Transcript Slide 1

Competence
Eric Diu
7th April 2010
Competence
the quality of being competent; adequacy; possession of
required skill, knowledge, qualification, or
capacity
As adjective:
1. having sufficient skill or knowledge
2. suitable or sufficient for the purpose
3. having valid legal authority
Collins Essential English Dictionary 2nd Edition 2006 © HarperCollins Publishers 2004, 2006
CASE 1:
Mrs RB is an 86 year old widow who lives alone. Referred by her GP
with concern of her memory and ability to manage at home.
She is generally vague and recently brings in council rate statements
and land valuation statements. She worries about being evicted and
thought that the land valuation amount represent amount she owes.
She still drives, appears mildly malnourished. Her GP also noted some
deterioration of personal hygiene with patchy soiling on her clothes. On
initial contact over phone she tells ACAT there is no need for a visit,
however she later agrees after GP’s encouragement.
On initial visit, her house is in obvious state of disrepair, with moldy
walls and no working lights in most rooms. The house is malodorous,
likely due to her pet dog urinating inside the house. There is one half
eaten barbeque chicken in the fridge, no fruit or vegetables.
She has ?delusional idea about neighbor’s plot to take her house
(pointing to their power lines which run across her front yard as
evidence). She brings out a small card board box containing several
letters dating back to 1980s regarding council rates for her current
home plus another regional property…..
CASE 2:
Mr KT is a 61 y.o. man with subacute functional decline, reviewed by
neurologist and thought possibly suffering from yet undetermined
neurodegenerative / Parkinsonian plus syndrome. Possibility of Multisystem
atrophy entertained.
He previously lived with a defacto partner in a DOH unit. Following
admission to hospital for fall and urinary tract infection there was further
functional decline and he was discharged to his brother’s care, with hostel
approval as backup plan.
After two months living with his brother he was transferred to hostel and
shortly after upgraded to nursing home.
His previous partner later found out his progress but was barred from visiting
him at the nursing home. Heated arguments and personal accusations
follows regarding his need for nursing home and both parties obtained
advice from the local ACAT team and the guardianship board. The nursing
home manager does not know what to do
A semi-urgent community medical assessment was arranged but the partner
requested gate leave 2 day prior to Ax, brought him back, took him out again
the next morning and left a GP letter at the front desk….
JAMA 2006; 296:691-697
WHAT IS CAPACITY?
•“Ability to understand and appreciate the contexts and decisions, not
the actual outcomes of the choices made.” (Darzins 2000)
Capacity: key concept
A social construct that underpins people’s rights to make
autonomous decisions about their own affairs (make choices of
one’s own life), while establishing a mechanism through which the
need for substitute decision making process can be determined
deals with the process of decision making and does not depend
upon the actual choices made or their functional outcomes
determined by whether individuals can understand and appreciate
information, not whether they can perform tasks
It is not determined by people’s performance in their day to day
activities, such that the effect of individual’s choices on their ability to
thrive has no bearing on the definition
Ultimately the ruling or judgment of capacity is a decision
made in a court of law or by representative of the court.
Concept of freedom vs protectionism, risk to self and risk to others
CASE 3:
Mrs KL lives at home with grandson who is studying at
university.
Referred by daughter with recent personality change,
refusing to listen to her to have showers, more easily
agitated and physically aggressive (pinching her once).
Her sodium level was 124 on admission and she may
have a urinary tract infection, she use a frame and is
less steady than usual. She is fully oriented, can obey
three step commands. Conversation is generally
coherent, but tangential and grandiose, almost to the
point of being hypomanic.
(Her daughter tells you that she cannot be allowed
to return home upon discharge).
1. Legal standard / NSW Attorney general / Society’s view:
a.Presumption of capacity above a certain age – 16
b.Onus is on the party that alleges someone incapacitated to
prove otherwise (Analogy of innocent until proven otherwise)
c.Seek evidence of incapacity and failing that let the
presumption of capacity prevail.
d.Concept of people’s right to (knowingly) making ‘poor’
choices
e.Concept of being capable but uninformed – their situation,
their choices, the likely consequences. People must be
adequately informed , and given every opportunity to learn
about the decision at hand
2. Other key features:
a. Global  domain specific  decision & context
specific
Five Major domains:
•
Personal care decision
•
Health care decision
•
Property and finance decision
•
Advance directives
•
Making a will and granting a power of attorney
2. Other key features:
b. Simple  complex (not referring to seriousness of
consequences)
•
Insulin error  hypo’s  can die
•
Million dollar assets  accountant / trust in place 
feel like treating friend on an all expense paid cruise
holiday
CASE 4:
Ms HD is an 83 years old Polish woman. She has been living in the
same DOH unit for the past 30 years, widowed some 20 years ago, has
no children or relatives.
