DISCLOSURES. This speaker has indicated there are no relevant financial relationships to be disclosed.

Transcription

1 DISCLOSURES This speaker has indicated there are no relevant financial relationships to be disclosed.

2 ST.VINCENT NEUROSCIENCE INSTITUTE ASSESSMENT OF CAPACITY AND THE ROLE OF THE MEDICAL TEAM Jon C. Thompson, Psy.D., ABPP-CN Clinical Services Manager Department of Neuropsychology St.Vincent Indianapolis Hospital

3 PRESENTATION GOALS Explain Difference Between Capacity and Competency Provide Overview of Capacity Assessment Demonstrate an Understanding of the Core Components of Capacity Assessment Demonstrate an Appreciation of the Importance of Using Objective Assessment to Inform Capacity Decisions

4 CAPACITY VERSUS COMPETENCY Competency is a Legally Determined Construct If a person is found to be legally incompetent, he or she is unable to give informed consent Finding of Incompetence by a judge is generally permanent Capacity is a Clinically Determine Construct Capacity is task and time specific Capacity can wax and wane There are a number of different types of Capacities Capacity is situational Capacity is contextual

5 HEALTH CARE PROVIDERS MAKE EXPLICIT AND IMPLICIT DECISIONS ABOUT CAPACITY EVERY TIME A PATIENT IS SEEN At the heart of determinations regarding capacity and competency is the notion of informed consent

6 CAPACITY AND INFORMED CONSENT Primary method of medical decision-making is the weighing of risks and benefits of a particular action or procedure Physicians and other experts establish the range of reasonable options Patient retains authority for weighing benefits/risks and making decision

7 INDIANA MEDICAL MALPRACTICE STATUTE INFORMED CONSENT REQUIRES: General nature of patient s condition. Proposed treatment, procedure, examination, or test. Expected outcome of treatment, procedure, examination, or test. Material risks of treatment, procedure, examination, or test. Reasonable alternatives to treatment, procedure, examination, or test. IC

8 A LITTLE BACKGROUND Guardianships for older adults are increasing. Guardianship law and practice is undergoing dramatic revision. Definitions of capacity have evolved to reflect modern understandings of brain dysfunction, functional abilities, and the law. Determining capacity in older adults with complex impairments can be difficult. Limited guardianships based on partial loss of capacity can be challenging for the courts to craft.

9 LIMITED GUARDIANSHIP A limited guardianship is a relationship in which the guardian is assigned only those duties and powers that the individual is incapable of exercising. The concept of limited guardianship is promoted in the National Probate Court Standards, which directs probate judges to detail the duties and powers of the guardian, including limitations to the duties and powers, and the rights retained by the individual.

10 LIMITED GUARDIANSHIP In some cases, such as coma or advanced dementia, individuals are totally impaired by their medical condition. In other cases, a fine tuned assessment may help to identify specific areas even if relatively small in scope in which the individual may retain rights. Examples of limitations to guardianship include rights retained by an individual to: Determine living arrangements. Spend small amounts of money. Make and communicate choices about roommates. Initiate and follow a schedule of daily and leisure activities. Establish and maintain personal relationships with friends and relatives. Determine degree of participation in religious activities.

11 LIMITED GUARDIANSHIP Benefits of Limited Guardianship Maximizes the autonomy of the person with diminished capacity. Is directly responsive to the concept of the least restrictive alternative. Supports an individual s mental health. Encourages the guardian to take into account the wishes of the individual, moving the relationship more toward collaboration and compromise.

12 LIMITED GUARDIANSHIP Primary Risks Increases potential risk of abuse Because capacity changes, may place patient at increased risk for harm to self

13 CAPACITY TO MAKE HEALTHCARE DECISIONS The capacity to make health care decisions requires that the patient have the following abilities (Gurrera, et al. 2006): the ability to UNDERSTAND one's condition the ability to APPRECIATE the consequences (benefits and risks) of the main treatment options including non-treatment the ability to REASON and deliberate about one's options the ability to COMMUNICATE one's decisions in a meaningful manner the ability to judge the relationship between the treatment options and their consequences to one's values, preferences, and goals * A patient must demonstrate intact abilities in every domain listed above

14 JUDICIAL DETERMINATION OF CAPACITY OF OLDER ADULTS IN GUARDIANSHIP PROCEEDINGS AMERICAN BAR ASSOCIATION COMMISSION ON LAW AND AGING AMERICAN PSYCHOLOGICAL ASSOCIATION (2006) The following Pillars of Assessment were recommended based upon a collaboration between the American Bar Association and the American Psychological Association regarding best practices regarding the legal and clinical assessment of capacity

