMSE < 20 increases likelihood of incapacity
summary LR = 6.3
MMSE < 16 increases likelihood further
summary LR = 12
MMSE 20 - 24 has no effect on likelihood of incapacity
summary LR = 0.87
MMSE > 24 significantly lowers the likelihood of
incapacity
summary LR = 0.14
JAMA. 2011;306(4):420-427.
doi:10.1001/jama.2011.1023
23. MMSE and Likelihood
Likelihood Ratios
MMSE < 16 LR = 12
MMSE < 20 LR = 6.3
MMSE 20 - 24 LR = 0.87
MMSE > 24 LR = 0.14
JAMA. 2011;306(4):420-427.
doi:10.1001/jama.2011.1023
24. Pre-test Probability of
Incapacity
Healthy Elderly Controls 3%
Mild Cognitive Impairment 20%
Medicine Inpatients 26%
SNF resident 44%
Alzheimers disease 54%
Learning Disabled 68%
JAMA. 2011;306(4):420-427.
doi:10.1001/jama.2011.1023
25. Instrument for Assessing Capacity
Aid to Capacity Evaluation (ACE)
validated in medicine inpatients/strong levels of evidence
able to perform in office environment “in less than 30 minutes”
available online w/ training materials
uses the patient’s own medical situation and diagnosis or treatment
decision
consists of 8 questions that assess understanding of the
problem, treatment proposed, treatment alternatives, the option to
refuse treatment, possible consequences of the decision, and
the effect of an underlying mental disorder on decision
includes a scoring manual that provides “objective” criteria for scoring
responses
robust likelihood ratios
Etchells E, Darzins P, Silberfeld M, et al. Assessment
of patient capacity to consent to treatment.
J Gen Intern Med. 1999;14(1):27-34.
26. Aid to Capacity Evaluation (ACE)
1. Medical Condition:
• What problems are you having right now?
• What problem is bothering you most?
• Why are you in the hospital?
• Do you have [name problem here]?
2. Proposed Treatment:
• What is the treatment for [your problem]?
• What else can we do to help you?
• Can you have [proposed treatment]?
Domains 1-4 evaluate whether the person understands their
current medical problem, the proposed treatment and other options
(including withholding or withdrawing treatment).
27. Aid to Capacity Evaluation (ACE)
3. Alternatives:
• Are there any other [treatments]?
• What other options do you have?
• Can you have [alternative treatment]?
4. Option of Refusing Proposed Treatment (including withholding or
withdrawing proposed treatment):
• Can you refuse [proposed treatment]?
• Can we stop [proposed treatment]?
Domains 1-4 evaluate whether the person understands their
current medical problem, the proposed treatment and other options
(including withholding or withdrawing treatment).
28. Aid to Capacity Evaluation (ACE)
5. Consequences of Accepting Proposed Treatment:
• What could happen to you if you have [proposed treatment]?
• Can [proposed treatment] cause problems/side effects?
• Can [proposed treatment] help you live longer?
6. Consequences of Refusing Proposed Treatment:
• What could happen to you if you don't have [proposed treatment]?
• Could you get sicker/die if you don't have [proposed treatment]?
• What could happen if you have [alternative treatment]? (If alternatives
are available)
Domains 5-6 evaluate whether the person appreciates the
consequences of their decision.
29. Aid to Capacity Evaluation (ACE)
7a. The Person's Decision is Affected by Depression:
• Can you help me understand why you've decided to accept/refuse
treatment?
• Do you feel that you're being punished?
• Do you think you're a bad person?
• Do you have any hope for the future?
• Do you deserve to be treated?
7b. The Person's Decision is Affected by Psychosis:
• Can you help me understand why you've decided to accept/refuse
treatment?
• Do you think anyone is trying to hurt/harm you?
• Do you trust your doctor/nurse?
30. Aid to Capacity Evaluation (ACE)
Scoring – score each question with
YES - responds appropriately to open-ended
questions
UNSURE - need repeated prompting by closed-
ended questions
NO - cannot respond appropriately despite
repeated prompting
31. Aid to Capacity Evaluation
(ACE)
Etchells E, Darzins P, Silberfeld M, et al. Assessment
of patient capacity to consent to treatment.
J Gen Intern Med. 1999;14(1):27-34.