She has mildly impaired vision and severely impaired hearing. In the
last twelve months she had one admission to hospital with a fall.
She is supported at home from CACP and her neighbors check on her
informally. Her home is very cluttered, there is concern of her cooking
and nutrition, and her mobility.
Her electricity bill was overdue and almost cut off 4 weeks ago. She
seems to have no money left for food. CACP recently had to give her
$50 to pay for groceries and she did not return the change.
She has been vague but also secretive about a possible inheritance or
lottery win, frequently asks to be taken to post “important letters” to
France regarding this.
(CACP staff question her safety and ability to live alone).
2. Other key features:
a. incapacity is sometimes or often reversible
The patient with low sodium who pinched her daughter:
She was thought to have grandiose delusion when mentioning
with heavy accent how she used to live like a Queen in
Spain (this was later confirmed as true - as part of the then
royal family)
So you live at home with your grandson? She promptly correct
the statement, “HEEE… lives with me … Innn my house”.
On initial OT self-care assessment she is disorganised and
took over 40min to dress her upper body (partly because
she keep talking and partly because she just don’t seems
able to follow the steps). She was deemed ‘functioning at
high level care needs – no OT goals identified’.
At 3rd week … her general affect not changed much BUT …
2. Summary key features:
a. Global  domain specific  decision & context
specific
b. Simple  complex (not referring to seriousness of
consequences)
c. incapacity is sometimes reversible
d.
the majority of apparently incapable decisions are made by capable
people ?
e.
It is not beyond doubt that substitute decision makers always make better
decision than incapable people (dementia carer for developmentally delay
persons)
Assessment
Who can assess capacity?
a.No strict criteria on who can and who cannot assess decision
making capacity.
b.Ultimately it is left to the discretion of the courts whether to
accept the evidence of the people who gathered them.
c.Commonly professional in the relevant fields are involved:
i.Lawyers  making wills
ii.Bank managers  eg. Large sum withdrawal etc
iii.Doctors  medical consent, and often called to provide
opinions about their patient’s capacity on non-medical
decisions
What is the role of Health care professionals in
regards to capacity assessments?
Limited to providing testimony as an expert witnesses to
the courts
Published
2008
Am J Geriatr Psychiatry 15:2, February 2007
Physician assessment of patient competence
Markson et al. J Am Geriatr Soc 1994; 42(10):1974-80
Using mail survey with specific questions about a patient scenario and
general questions about the law.
Adapted from a court case that involved an elderly woman’s refusing life
saving surgery.
Respondent were asked whether the patient was competent, whom they
would consult, and how they would respond.
823(41%) internist, surgeons, psychiatrists responded. Before the
psychiatrist’s opinion 58% felt the patient is competent, 92% would consult a
psychiatrist, only 17% would go to court.
After knowing the Psychiatrist’s opinion, only 30% thought she was competent
and 55% would go to court.
89% knew the correct standard for competence, but often apply it incorrectly
in scenario questions, and most incorrectly responded that conditions such as
dementia and psychosis establish incompetence.
Cognitive models that predict physician judgments of capacity
to consent in mild Alzheimer’s disease
Marson DC et al. J Am Geriatr Soc 1997; 45:458-464
29 mild AD subjects. Five physicians review video assessment independently. Poor
overall agreement rate of 56%. Hypothetical decision whether to pursue medical or
surgical treatment of CAD.
Cognitive models of physicians’ legal standard and personal
judgments of competency in patients with Alzheimer’s disease
Marson DC et al. J Am Geriatr Soc 2000; 48:911-918
Follow-up study with intervention to same design (education and structured assessment).
This time physician were education on how to assess the five standards of competency,
then rate if subject achieve each standard before deciding final opinion of competency.
76% agreement on personal competency judgments. (Kappa 0.48). Understanding the
treatment situation and choice is the legal standard that is associated most closely with
a physician’s judgment of competency. 5% of the controls were judged incompetent.
1.The six steps – (Darzins 2000)
(however no validated method of scoring / setting threshold)
a.Valid trigger present – to justify need for assessment
( rather than assessing their capacity to consent to
assessment) - otherwise don’t waste your time
b.Co-operation – engage the person
c.Info gathering – to describe the contexts / choices /
consequences – the person’s value, goals and beliefs
(what is most important or of greatest concern to them).
d.Education
e.Assessment - communication / timing / environment
f.Acting on outcome
Initial briefing:
Their capacity has been called into question by a person according to
a broader community standard, and that either they themselves or
others are at risk due to this (eg. kitchen fire, fall and injury)
Capacity assessments will proceed regardless and they are
encouraged to participate
It is in their best interests to be involved and provide evidence so that
the best possible judgments can be made
A defined process will be followed and the capacity assessment
process is described
If the assessments lead to a determination of capacity, they will
continue to make decisions
If as a result of the assessments they are deemed incapable,
substitute decision makers will be appointed to make decisions for
them.
