Medical Decision Making Capacity

and Pennsylvania Law

Susan E. Rushing MD, JDUniversity of PennsylvaniaDepartment of Psychiatry

Introduce Concept of Medical Decision Making Capacity

Review Pennsylvania Law: Act 169

Discussion - Ensuring that Patient’s Preferences Regarding Medical Care are Honored

Distinguish the Mental Health Procedures Act from issues in Act 169

Objectives

Information

Voluntariness

Decision Making Capacity

Informed Consent Requires 3 Elements :

Competence is a legal concept◦ Determined in a court of law◦ Decision is legally binding but can be revisited and reversed if

competence is restored

Decision Making Capacity (DMC) – evaluated by physicians when patient appears to have deficits in medical decision making◦ Can be determined by a medical doctor◦ Specific to a particular decision

Ex - To sign out AMA today, to refuse dialysis, to consent to surgery◦ The legal standard the attending physician is held to is a reasonable

degree of medical certainty that the patient lacks capacity Can be reviewed by judicial officer but this rarely happens

Competence vs. Capacity

Determine whether patient has capacity to:

* Consent to Treatments with High Risks

* Refuse Treatments

* Sign out Against Medical Advice

* Make Disposition Decisions

Common Reasons for Consultation

Patient’s ability to-

◦ Communicate a Choice

◦ Understand the Relevant Information

◦ Appreciate the medical consequences of the situation (problem and the solution)

◦ Reason About Treatment Choices Logical Consistency Should be consistent with stated goals and values

Evaluation of DMC must assess:

What have you decided regarding your treatment?

Can you tell me your decision?

What is making it difficult for you to decide?

Communicate a Choice

Please tell me in your own words what your doctor told you about: ◦ Your health?

◦ The recommended treatment?

◦ The possible risks and benefits of treatment or no treatment ?

◦ What are the alternative options?

Understand the Relevant information

What do you believe is wrong with your health now?

Do you believe that you need some kind of treatment?

What is treatment likely to do for you? What makes you believe it will have that

effect? What do you believe will happen if you are

not treated Why do you think your doctor has

recommended this treatment

Appreciate the situation and its consequences

How did you decide to accept or reject the recommended treatment?

What makes the chosen option better than the alternative?

Reason About Treatment Options

The level of capacity required for a specific decision is proportionate to the adverse risk

If there is a high risk of serious injury or death associated with the patient’s choice, a high level of capacity is required

Sliding Scale Capacity

Patient’s Expressed Choice Understanding of: the Problem, the Solution,

Risk, Benefits, Alternatives Appreciating : the Problem, the Solution Reasoning: Discuss Logical Consistency

If Pt Lacks Capacity must also document:◦ The Cause Nature, Extent and Probable Duration

of Incapacity

Physician Must Document:

Try to restore patient’s capacity! Where is the deficit?

◦ Consistent set of goals and values◦ Ability to appreciate the situation and its

consequences? ◦ Ability to understand the relevant information?◦ Unable to communicate a choice? ◦ Unable to reason/deliberate about treatment options?

Can capacity be restored before the team needs to perform medical treatment or test?

Before Assigning a Surrogate Decision Maker

If Patient has Medical Decision Making Capacity ◦ Encourage the patient to complete an advanced

directive

If Patient Lacks Medical Decision Making Capacity ◦ Try to restore capacity

Determine whether pt has DMC

First check to see if the patient has an advanced directive, durable health care power of attorney, living will, or document stating who he prefers to make decisions on his behalf if he loose capacity

If the patient has not made his wishes know, most states have statues (laws) assigning the order of surrogates

My patient lacks DMC, now what?

20 Pa. C.S.A. §§ 5451-5471 (2007) This Act gives patients the right to assign

a surrogate decision maker

Instructs physicians regarding who should make decisions if the patient failed to assign a decision maker

Gives surrogate decision makers legal authority to make health care decisions

Provides model DPoA and Living Will forms

Pennsylvania’s “Health Care Agents and Representatives Act” (Act 169)

The law prefers a person identified by the infirm individual to her physician before she became incompetent ◦ written document may be required by the court if family members dispute

the assignment

If patient did not delegate the duty, the law gives preference to individuals if they are willing and available to make decisions in the following order (majority rules within a class)◦ Spouse (even if separated, not if divorce is pending) andadult children of

the principal if not spouse’s children◦ Adult child◦ Parent◦ Adult sibling◦ Adult grandchild, ◦ Adult who has knowledge of the individual’s preferences and values

to assess how she would make health care decisions 20 Pa.Cons. Stat. Ann. § 5461(d) (2007).