32. Calculating Likelihood of Incapacity
86 yo WF w/ severe R knee OA
Failed conservative measures
Considering surgery
Resides in SNF (pre-test prob = 44%)
MMSE = 21 (LR = 0.87)
33. Calculating Likelihood of Incapacity
86 yo WF w/ severe R knee OA
Failed conservative measures
Considering surgery
Resides in SNF (pre-test prob = 44%)
MMSE = 21
ACE instrument = Definitely Incapable (LR=20)
34. Calculating Likelihood of Incapacity
86 yo WF w/ severe R knee OA
Failed conservative measures
Considering surgery
Resides in SNF (pre-test prob = 44%)
MMSE = 21
ACE instrument = Probably Incapable (LR=6)
35. Proposed Algorithm for
Determining Capacity in
Cognitively Impaired
Determine pretest probability
MMSE <24 then suspect incapacity
MMSE 20-24 - perform ACE instrument
MMSE <20 – high likelihood of incapacity
Retest in future as results are situation specific
36. Six Pillars of Capacity
1. Medical Condition
2. Cognition
3. Everyday Functioning
4. Values and Preferences
5. Risk and Level of Supervision
6. Means to Enhance Capacity
American Bar Association Commission on Law and Aging –American Psychological Association
Judicial Determination of Capacity of Older Adults in Guardianship Proceedings (2006)
Assessment of Older Adults with Diminished Capacity (2008)
37. Assessing Everyday Function
the 6th Vital Sign?
ADLs
(Activities of Daily Living)
IADLs
(Instrumental Activities of Daily
Living)
Bathing Use Telephone
Dressing Traveling via car or public
transportation
Toileting Shopping
Transferring (in and out of bed or chair) Meal Preparation
Urine/Bowel Incontinence Housework
Eating Medication Use
Money Management
38.
39. Assessing DMC for ADL/IADL
ACED - Assessment of Capacity for Everyday
Decision-Making
companion instrument: SPACED - Short Portable ACED
full instrument takes 15-20 minutes to administer
validated in older adults with dementia
http://www.jasonkarlawish.com/
40. Assessing DMC for ADL/IADL
ACED
Uses a structured interview format to assess the four decision-
making abilities:
Understanding
Understanding the problem, understanding the alternatives available to solve the problem,
understanding the advantages and disadvantages of the alternatives
Appreciation
Appreciating patient-specific deficits and the potential impact of new alternatives to
everyday life
Reasoning
Comparative and consequential reasoning about choice
Expressing a choice
The ability to express a single clear choice of how to solve an everyday problem
Logical consistency of choice with patient’s reasoning
http://www.jasonkarlawish.com/
41. Assessing DMC for ADL/IADL
Talking with your clients is an informal way to train
Get comfortable asking your patients about understanding
risks/benefits even when capacity is not in question
Example – if you listen to enough normal hearts, it helps you
identify when an abnormal rhythm or murmur occurs
Avoid a choice and some reasoning followed then back and
forth arguments about the reasoning ("Seinfeld-like
scenarios")
including executing a health care power of attorney
The criteria for valid consent to medical
treatment vary from state to state but
are based on common law and have 3
elements. The patient must (1) be given
adequate information regarding the nature
and purpose of proposed treatments,
as well as the risks, benefits, and
alternatives to the proposed therapy, including
no treatment; (2) be free from
coercion; and (3) have medical decision-
making capacity.10 The standards
for whether a patient meets this
last element also vary from state to state
but are generally based on evaluating
4 abilities.11 Patients must have the ability
to (1) understand the relevant information
about proposed diagnostic
tests or treatment, (2) appreciate their
situation (including their underlying
values and current medical situation),
(3) use reason to make a decision, and
(4) communicate their choice.11
"S:\Data Dr M\@Geriatrics\Decision-Making Capacity\Does This Patient Have Medical Decision-Making Capacity Sessums JAMA 2011.pdf"
Temporal/evanescent
Situational, exists in a continuum, retest for future decisions
Limited capacity vs. fully incapacitated
Can be optimized (reversible drug-induced or metabolic disorders, reversible communication deficit or use alternative communication, shortening/simplifying info)
Influenced by a variety of factors, including situational, psychosocial, medical, psychiatric, and neurological factors; r/o psych condition such as depression or delusions but "psychiatric illness alone does not render a patient incapable of medical decision making)
INSTRUCTIONS FOR SCORING
1. Domains 1-4 evaluate whether the person understands their current medical problem, the proposed treatment and other options (including withholding or withdrawing treatment). Domains 5-6 evaluate whether the person appreciates the consequences of their decision. (See sample questions above.) 2. For domains 1-6, if the person responds appropriately to open-ended questions, score YES. If they need repeated prompting by closed-ended questions, sore UNSURE. If they cannot respond appropriately despite repeated prompting, score NO. 3. For domain 7, if the person appears depressed or psychotic, then decide if their decision is being affected by the depression or psychosis. For domain 7a, if the person appears depressed, determine if the decision is affected by depression. Look for the cognitive signs of depression such as hopelessness, worthlessness, guilt, and punishment. (See sample questions above.) For domain 7b, if the person may be psychotic, determine if the decision is affected by delusion/psychosis. (See sample questions above.) 4. Record observations which support your score in each domain, including exact responses of the patient. 5. Remember that people are presumed capable. Therefore, for your overall impression, if you are uncertain, then err on the side of calling a person capable.