15 6 PILLARS TO ASSESSMENT

16 PILLAR I: THE MEDICAL CONDITION What is the medical cause of the individual s alleged incapacities? Will capacities will likely improve, stay the same, or get worse? Must be as specific as possible Depression and delirium are often mistaken for dementia and need to be ruled out

17 PILLAR II: COGNITIVE FUNCTIONING In what areas is the individual s decision-making and thinking impaired and to what extent? Keys to Consider: Is the individual lucid or confused, alert or comatose Can the individual understand information and communicate their understanding Can the individual remember information over time Consider areas of strength and weakness and the severity of impairment

18 PILLAR III: EVERYDAY FUNCTIONING Many times the most detailed and difficult part of the assessment Should include the following domains: Self-care Maintain hygiene, prepare meals, identify abuse Financial Protect assets, manage checkbook, resist exploitations Medical Make and communicate healthcare decisions, manage acute medical difficulties, manage medications Home and Community Life Maintain minimally safe living environment, live independently, use transportation, use telephone

19 PILLAR IV: CONSISTENCY Are the person s choices consistent with long-held patterns or values and preferences? Do not mistake eccentricity for diminished capacity Actions that may appear to stem from cognitive problems may in fact be rational if based on lifetime beliefs or values Long-held choices must be respected, yet weighed in view of new medical information that could increase risk, such as a diagnosis of dementia

20 PILLAR V: RISK OF HARM What is the level of supervision needed? How severe is the risk of harm to the individual? What degree of supervision will address the individual s needs and mitigate the risk of harm

21 PILLAR VI: MEANS TO ENHANCE FUNCTIONING What treatments might enhance the individual s functioning? Consider if the individual might be able to use technological aids to maintain independence Interventions Education, training, or rehabilitation Mental health treatment Occupational, physical, or other therapy Home or social services Medical treatment, operation, or procedure Assistive devices or accommodation

22 NEUROANATOMICAL CORRELATES OF MEDICAL DECISION MAKING

23 MEDICAL DECISION MAKING CAPACITY IS SITUATIONALLY, CONTEXTUALLY, AND TIME SPECIFIC!! New York state law specifically notes that the determination that a person lacks the capacity to make health care decisions: shall not be construed as a finding that the patient lacks capacity for any other purpose. (NYPHL Article 29-C Section ) This tenant is reinforced by most scholars and legal authorities that publish on capacity (Grisso & Appelbaum, 1998)

24 MEDICAL DECISION MAKING CAPACITY AND CAPACITY TO ENGAGE IN LEGAL TRANSACTIONS A deficit in one capacity does not imply deficits in other related capacities! As the population ages, there will be increased need for the designation of legal proxies across a number of different domains (Kim & Appelbaum, 2006) Types of Capacities: Testamentary capacity: make a will or direct disposition of natural objects of his or her bounty (sound mind only required lucidity at the moment of the designation) Donative capacity: capacity to make a gift to others Contractual capacity: capacity to execute a contract understand the nature and effect of the contract Capacity to Execute a Durable POA: traditionally based on capacity to contract, although this becoming more often challenged in court Capacity to Consent to Sexual Relations: typically defined by state, including variables related to age, mental handicap or other disabling condition (dementia)

25 WHICH REQUIRES A HIGHER STANDARD; CAPACITY TO MAKE MEDICAL DECISIONS OR CAPACITY TO DESIGNATE A POA? As of 2013, only two states had specific language in their state code identifying requirements of capacity to designate a Health Care Proxy (HCP) Utah and Vermont Most other states adopt a more fluid approach that is functionally similar to the Capacity to Contract In general, Capacity to Appoint a POA should include: Understanding that the power gives the agent complete authority Understand that that the power may be revoked at any time while the individual has capacity** wait what? The authority is activated without any formal procedure once medical decision making capacity is lost Appreciate the high level of trust Consistency in designation of the agent

26 VALUE OF FORMAL COGNITIVE CONSULTATION Neuropsychological assessment can provide a more objective assessment than a bedside clinical interview Research has consistently shown a strong link between neuropsychological test performance and functional ability to manage instrumental activities of daily living (IADL) and make informed healthcare decisions

27 VALUE OF FORMAL COGNITIVE CONSULTATION Most research indicates a strong relationship between executive functions and decision making capacity Capacity to perform simple financial management activities appears to be the most vulnerable to initial stages of cognitive decline (Marson, et al., 2009)