1.The first two of the six steps – (Darzins 2000)
a.Valid trigger present – to justify need for assessment
(rather than assessing their capacity to consent to
assessment) - otherwise don’t waste your time
b.Info gathering – to describe the contexts / choices /
consequences – the person’s value, goals and beliefs
(what is most important or of greatest concern to them).
(A Sensitive topic . Media beat up. TV. Talk back radio.)
(Today tonight – finance / change of wills etc)
Graeme WYLIE - R v Justins
Two women, Shirley Justins and Caren Jennings, recently stood trial over
the death of Graeme Wylie, a man suffering from Alzheimer’s disease.
Jenning, a close friend of Wylie, travelled to Mexico to obtain the drug
Nembutal, a drug that is illegal in Australia. The court found that because of
his advanced dementia Wylie no longer had the capacity to make a decision
to end his own life.
Wylie’s long-term partner, Shirley Justins, was found guilty of manslaughter,
while Caren Jenning was found guilty of being an accessory to
manslaughter, and of importing Nembutal. Justins was sentenced to 22
months of weekend detention. Before the sentence was handed down
Caren Jenning, aged 75, took her own life using the same drug, Nembuta
Police prosecutor Justin Watson said Wylie's will on his 2.5m estate had
been changed to benefit Ms Justins shortly before his death. Sergeant
Watson said the changes meant Ms Justins would receive more funds from
the will while the deceased's two daughters would receive less.
Seven to pay $240,000 for
Today Tonight libel
Sydney morning Herald, July 9, 2009
The Seven Network has been ordered to pay $240,000 in
defamation damages to a mortgage broker falsely portrayed
as having fleeced $1 million from a dementia patient.
“She kept forgetting, so this mortgage broker took everything
she had…”
In awarding the damages to Peter Mahommed today, Justice
David Kirby said the elderly woman had not suffered from
dementia and was a "practised fraudster".
ASSESSMENT:
SPECIAL POINTS TO REMEMBER
Special points:
Communicaton
Fluctuation
Denial
delusion
Depression
Special points:
Communication
Fluctuation
Denial
delusion
Depression
Special points:
Communication
Fluctuation
Denial
delusion
Depression
Special points:
Communication
Fluctuation
Denial
Delusion
Depression
Special points:
Communication
Fluctuation
Denial
delusion
Depression
FAQ:
Legal legislation you need to know
Internal Medicine Journal 2005; 35: 482–487
Guardianship Act 1987
Section 4: General principles
It is the duty of everyone exercising functions under this Act to observe the following principles:
(a) the welfare and interests of such persons should be given paramount consideration
(b) the freedom of decision and freedom of action of such persons should be restricted as
little as possible
(c) such persons should be encouraged, as far as possible, to live a normal life in the community
(d) the views of such persons in relation to the exercise of those functions should be taken into
consideration
(e) the importance of preserving the family relationships and the cultural and linguistic
environments of such persons should be recognised
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to
their personal, domestic and financial affairs
(g) such persons should be protected from neglect, abuse and exploitation
(h) the community should be encouraged to apply and promote these principles.
Guardianship Act 1987
Part 2 – Appointment of enduring guardians
Part 3 – Financial management
Part 4 – Directions to guardians
Part 5 – Medical and dental treatment
Part 6 – The Guardianship Tribunal
Part 7 – The Public Guardian
Enduring Guardian
Someone you legally appoint when you have capacity,
to make personal decisions for you if you lose capacity.
Enduring Power of Attorney
A legal document to appoint an attorney or attorneys
who can act on your behalf in financial matters under
your instruction while you have capacity or without your
instruction if you lose capacity.
General Power of Attorney
If you lose capacity a general power of attorney ceases
to have effect.
Protected person means a person whose estate (or
part of whose estate) is subject to a financial
management order that is in force.
Guardianship Act 1987
Section 6E: Functions of enduring guardians
An enduring guardian, while the appointment has effect, may
exercise the following functions:
(a) deciding the place (such as a specific nursing home, or the
appointor's own home) in which the person is to live,
(b) deciding the health care that the person is to receive,
(c) deciding the other kinds of personal services that the person is to
receive,
(d) giving consent for medical or dental treatment on behalf of the
person,
(e) any other function relating to the person that is specified in the
instrument.
When and how enduring guardianship becomes
activated?
The guardianship act 1987
Section 6N: Evidence as to appointor's capacity
In any proceedings in which the question of whether, on a
particular day or during a particular period, the appointor of
an enduring guardian was a person in need of a
guardian is in issue, the certificate of a medical practitioner
to the effect that the appointor was, on that day or during
that period, totally or partially incapable of managing his or
her person because of a disability is evidence of the fact that
the appointor was a person in need of a guardian.