PA Act 169 Health Care Representative Assignment

Unless related by blood, marriage or adoption, a health care representative may not be the patient’s attending physician or other health care provider nor an owner, operator or employee of a health care provider in which the principal receives care.

20 Pa. Cons. Stat. Ann. § 5461(f).

Doctor, you are not my agent

Substituted Judgment: Surrogates must make decisions based first on their knowledge of the patient’s wishes, values, goals, and priorities

Best Interest of the Patient: only if nothing is known about the patient’s preferences are surrogate decision makers to make a decision based on what they think would be best for the patient ◦ Still must weigh benefits and burdens from perspective

of the patient

Role of Surrogate Decision Maker

  An attending physician or health care provider

generally must comply with a health care decision made by a health care agent or health care representative to the same extent as if the decision had been made by the principal, subject to any limitation set forth in the health care power of attorney.

Court approval unnecessary.--A health care decision made by a health care representative for a principal shall be effective without court approval.◦ 20 Pa. C.S.A. §§ 5461(j)

By What Authority?

Pennsylvania law protects my health care agent and health care providers from any legal liability for their good faith actions in following my wishes as expressed in this form or in complying with my health care agent's direction. On behalf of myself, my executors and heirs, I further hold my health care agent and my health care providers harmless and indemnify them against any claim for their good faith actions in recognizing my health care agent's authority or in following my treatment instructions.

LEGAL PROTECTION 20 Pa. Cons. Stat. Ann. § 5471

An assigned representative has the same authority as a health care agent except that an assigned representative may not refuse the treatment required to save the patient’s life unless the patient is in an end-stage medical condition or permanently unconscious.

A health care agent may order the removal of life sustaining treatment if he has the incapacitated person’s written instructions regarding preferences ◦ if the instructions were written when the patient had

capacity 20 Pa. C.S.A. §§ 5456(a) and 5461(c)

Limitations of the Surrogate Decision Maker

Presumption in Favor of Food and Water◦ Surrogate shall presume that the principal would not want nutrition and hydration

withheld or withdrawn unless there is a writing that specifies.

Life-sustaining treatment, nutrition, and hydration must be provided to a pregnant woman who is incompetent and has an end-stage medical condition or who is permanently unconscious unless, to a reasonable degree of medical certainty … life-sustaining treatment, nutrition and hydration: ◦ Will not maintain the pregnant woman in such a way as to permit the continuing

development and live birth of the unborn child;◦  Will be physically harmful to the pregnant woman; or◦  Will cause pain to the pregnant woman that cannot be alleviated by medication.

If the Surrogate is unsure of patient’s preferences: ◦ The preservation of life◦ The relief from suffering◦ The preservation or restoration of functioning

Pennsylvania Specific Limitations

No. Involuntary commitment law is a separate body of law (also based on the rights given to citizens by the 14th Amendment)

Involuntary Commitment Law is VERY specific in what power physicians are given

302 requires ◦ That patient is a danger to self or others◦ Mental Health Diagnosis (found in DSM – not MR, senility,

or addiction alone) ◦ And that the person be taken to a authorized facility for

emergency psychiatric evaluation The medical ward of the hospital DOES NOT meet this criteria

Does a patient lacking DMC require a 302 to force compliance?

Health Care Agents and Representatives Act, 20 Pa. C.S.A. §§ 5451-5471 (2007).

Mental Health and Mental Retardation Act of 1966 (50 P. S. § 7301, 7302, 7304) and 55 Pa. Code §  5100.71 (relating to voluntary examination and treatment).

Omnibus Budget Reconciliation Act Of 1990 (in effect December 1991). Public Law 101-508 sec 4206-4207, 4751-4752. 42 U.S.C. sec 1395, 43 U.S.C. sec 1396a(a). (Federal Patient Self Determination Act (PDSA) ).

References

Varma and Wendler, Medical Decision Making for Patients without Surrogates, Arch Intern Med.; 167(16):1711-1715 (2007).

UPHS ACT 169, Guides for Staffhttp://uphsxnet.uphs.upenn.edu/act169/staff_guides.html

UPHS AMA Discharge, Guides for Staffhttp://uphsxnet.uphs.upenn.edu/act169/AMA_related_policies.html

References Cont’