28 VALUE OF FORMAL ASSESSMENT Research on clinical decision making suggests: Low reliability of clinical capacity judgments Majority of clinicians do not know legal standards or how to apply them Disciplinary differences in clinician approach Clinicians rely on mental status tests, general impressions, risk tolerance or ageism Huge problem of subjectivity of judgments

29 REVERSIBLE CAUSES OF ACUTE COGNITIVE IMPAIRMENT/DELIRIUM (ADAPTED FROM RUDOLPH, J.L, AND MARCANTONIO, E.R.) Drugs Electrolytes (e.g., sodium, potassium, renal failure) Lack of medications, water, food Infection/intoxification Reduced sensory input (e.g., impaired vision or hearing) Intracranial abnormalities (e.g., TIA, head injury, meningitis, seizure, tumor) Urinary retention or fecal impaction Myocardial (e.g., heart attack, heart failure)

30 MEDICAL CONDITIONS THAT COMMONLY AFFECT CAPACITY Alcoholic Dementia Alzheimer s Disease Bipolar Disorder Coma Delirium* Frontotemporal Dementia Jacob-Creutzfeldt Disease Lewy Body Dementia

31 MEDICAL CONDITIONS THAT COMMONLY AFFECT CAPACITY Major Depression Psuedodementia due to depression Developmental Disorders/Mental Retardation Parkinson s Disease Persistent Vegatative State Schizophrenia Cerebral Vascular Accident Traumatic Brain Injury Vascular Cognitive Impairment Vascular Dementia

32 T-Scores CAPACITY EVALUATION /09/08 Independent Living Scales T-Score: Mean = 50; Standard Deviation = 10 ( Sco res B t wn R ep resent M ild Imp airment : Sco res B elo w 3 0 R espresent Signif icant Impairment ) Repeatable Battery for the Assessment of Neuropsychological Status M ean = 10 0 ; St and ard D eviat io n = 15 Sco res B t w R ep resent M ild t o M o d erat e Imp airment ; Sco res B elo w 70 R ep resent Sig nif icant Imp airment Managing Money Managing Home and Transportation Health and Safety 25 Immediate Memory Visuospatial Language Attention Delayed Memory

33 CAPACITY EVALUATION 06/05/ Repeatable Battery for the Assessment of Neuropsychological Status (Mean = 100; Standard Deviation = 15) 25 Immediate Memory Visuospatial/Constructional Language Attention Delayed Memory 5/9/2008 6/5/2008

34 T-Scores CAPACITY EVALUATION 06/05/ Independent Living Scales T-Score: Mean = 50; Standard Deviation = 10 ( Sco res B t wn R ep resent M ild Imp airment : Sco res B elo w 3 0 R espresent Signif icant Impairment ) Managing Money Managing Home and Transportation Health and Safety

35 QUESTIONS CONTACT INFORMATION: Jon C. Thompson, Psy.D.: ;

36 HELPFUL LINKS Administration on Aging For Professionals: How to Find Help: Alzheimer s Association American Bar Association Commission on Law and Aging American Psychological Association Office on Aging:

37 HELPFUL LINKS Guidelines for Psychological Practice with Older Adults: National Academy of Elder Law Attorneys National Association of Area Agencies on Aging Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists American Bar Association Commission on Law and Aging American Psychological Association 184

38 HELPFUL LINKS National Association of Professional Geriatric Care Managers National Association of State Units on Aging National Council on Aging National Guardianship Association National Institute on Aging

39 REFERENCES Grisso, T., & Appelbaum, P. S. (1998). Assessing competence to consent to treatment: A guide for physicians and other health professionals. New York: Oxford University Press. Gurrera, R.J., Moye, J., Karel, M.J., Azar, A.R., & Armesto, J.C. (2006). Cognitive performance predicts treatment decisional abilities in mild to moderate dementia. Neurology, 66, Kim, S.Y., & Appelbaum, P.S. (2006). The Capacity to Appoint a Proxy and the Possibility of Concurrent Proxy Directives. Behavioral Science and the Law, 24, Marson, D.C., Wadley, V., Griffith, H.R., Scott, S, Goode, P., et al. (2009). Clinical Interview Assessment of Financial Capacity in Older Adults with Mild Cognitive Impairment and Alzheimer s Disease. Journal of the American Geriatric Society, 57(5),

40 REFERENCES Moye, J., Sabatino, C.P., & Brendel, R.W. (2013). Evaluation of the Capacity to Appoint a Healthcare Proxy. American Journal of Geriatric Psychiatry. 21(4), Moye, J., Armesto, J.C, & Karel, M.J. (2005). (2005). Evaluating Capacity of Older Adults in Rehabilitation Settings: Conceptual Models and Clinical Challenges. Rehabilitation Psychology, 50(3),