Evaluation for Guardianship Patricia Westmoreland, MD Forensic Psychiatrist 1
Overview Definitions History Procedure Medical Evaluation Report writing Testimony Summary and recommendations 2
Definitions
What is Guardianship? A legal process providing a substituted decision maker for persons who cannot manage their own personal or financial affairs. May be the most inclusive form of substitute decision making for persons who have been adjudicated incompetent Establishes parameters for other more limited types of civil incompetency determinations 4
Further Definitions Guardian: person appointed by court to make healthcare or other decisions for a ward (person not competent to make decisions) Conservator: person who handles the ward s finances Any interested person may apply to serve as guardian 5
History of Guardianship
History of Guardianship Considered the most ancient form of mental health law First legal recognition of need for surrogates to handle the domestic affairs of disabled citizens instituted in the period of the Roman Empire 16 th century English Law: many of the modern trappings of guardianship established e.g. court appointed caretakers Appelbaum 1982, Melton 2007
History of Guardianship 1637: first guardianship petition in the New World (under English Law) Brought to light shortcomings of guardianship Unfortunate result: the examinee s revenues were to be used almost entirely for purposes other than his upkeep. By late part of 20 th century: all 50 states and the District of Columbia have some form of guardianship Droggin 2003, Neugbauer 1987
Guardianship procedure
The Guardianship Process Petition to probate court by an interested party (petitioner) including medical information If probate court determines there is probable cause: court hearing Standard of proof: clear and convincing evidence If court awards guardianship, court appointed visitor follows up with guardian/ward 10
The Medical Report in Colorado Medical information must be attached to the petition to support the need for guardianship This can be a letter or report resulting from a professional evaluation by a physician, psychologist, or other individual qualified to evaluate the respondent's alleged impairment. If not submitted with the petition, the court may order such an evaluation and shall do so if demanded by the respondent. 11
Elements of the Report in Colorado A description of the nature, type, and extent of the respondent's specific cognitive and functional limitations An evaluation of the respondent's mental and physical condition and, if appropriate, educational potential, adaptive behavior, and social skills; A prognosis for improvement and a recommendation as to the appropriate treatment or habilitation plan The date of any assessment or examination upon which the report is based. (C.R.S. 15-14-306) 12
Judicial Analysis of Guardianship Respondent s medical condition, cognitive functioning and everyday functioning Consistency of respondent s choices with previously held values, patterns and preferences Risk of harm to respondent and level of supervision needed Means/treatments to enhance functioning American Bar Association, Commission on Law and Aging, National College of Probate Judges (2006) 13
Guardianship and Mental Health Law Limitations of guardianship in Colorado: A guardian may not initiate the commitment of a ward to a mental health-care institution or facility exceptin accordance with the state's procedure for involuntary civil commitment. To obtain hospital or institutional care and treatment for mental illness of a ward, a guardian shall proceed as provided under article 65 of title 27, C.R.S. (i.e. civil commitment law) (CRS 15-14-316 (4) 14
Conducting a guardianship Evaluation
Components of the Guardianship Evaluation Interview with the evaluee Observations/mental status evaluation Collateral information: Medical documents and opinions Legal documents and court proceedings Ancillary sources of information: family, caregivers, attorney Diagnosis, opinion and summary 16
The interview Identifying information Social history Psychiatric history Medical history Medications Mental status examination Civil competencies (areas in which evaluee sability to act independently are assessed) 17
Types of Civil Competencies Assessed in Guardianship Evaluations Testamentary capacity Voting Marriage Driving Financial transactions Independent living Medical care 18
Mental status Examination General characteristics:appearance, speech, movement, mood, affect, thought content, thought process, insight, judgment Pen and paper tests:folsteinmini mental status examination (MMSE), Frontal Assessment Battery, clock drawing test.