Who is on the Tribunal?
For the majority of matters the Tribunal sits in panels of three members with
one member from each category (legal, professional and community
members) Very occasionally four members will sit. No more than five can sit
on a panel.
Applications for medical consent, reviews of guardianship and financial
management orders can be heard by fewer than three members.
The presiding member is an Australian lawyer with at least seven years'
experience.
The professional member is a person such as a doctor, psychologist or social
worker who has experience treating and assessing people with disabilities.
The community member either works with people with disabilities or has
personal or familial experience of people with disabilities.
Names the guardian who has been appointed by the Tribunal, the length
of their appointment and their functions.
The Public Guardian is a
substitute decision maker,
not a substitute caregiver
or case manager.
How long does an order last for?
For first time guardianship applications, the Tribunal can make an order for
up to three years. However, most initial guardianship orders are made
for 12 months or less.
The Tribunal will hold another hearing to review the order near the time it is
due to end. On these occasions, the Tribunal may make an order up to
three years or, in certain circumstances, up to five years.
A financial management order lasts indefinitely unless the Tribunal
specifies in the order that it is to be reviewed within a particular timeframe.
Financial management orders are not automatically reviewed. However,
anyone who has a genuine concern for the welfare of the person can apply
at any time for the order to be reviewed if they have sufficient grounds for
doing so. If the Tribunal adjourns a financial management application to
seek further information about the person's capability to manage their
finances, it can make an interim order lasting up to six months.
Substitute decision maker & Substitute consent
Legal order for “person responsible”
Urgent / Minor / major / special medical procedures
Who cannot give consent to their own treatment?
Provisions of Part 5 of the Guardianship Act
A person (16 years and above) cannot give valid consent to their
own treatment if they:
1. cannot understand the nature and effects of the proposed
treatment; or
2. cannot communicate whether or not they consent to the
treatment.
The Guardianship Act also establishes:
1. who can give valid substitute consent on behalf of a patient
who is incapable of consenting (ie. who can be a substitute
decision maker)
2. when treatment can occur without consent
3. the penalties for practitioners who fail to obtain a substitute
consent when required.
Who is a substitute decision maker?
A substitute decision maker is someone who has legal authority
to make decisions on behalf of someone else. (in legal
standing as if the person is making the decision himself)
A substitute decision maker can be:
1. the person responsible
2. a guardian appointed with a medical and dental consent
function
3. the Guardianship Tribunal.
So who is the person responsible?
Who is the person responsible?
A person responsible is not necessarily the patient's next of kin.
There is a hierarchy of people who can be the person responsible. They are (in this
order):
1 A guardian (including an enduring guardian) who has the function of consenting
to medical and dental treatments.
2 A spouse or de facto spouse or partner where there is a close, continuing
relationship.
3 A carer who provides or arranges for domestic support on a regular basis and is
unpaid. (If the person is in residential care, then the carer before the person went
into residential care.)
4 A close personal friend or close relative where there is both a close personal
relationship, frequent personal contact and a personal interest in the patient's
welfare, on an unpaid basis. (grey area: boarding house manager)
Scenario:
A patient admitted to Concord psychogeriatric ward 17
with dementia and anxiety disorder has significant dental
decay, symptomatic peri-odontal abscess and broken
teeth that need to be extracted.
She is usually anxious and say no to almost everything.
But her mouth is sore and she is eating less.
Her daughter who lives with her the last 10 years agrees
to the procedure as it is obviously for her best interest.
To obtain medical or dental consent
from the Guardianship Tribunal:
Fill in a consent to medical and dental treatment application form.
Fax or mail the application to the Guardianship Tribunal.
The Guardianship Tribunal will convene a hearing and contact the
treating practitioner. (usually by phone, as soon as is required).
The Guardianship Tribunal will give or withhold consent at the
hearing and will advise the applicant.
The applicant and patient will receive a written copy of the decision
and the reasons for it.
Be aware of relevant legislations (and changes)
Remember key concepts
NSW attorney general’s Capacity Toolkit booklet
No validated method
However consider using a semi-structured
assessment process such as ‘the six step capacity
assessment process’
Take time and care to conduct & record assessment
Additional references:
Who can decides? A six step capacity assessment process
Darzins P, Molloy, W & Strang, D 2001 Adelaide: Memory Australia Press.
Perkins C. Assessing capacity
NZFP 2002;29(1);41-43
Appelbaum PS. Assessing patient’s capacities to consent to treatment
NEJM 1988;319(25);1635-38
Bennett H. et al. Guardianship and financial management legislation:
what doctors in aged care need to know
IMJ 2005; 35: 482–487
NSW Guardianship Tribunal www.gt.nsw.gov.au
Office of Public Guardian www.lawlink.nsw.gov.au/opg
Public Trustee www.pt.nsw.gov.au