Civil CompetenciesCivil Competencies

June 16, 2014

A list of possible civil competencies Work Drive Parent Make financial decisions Make medical decisions Provide informed consent Care for oneself/property Enter into legal contracts

Assessment Steps (Moberg & Kniele, 2006)

Interview, including collaterals Neuropsychological testing Functional ability assessment Review of legal standards

Rationales for Civil Competency Rationales for Civil Competency RulesRules

People have the right to self-determination (personal freedom preserved when possible) – “It’s your right”

In decision-making, people have the right to reasonable, full disclosure

Disabled people are entitled to services (social security determination, etc.)

Therefore, we need definitions and processes to determine the course of action when cognitive deficits affect these factors

As before, competency is functional

GuardianshipGuardianship What is guardianship (sometimes called conservatorship)?

delegation, by the state, of authority over person or estate; general vs. specific guardianship

Who qualifies? Incapacited person is “any person who is impaired by reason

of mental illness, mental deficiency, physical illness or disability, advanced age…or other cause (except of minority age) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person”

More specific rules in some states require finding of inability to care for personal safety or to attend to food, shelter, clothing, or medical care, without which physical illness or injury would occur

de facto (factual) vs. de jure (ruled) incompetence; civil commitment usually results in de facto incompetency

Guardianship (cont’dGuardianship (cont’d) Guardianship proceedings generally not rigorous

Most states allow determination as to whether the alleged incapable person should attend hearing

Getting out of incapacity is difficult Guardianship services Guardianship can be abused

Three issues in guardianship determination whether a guardian is needed who the guardian should be what the guardian should do

Guardianship Questions

Is a guardian needed? only an issue in “de facto” cases very loose and informal ambiguous standards; most states require finding

“threshold” mental illness clinical evaluation: take care to evaluate what the

person can and cannot do “Community Competency Scale” a good start, but little

empirical data; requires person to perform actual tasks utilize ecological assessment home visit useful, analyze typical day guardianship of person vs. estate (not really different

when estate is not complex)

Community Competency Community Competency ScaleScale

Subscales: (akin to ADL’s) Judgment, Emergencies, Acquiring Money,

Compensation for Incapacities, Managing Money, Communication, Care of Medical Needs, Adequate Memory, Satisfactory Living Arrangements, Proper Diet, Mobility, Sensation, Personal Hygiene, Maintenance of Household, Utilization of Transportation, Verbal-Math Skills

Searight, Oliver & Grisso (1983). The Community Competence Scale: Preliminary Reliability and Validity. American Journal of Community Psychology, 11, 609.

Guardianship Questions Guardianship Questions (cont’d)(cont’d)

Who will be guardian? appointment likely a matter of policy or

law; less likely the product of a mental health practitioner’s opinion

What will the guardian do? objective standard: do what actions will

best serve the ward subjective standard: do what guardian

thinks is best best-interests principle usually applies

Alternatives to Guardianship Guardianship is expensive (several $K) Guardianship involves severe deprivation of

rights; alternatives less so Power of attorney: signer (grantor) must be

competent, and must designate an agent or “attorney-in-fact” Ways of dealing with incapacity

Document can say that the principal wants document to remain in effect after incapacity; this makes the POA durable

Document can go into effect when the person becomes incapacitated; this is a springing POA; should define how and when incapacity will be determined

Alternatives to Guardianship (cont’d) Living Trust

Assets legally transferred to trustee Assets managed on behalf of beneficiaries Typically used for larger estates Avoids probate Although typically executed in ‘estate’

(death) planning, is useful in planning for incapacity – needs to have an incapacity clause

Assessing Capacity to Manage Assessing Capacity to Manage AffairsAffairs

Historically has been based on informal ratings or impressions, or on reports from family

Direct assessment approaches may be useful

Everyday memory questionnaires/scales (e.g., Rivermead)

Financial Capacity Instrument (Griffith et al, 2003) Semistructured Clinical Interview for Financial Capacity

(Marson et al, 2009)

Marson, et al., JAGS, 2009

Marson et al (2009) cont’d

Advanced DirectivesAdvanced Directives Instruction from a competent individual

regarding actions to be taken in the event of incompetence

Binding on the guardian Types

Living will, living trust Durable power of attorney

Statutes require patients to be provided with information about such directives

Essentially a “competence to consent to treatment” decision

Capacity to Consent to Treatment “In general … and certainly in the case of

medical treatment, persons have the right to make decisions that may lead to harm unless their ability to make autonomous choices is so limited that we consider them incompetent (or lacking capacity).”

“Self-determination, when not substantially impaired, trumps the interest in promotion of well-being and protection from harm.”

But WHY would respect for autonomy trump protection from harm?

Grisso T. & Appelbaum, P.A. (1998). Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health Care Professionals. New York: Oxford University Press,, p. l3-l4.