Psychological Testing Cognitive testing Intelligence testing Neuropsychological testing Academic testing Tests for psychiatric disorders Testing for affective disorders Testing for psychotic disorders Testing for malingering
Signs of possible incapacity Cognitive signs Short-term memory loss Communication problems Comprehension problems Lack of mental flexibility Calculation problems Disorientation Behavioral/emotional signs Significant emotional distress Emotional labilityor inappropriateness Delusions Hallucinations Poor grooming or hygiene
Testing: cautionary note Gaps in normative data for very old persons and for diverse linguistic and ethnic groups Comparative analysis of an individual s test performance against age adjusted norms may be misleading especially if that individual s earlier abilities fell outside of the population curve American Psychological Association, 1998
Collateral information Several sources of information to be considered: Medical reports Legal documents Personal discussions with physicians, caregivers, family members, attorneys Important to get as much information as is needed to complete report accurately Do not include superfluous detail
Interpretation of data Consider multiple sources of information: interview behavioral observation tests administered medical record Translate sources of information into diagnostic finding and clinical interpretation
Diagnosis Use DSM diagnoses as of May, 2013: DSM V Important to ensure that all the diagnoses being considered are included better to have a broad differential especially where there is lack of consensus by prior treatment providers and evaluators Can use rule outs (which, in psychiatry, means rule in ) Include conditions of medical concern
Opinion Needs to be well supported Should be rendered after considering all possible sources of information not only the interview Best not to render a preliminary opinion based on the interview only Decide whether or not to discuss opinion with evaluee
Report writing
Second in importance to do no evil is write no evil; documentation has represented the make or break determinant in countless acts of litigation. Appelbaum and Gutheil, 2007 28
When writing a report BEWARE: the lawyers will get ahold of this 29
Questions to ask oneself when writing a report What ambiguity or misperceptions may arise from this note if read in the future by a stranger? Imagining your report being read to a jury by a hostile attorney will greatly aid your perspective in report writing!!! 30
Elements of a good report Organization of data Correctness of data Sound interpretation of data Answering the question that was asked A well-supported conclusion Professionalism 31
Report writing Informed consent: Consent versus assent? From evaluee or guardian? Important to emphasize consultative nature of relationship: i.e. not a treatment relationship Non-confidential nature of relationship Sources of information: list interview and collateral information
Report writing I. Personal Background Information Identifying Information Medical History Medications Military History Religious/Spiritual History Legal History and Violence History II. Psychiatric History and Assessment: Psychiatric History Psychiatric ROS: Alcohol and Drug History: Family Psychiatric History: Physical/Sexual Abuse History:
Report writing III. Current level of functioning: Mental Status Examination Activities of Daily Living (ADLS) Finances Driving Social contacts and leisure activities Voting Testamentary capacity Medical care IV. Collateral Information V. Diagnoses VI. Summary VII. Conclusions VIII. Recommendations
"I have made this letter longer than usual, only because I have not had time to make it shorter. 17th-century French philosopher and mathematician, Blaise Pascal(1623-62) 35
Report Details Level of detail: Achieving the proper amount of detail is a carefully considered balance. Too much detail: distracts from narrative flow, confusing Too little detail: undermines report by creating the impression that the writer s conclusions are poorly founded; can lead to embarrassing questions on crossexamination Drogin and Barrett, 2010 36
Exclusion of detail: Report Details Some details inappropriate to divulge Include in reports only information germane to the purpose for which the communication is made Maintain confidentiality with regard to any information that does not bear directly on the report American Psychological Association (2002), Committee on Ethics Guidelines for Forensic Psychologists (1991) 37
Describing Interpretive Logic Reports are given greater credence when they describe whythe evaluator arrived at a certain forensic opinion Important not to rely on possibility of subsequent deposition or testimony to help flesh out inadequacies in the report: one may not be given that opportunity especially if direct examination is ineffective or crossexamination is too restrictive
Professionalism in report writing Yes:objective, descriptive, dispassionate tone and comments No:derogatory, judgmental, sarcastic, value-laden, mocking, ridiculing remarks or tone; even mildly facetious comments may appear disrespectful, or indicate lack of concern for the evaluee 39
Testimony
Anticipating evidentiary use of the record 41
Testimony Prepare for testimony (or deposition) by rereading report and collateral materials Anticipate questions that could be asked on direct or cross examination Important to consider new information that may be available that was not available at the time of the interview or writing the report Be prepared and appear professional!
Uses of written report in the courtroom Major use: durable statement of interview, examination and document review; so forensically powerful that it operates in converse: if it is not in the report then it did not happen Expert statements often less convincing in court than the record 43
Summary and recommendations
Summary and recommendations Definitions, history and process of guardianship discussed Process of interviewing and examining the evalueeand considering these data together with collateral information is key to writing a good report Report writing: organize, report correctly, address the question asked Testimony/deposition: based on report
Questions?