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Decisional Capacity
- 1. Decisional Capacity Stephen Montamat, MD 2017 JAVA/IGFA SUMMIT NOVEMBER 3, 2017 BOISE STATE UNIVERSITY
- 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
- 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
- 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")
Editor's Notes
- Assumed vs. not assumed
- 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.