Transcript CAPACITY AND SURROGATE DECISION MAKING IN GERIATRIC …

CAPACITY AND SURROGATE
DECISION MAKING
Brian E. Wood, D.O.
Associate Professor and Chair,
Dept. of Neuropsychiatry and Behavioral Sciences
Edward Via Virginia College of Osteopathic Medicine
Assistant Professor of Clinical Psychiatric Medicine
University of Virginia School of Medicine
[email protected]
Language
Whenever learning a new system, it is much like learning a foreign language. Classical
Education focuses on language as a medium through which the mind is trained.
Understanding the language of the legal system,
the medical system and the interface of the two are
crucial in understanding the elements of capacity and
competency.
Capacity vs. Competency
Definitions
Capacity is the capability to perform
or produce
wordnetweb.princeton.edu/perl/webwn
“Competence can be seen as a
threshold requirement for persons to
retain the power to make decisions
for themselves.”
Appelbaum and Gutheil, Clincal Handbook of Psychiatry and the Law, second ed.
CAPACITY VS. COMPETENCY
• Medical opinion
• May be more specific
• Refers to ability
• Legal determination
• May be more global
• Refers to ability plus
information and
education.
What must be present to establish
Competence?
Cognitive and Emotional
Recognition (Capacity)
• Ability to comprehend factual information
in some form.
• Ability to utilize factual information to form
conclusions and judgment.
• Individual must recognize emotional impact
and significance of decisions.
• Modulation/containment of emotion
Information
• Factual information must be made
available.
– Ex. Reasonable knowledge about a proposed
surgery must be presented to a patient in order
to establish informed consent for the procedure.
Communication
• Individual must have the capacity to
meaningfully communicate a choice.
• The mechanism of communication may be
debated
– Ex. An individual has a pontine injury and can
only communicate by blinking her eyes. Is this
a meaningful mechanism for communication?
Appreciation of Circumstances
Ability for Factual Understanding
Rational manipulation of Information
Capacity
Factual Knowledge
Communication of Choice
AXIOMS
• Adults (over age 18 or emancipated minors) are
assumed to be competent unless they are
adjudicated otherwise.
• An alleged condition of incompetence must be
proven.
• Opinions regarding competence or incompetence
can always be challenged until a legal
determination has been made.
Summary
• Capacity is an integral component to
competency.
• Competency is dependent on a number of
interrelated components and is therefore a
complicated construct open to legal
interpretation and argument.
• Competency is an assumed condition
provided statutory age is met.
SURROGATE DECISION
MAKERS
BASIC CONCEPTS
• Many surrogate decisions
involve little risk to patient
rights.
• It is appropriate and efficient to
utilize informal protocols for
most surrogate decision
making.
• As risk increases or there is
dissention among interested
parties, there is a need for
increased scrutiny and legal
formality in order to safeguard
patients’ rights.
Surrogate Decisions
Instruction is Predetermined
Advance Directive
Living Will
Decision Maker is Temporarily Assigned
Emergency decisions
Informal surrogate decisions
Decision Maker is Legally Determined
POA
Guardianship
Predetermined Instructions
ADVANCE DIRECTIVES
• Choices or parameters that are set forth by an
individual with capacity to do so at the time that
the document is executed.
• May outline any decision that the individual
would make on his or her own behalf.
• Usually exercised at such time as an individual is
not capable of communicating a decision to others
including caregivers.
Decision Maker Temporarily
Assigned
INFORMAL DECISION
MAKERS
• Persons who know the incapacitated person
and will make decisions on his/her behalf
(usually family or friends)
• reduces the complicated and costly
procedure of guardianship etc.
• common in health care decisions ex. DNR
• has been included in the statutes of some
states.
EMERGENCY TREATMENT
• If delay in treatment may result
in required to preserve life or
to prevent serious impairment
of bodily functions, consent is
implied, although known
directives should be considered.
• Utilize informal/formal
surrogate decision maker as
soon as available.
• If not available then
consultation with other
physicians to establish the
urgency is advisable.
Decision Maker Legally
Determined
POWERS OF ATTORNEY
• Standard assignment:
– decision maker is assigned and in force from
time of execution.
• Durable Power of Attorney.
– Endures incapacity of individual.
• Springing Power of Attorney
– Comes into force when person is incapacitated
but is not in force prior to that time.
Properties and Limitations of
POA
• Person must have capacity in order to assign
• May be as global or as specific as determined
• POA may act in person’s stead but does not
necessarily restrict the person’s ability to act on
his/her own behalf
• Best interest vs. Substituted Judgment standards
– Karen Anne Quinlan case
Guardianship
• Allows for decisions to be made for a person who
is adjudicated incompetent (ward) by another
person appointed by the court to act on his/her
behalf.
• Guardian is required to act in ward’s best interest
as appointed by the court
• Ward does not generally retain the authority to act
on his/her own without guardian.
Necessary Conditions for
Guardianship
• Person is incapacitated to make decisions
regarding his/her affairs.
• Person requires decisions to be made.
• Person is unlikely to regain capacity to
make decisions regarding his/her affairs
(not a temporary remedy although may be
revoked by the court)
Process of Guardianship
• Petition filed by interested party alleging incompetence.
• If the judicial authority accepts probably cause, a
Guardian ad litem is appointed to insure the protection of
the person’s rights until and during the proceedings
• Information is collected and heard by the court
• Guardian is appointed by the court if need is proven
(frequently a relative or person of standing in the
community)
Limits to Guardianship Authority
• May consent to all health care needs with
the exception of “extraordinary
procedures”
– Sterilization procedures
– Psychosurgery
– ECT in some states
Guardianship and Admission to
MH Facilities
• Admission of the incapacitated person by an appointed Guardian
requires:
– The guardianship order specifically grants permission
• Proposed guardian must demonstrate a plan to provide for the
incapacitated person in the least restrictive environment.
– The guardian is not professionally related to the incapacitated
person or have relationship with the facility where the admission is
to occur.
– The admission cannot exceed 10 days duration. If so the
admission requires involuntary commitment.
Advanced Directives and MH
Admission
• A person can specifically grant authority to a surrogate decision maker
to agree to MH admission in the event of his/her incapacity.
– If the patient lacks capacity or does not object.
– Admission cannot exceed 10 days in duration
• A person can specifically grant authority for a surrogate to agree to
admission even over his/her objection.
– Only if AD contains a specific statement from a physician stating
that he/she has capacity and is aware of the ramifications of this
decision.
– The Admission cannot exceed 10 days in duration.
Limitations to Utility
• May take several months (although
guardian ad litem is generally appointed
quickly
• Expensive: >$2000.00.
• Requires someone willing to serve as
guardian.
• Difficult to reverse if ward’s capacity
changes
CONCLUSIONS
• Capacity and Competency are specific to need and ability
• Basic Concept of increasing formality with increasing
risk dictate type of surrogate decision.
• Types of surrogate decision making
– Instruction predetermined
– Decision Maker temporarily assigned
– Decision Maker Determined
• Capacity and Surrogate decision making have wide
ranging implications in treatment of Geriatric patients.
Resources
Virginia Guardianship Association
Post Office Box 9204
Richmond, Virginia 23227
804-261-4046
http://www.vgavirginia.org/default.asp
League of Older Americans, Area Agency on Aging
P.O. Box 14205
Roanoke, Virginia 24038-4205
706 Campbell Avenue, S.W.
Roanoke, VA 24016
(540)345-0451
http://www.loaa.org/