Protection from Harm

Respect for

Autonomy

Balancing Respect for Autonomy With Balancing Respect for Autonomy With Protection from HarmProtection from Harm

Capacity to consent to treatment is a legal construct

“Informed consent" means consent voluntarily given by a person after a sufficient explanation and disclosure of the subject matter involved to enable that person to have a general understanding of the treatment or procedure and the medically acceptable alternatives, including the substantial risks and hazards inherent in the proposed treatment or procedures, and to make a knowing health care decision without coercion or undue influence.”

Title XLIV, Civil Rights, Chapter 765, Health Care Advance Directives; 765.101[9] FL. State Statutes.

Capacity to consent to treatment is a legal construct

“"Express and informed consent" means consent voluntarily given in writing, by a competent person, after sufficient explanation and disclosure of the subject matter involved to enable the person to make a knowing and willful decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.”

Title XXIX, Public Health, Chapter 394, Mental Health; 394.449[9] FL. State Statutes.

The HCP must provide enough information for the patient to make a “knowing” decision:

patient’s diagnosis proposed treatment and its risks and benefits alternative treatments and their risks and benefits the risks and potential benefits (if any) of no treatment

Competency to consent to treatment Disclosure of relatively complete

information by a clinician… …within a context that allows for

voluntary choice… …by a patient who possesses

relatively adequate capacity to consent or decline the recommended treatment

Treatment: Treatment: DisclosureDisclosure

From the point of view of the clinician From the point of view of the patient Courts usually sanction limited disclosure

(not at the level that would satisfy a medical practitioner, but that would contain a recitation of risks and benefits)

Clinicians must be willing to share authority

Treatment: Treatment: CompetencyCompetency

Competency must be evaluated if question is raised

When is the issue raised? when treatment is refused protect against subsequent tort action in the

case of major medical procedure Conceptual aspects of elements of competency:

expression of preference/choice, understanding, reasonable decision-making process, reasonable outcome

“Consent to treatment” situations are treated differently, depending on the stakes

Treatment: Treatment: VoluntarinessVoluntariness

A difficult issue because of the authority-laden context in which such decisions are made

Competency vs. voluntariness is not easy to separate: e.g., a person who has a resonable understanding of situation but makes decision under duress; is this incompetence?

Competency as interactive construct

Attributions that discourage Attributions that discourage competency assessmentscompetency assessments

If the patient agrees with treatment recommendations, capacity must be intact

I am trained to provide treatment I can’t participate in a patient’s decision

to die I know what is best for the patient I am better trained than the patient to

understand the implications of his decisions

Guide for “consent to treatment” determination

Capacity/Competence Understand information relative to

the decision Appreciate significance of

information relative to decision Ability to reason with relevant

information so as to weigh treatment decisions

Ability to express a choice

Ability to Ability to express a express a choicechoice::

Among the four components of capacity, ability to express a choice is more of a threshold ability

Absence of this ability is sufficient to warrant a finding of incapacity.

It may be necessary to utilize eye blink, gestures, pointing (nonverbal communication strategies) or an interpreter (foreign language, American Sign Language, etc.) in order to communicate with a particular patient.

Ability to understand: Ability to understand is often the most

salient ability from a legal perspective. Consists of the ability to acquire and be

able to repeat back, in one’s own terms, the nature of the condition, recommended treatment, and its benefits and risks, within the time frame necessary for making a decision and expressing a choice.

May be impaired by thought disorder, delusions, extreme emotional states, dementia, mental retardation.

Ability to appreciate: Inferred from the patient’s

acknowledgement that she/he may indeed have the condition in question - application of the diagnostic information to oneself.

Inferred from the patient’s acknowledgement that she/he may likely suffer the consequences of the condition if it is not treated - application of the prognostic information to oneself.

Consists of the person’s beliefs about the information.

Impaired via patently false beliefs.

Issues regarding appreciation: Disagreement with the HCP’s characterization of the

condition and prognosis is NOT adequate proof of incapacity.

Incapacity may be inferred when NON-acknowledgement results from:

substantially irrational, unrealistic beliefs, or distortions of reality, relative to the beliefs behind the choice

the suspect belief results from impaired cognition or affect the suspect belief must be relevant to the patient’s treatment

decision (the mere presence of an irrational belief does not prove incapacity)

religious beliefs that are not purely idiosyncratic, that predate the decision, and have been consistently held do NOT constitute impairment of appreciation

Ability to reason: Consists of the ability to manipulate the relevant

information rationally or logically. The focus is on how information is processed

relative to the person’s values, preferences and beliefs.

Functional reasoning should demonstrate: sufficient sustained focus on the problem. at least some consideration of the available options. deliberation, during which there is consideration of

consequences in terms of their probability and desirability relative to one’s values and preferences.

A “bad choice” is NOT proof of impaired reasoning!

Competency to Consent to Competency to Consent to TreatmentTreatment Questions in Determining

Competency has full disclosure (information-

giving) occurred? is the individual competent to consent

to treatment? is the consent voluntary?

Applebaum, 2007, NEJM, 357, 1834-1840.