INSTRUCTIONS FOR SCORING
1. Domains 1-4 evaluate whether the person understands their current medical problem, the proposed treatment and other options (including withholding or withdrawing treatment). Domains 5-6 evaluate whether the person appreciates the consequences of their decision. (See sample questions above.) 2. For domains 1-6, if the person responds appropriately to open-ended questions, score YES. If they need repeated prompting by closed-ended questions, sore UNSURE. If they cannot respond appropriately despite repeated prompting, score NO. 3. For domain 7, if the person appears depressed or psychotic, then decide if their decision is being affected by the depression or psychosis. For domain 7a, if the person appears depressed, determine if the decision is affected by depression. Look for the cognitive signs of depression such as hopelessness, worthlessness, guilt, and punishment. (See sample questions above.) For domain 7b, if the person may be psychotic, determine if the decision is affected by delusion/psychosis. (See sample questions above.) 4. Record observations which support your score in each domain, including exact responses of the patient. 5. Remember that people are presumed capable. Therefore, for your overall impression, if you are uncertain, then err on the side of calling a person capable.
INSTRUCTIONS FOR SCORING
1. Domains 1-4 evaluate whether the person understands their current medical problem, the proposed treatment and other options (including withholding or withdrawing treatment). Domains 5-6 evaluate whether the person appreciates the consequences of their decision. (See sample questions above.) 2. For domains 1-6, if the person responds appropriately to open-ended questions, score YES. If they need repeated prompting by closed-ended questions, sore UNSURE. If they cannot respond appropriately despite repeated prompting, score NO. 3. For domain 7, if the person appears depressed or psychotic, then decide if their decision is being affected by the depression or psychosis. For domain 7a, if the person appears depressed, determine if the decision is affected by depression. Look for the cognitive signs of depression such as hopelessness, worthlessness, guilt, and punishment. (See sample questions above.) For domain 7b, if the person may be psychotic, determine if the decision is affected by delusion/psychosis. (See sample questions above.) 4. Record observations which support your score in each domain, including exact responses of the patient. 5. Remember that people are presumed capable. Therefore, for your overall impression, if you are uncertain, then err on the side of calling a person capable.
INSTRUCTIONS FOR SCORING
1. Domains 1-4 evaluate whether the person understands their current medical problem, the proposed treatment and other options (including withholding or withdrawing treatment). Domains 5-6 evaluate whether the person appreciates the consequences of their decision. (See sample questions above.) 2. For domains 1-6, if the person responds appropriately to open-ended questions, score YES. If they need repeated prompting by closed-ended questions, sore UNSURE. If they cannot respond appropriately despite repeated prompting, score NO. 3. For domain 7, if the person appears depressed or psychotic, then decide if their decision is being affected by the depression or psychosis. For domain 7a, if the person appears depressed, determine if the decision is affected by depression. Look for the cognitive signs of depression such as hopelessness, worthlessness, guilt, and punishment. (See sample questions above.) For domain 7b, if the person may be psychotic, determine if the decision is affected by delusion/psychosis. (See sample questions above.) 4. Record observations which support your score in each domain, including exact responses of the patient. 5. Remember that people are presumed capable. Therefore, for your overall impression, if you are uncertain, then err on the side of calling a person capable.
INSTRUCTIONS FOR SCORING
1. Domains 1-4 evaluate whether the person understands their current medical problem, the proposed treatment and other options (including withholding or withdrawing treatment). Domains 5-6 evaluate whether the person appreciates the consequences of their decision. (See sample questions above.) 2. For domains 1-6, if the person responds appropriately to open-ended questions, score YES. If they need repeated prompting by closed-ended questions, sore UNSURE. If they cannot respond appropriately despite repeated prompting, score NO. 3. For domain 7, if the person appears depressed or psychotic, then decide if their decision is being affected by the depression or psychosis. For domain 7a, if the person appears depressed, determine if the decision is affected by depression. Look for the cognitive signs of depression such as hopelessness, worthlessness, guilt, and punishment. (See sample questions above.) For domain 7b, if the person may be psychotic, determine if the decision is affected by delusion/psychosis. (See sample questions above.) 4. Record observations which support your score in each domain, including exact responses of the patient. 5. Remember that people are presumed capable. Therefore, for your overall impression, if you are uncertain, then err on the side of calling a person capable.