Transcript Document

Society’s (California’s) Struggle
With Cognitive Decline
2013 Elder Abuse Conference
May 21, 2013
Tony Chicotel, Staff Attny
California Advocates for Nursing Home Reform
www.canhr.org
[email protected]
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Training Roadmap
Defining Capacity
 Capacity Determinations Clashing with
Individual Rights
 Surrogacy
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Defining Capacity
Dictionaries: “capable,” “carrying”
(knowledge)
 Capacity ≠ Competency
 Statutes and Cases
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DPCDA
 Issue-centered capacity
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Due Process in Competency
Determinations Act
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Probate Code Sections 810 et. seq.
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Sets a judicial standard for competency
Section 810(a): presumption of capacity
Section 811 - Functions to consider: 1) alertness and
attention; 2) information processing; 3) thought processes; and
4) ability to modulate mood and affect.
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Section 812 - Presumption shifts if there’s functional
impairment. Capacity may still be proven if the person can
communicate a decision and understand the nature of the
decision, including risks, benefits, & alternatives.
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Section 813 - Medical Decision-Making: respond, participate,
& understand
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Capacity to Contract
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incapacity is defined as entirely without
understanding (Civ. C. §§ 38, 39) or to be of
unsound mind (Civ. C. § 1556)
understand the nature, purpose, and effect of
the terms (In Re Rains, 428 F.3d 893 (2005))
generally, the greater the financial risk, the
greater the understanding required
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Capacity for Incapacity
Planning
AHCD: ability to understand the nature
and consequences of a decision and to
make and communicate a decision (Prob.
C. § 4609)
 DPOA: Same as capacity to
contract(Prob. C. § 4120)
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Health Care Decision Making
The ability to understand the nature and
consequences of a decision including its
significant benefits, risks, and alternatives
and to make and communicate a decision
(Prob. C. § 4609; Prob. C. § 813)
 determined by the primary care physician
unless otherwise stated in an advance
directive (Prob. C. § 4658)
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Financial Decision Making
determined by method stated by principal
in a power of attorney;
 Conservatorship of the Estate standard:
“substantially unable to manage his or her
own financial resources or resist fraud or
undue influence” (Prob. Code Section
1801(b))
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Personal Decisions
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Conservatorship of the Person standard:
“unable to provide properly for his or her
own personal needs for physical health,
food, clothing, or shelter.” (Prob. Code
Section 1801(a))
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Capacity is a Continuum
As the gravity of the decision increases,
generally the level of capacity needed
increases. (Signing for re-fi of the house
versus choosing paint color for the house)
 At some point, basic capacity is enough
for all decisions, regardless of gravity.
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Unreliability of Capacity
Determinations
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Marson, Daniel C., Journal of the American
Geriatric Society (April 1997): 5 docs with extensive
experience in assessing dementia were asked to
determine capacity for 29 A.D. patients. The docs
had 56% agreement. The results were deemed
“alarming,” proving physician competency
assessment is “subjective,” “inconsistent,” and
“idiosyncratic.” The use of a specific definition of
capacity improved physician agreement. (76%).
A doctor’s declaration of incapacity is evidence of
incapacity but not legally conclusive.
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Capacity vs. Competency
Only a court’s determination of
competency may be used to ignore or
override a person’s rights.
 We see common rights violations with
placement, treatment, and visitation.
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Surrogate Decision Making Hierarchy
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Conservator
3200 Petition
Agent
4711 Oral Designee
Spouse
Family
1418.8 IDT
Notice, health care
providers are not
included
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Health Care Providers May Not
Act as Surrogates
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Informed consent cases
Hlth. & Safe. § 1418.8
AB 891 (1999) and 2340 (2006)
Prob. Code § 2355 (conservators need
special powers)
AHCD, Prob. Code § 4701 (providers may not
act as agents)
Probate Code § 4689
Hlth. & Safe. § 1569.698(b)(7)
Bias
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A Note About Public Guardians
Surrogate of last resort
 Case selection is largely discretionary.
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Surrogacy Limits
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Surrogates are only empowered if the principal
has lost “capacity.”
Regardless of principal’s ability, surrogates
may NOT override a refusal without court
authorization. (Keyhea (178 Cal App 3rd 526):
competence is a judicial determination; Probate
Code § 4689)
Surrogates can provide consent for treatment
that principal does not refuse, cannot consent to
forcible administration of treatment without court
approval.
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Case Study: Antipsychotic
Drugs and Dementia Care
Basics:
Enormous
increase in number of people living
with dementia
Dementia characterized by confusion,
diminished cognition, declining ability to
communicate
Communication efforts become “behaviors”
(medicalized as symptoms - BPSD)
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Case Study: Antipsychotic
Drugs and Dementia Care
What Happens:
Caregivers confronted, even
overwhelmed, with behavioral challenges
Antipsychotic drugs often “reduce”
behaviors
Medicalized problem deserves
medicalized solution
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Case Study: Antipsychotic
Drugs and Dementia Care
Impact:
 FDA Black Box Warning: nearly doubles
risk of death
 Outperformed by placebos
 Non-pharmacologic alternatives: superior
outcomes, cheaper, no side effects
 Nursing home law requires personcentered care, least-medicating approach
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Campaign to End AP Misuse
and Improve Dementia Care
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