Informed ConsentInformed Consent Purposes:

to promote individual autonomy to encourage rational decision-

making Consequences of Failure to Give IC

battery or negligence can be charged if treatment given to a person whose consent is invalid

Research on Informed Consent

Adherence to “full disclosure” is rare patients not typically allowed to determine

alternative treatments negative information omitted

Competency difficult to assess because difficult to know if gaps in knowledge result

from failure to disclose or incompetency Doubt raised about whether most treatment

decisions are made voluntarily consent usually obtained “pro forma” demand effects

Competency to Consent to Competency to Consent to ResearchResearch Informational duties of researchers

nature and purposes of research risks and benefits of participation alternative available treatments limits of confidentiality compensation/treatment for injuries who to contact with questions statement that participation is voluntary statement about withdrawal of participation

Testamentary CapacityTestamentary Capacity Test is easy to state, difficult to apply Essentials of testamentary capacity (the

literate version): “It is essential that a testator shall understand the

nature of his act and its effects; the extent of the property of which he is disposing, and shall be able to comprehend and appreciate he claims to which he ought to give effect, and, with a view to the latter object, that no disorder of mind shall poison his affections, pervert his sense of right, or his will in disposing of his property, and bring about a disposal of it which, if his mind had been sound, would not have been made”.

Testamentary Capacity (cont’d)Testamentary Capacity (cont’d) Goddard v. Dupree (1948 Mass Supreme

Court): Testamentary capacity requires ability on the part of

the testator to understand and carry in mind, in a general way, the nature and situation of his property and his relations to those persons who would naturally have some claim to his remembrance. It requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. And it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.

Testamentary Testamentary CapacityCapacity

Must know a will is being made Must know nature and extent of property Must know “natural objects of one’s bounty” Must know how the will actually distributes

property; assessment of consequences is important

Must have "memory sufficient to collect in his mind the elements of the business to be transacted, and to hold them long enough to perceive, at least their obvious relation to each other, and to be able to form a reasonable judgment as to them."

Testamentary Capacity IssuesTestamentary Capacity Issues Must have capacity at the time the will is

executed. What if deteriorating? Burden of proof on person bringing forth the will,

but, Presumption of capacity Presumption of continuity (e.g., prior “insanity”

ajudication) Burden shifts to contestant after will enters probate

Evidence Family observations (not impartial) Lawyers, hospital witnesses Medical records

Testamentary Capacity Testamentary Capacity (cont’d)(cont’d)

Mental illness not enough Prejudice, even ill founded, is not

equivalent to lack of capacity Prejudice vs. “insane delusion” Self-determination vs. atypical

distribution Dividing line is “rationality” Remember: goal is to assist trier of fact

Clinical Evaluation of Clinical Evaluation of Testamentary CapacityTestamentary Capacity

“Bad decisions” don’t necessarily signal incompetency

Burden on petitioners in case of will contestation Often, subject of evaluation is deceased, though

some states have antemortem probate statutes If dead: information will have to be collected

from collaterals and from medical records If alive: functional evaluation of five

testamentary standards can proceed; recommend videotape

Beware of financial biases

Components of Testamentary Components of Testamentary Competency: EvaluationCompetency: Evaluation

Knowledge of making a will: direct questioning, including evaluation of “undue influence”

Nature/extent of property: correlating inventory with report; occupational, possessions, intangibles, etc. are targets

Natural objects: ascertain actual values, beliefs, and preferences of testator; don’t automatically assume that “reasonable person” standard means “like me”; ask who played major role in life

Manner of disposition: knowledge of likely impact of will; understanding of general consequences; is this understanding c/w values, beliefs determined above?

Memory: can be evaluated with financial capacity questions or neuropsychological tests

“Patient X had been diagnosed with congestive heart failure, arterosclerotic disease, and kidney

failure. All of these are commonly associated with impairment of brain function. Congestive heart

failure and arterosclerotic heart disease result in progressive anoxic encephalipathy (sic),

destruction of brain cells as a result of poor blood circulation in the brain, resulting in diminished

oxygenation of brain tissue which is vitally dependent on same. Metabolic encephalipathy is the

destruction of brain cells as a result of chemical abnormalities in the body and its fluids. The

nurses’ notes for Mr. X’s final hospitalization reflect recurrent observations of irritability, anger,

confusion, and inattentiveness. On (date), the nurses’ notes reflect urinary incontinence, while

physicians’ notes indicate that Mr. X was too weak to sit up, that his prognosis was grave and

chance for survival small. Within a reasonable degree of psychological certainty, such observations

and notations indicate that the factors referred to above had, by (date) if not earlier, resulted in

substantial impairment, if not destruction, of Mr. X’s judgment, foresight, organizational thinking

capacity, reasonability, and ability to understand the nature and consequences of his actions. This

impairment was present for the last 48 to 72 hours of Mr. X’s life, and within reasonable

psychological certainty, would prevent Mr. X from fully appreciating the extent of his possessions,

their value, location, and disposition.” Then at deposition, he says “He suffered, in his last week to

ten days perhaps, a primary degenerative dementia causing him to be particularly vulnerable and

susceptible to the intrusion of the thoughts of others.”