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A forgetful physician was fretting:

“Maybe Dx is a DAT I am getting.”

Her recall declined, whereupon she opined:

“I forgot what I found so upsetting.”

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LEGAL ASPECTS LEGAL ASPECTS of of GERIATRIC GERIATRIC

PSYCHIATRYPSYCHIATRYHoward H. Fenn, MDHoward H. Fenn, MD

Clinical Associate Professor, Clinician Educator Line Clinical Associate Professor, Clinician Educator Line Stanford UniversityStanford University

Medical Director, Acute Geropsychiatry UnitMedical Director, Acute Geropsychiatry UnitPalo Alto Veterans Affairs Medical CenterPalo Alto Veterans Affairs Medical Center

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TOP 10 REASONS TOP 10 REASONS PHYSICIANS SUED PHYSICIANS SUED

Informed consent not obtained/documentedInformed refusal not obtainedWeak, undocumented patient education Inattention to doctor-patient relationship Overlooked lab results Poor inter-professional communications Medication problems Weak medical records Inadequate history-taking or documentation Inattentive follow-up

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LEGALLEGAL--GERIATRIC GERIATRIC PSYCHIATRY: PSYCHIATRY:

CAPACITYCAPACITY Definitions Philosophy and background Specific competencies: the code Informed consent Assessment Testamentary capacity Advance directives Elder Abuse Undue Influence

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DEFINITIONSDEFINITIONSCapacityCompetenceSpecific competenceSimple consentInformed consentDecisional impairmentInformed refusalTestamentary capacity

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SLATER V. BAKER & SLATER V. BAKER & STAPLETON 95 Eng. Rep STAPLETON 95 Eng. Rep

860 [K.B. 1767]860 [K.B. 1767]Facts: 2 surgeons disunited, without patient’s

consent, a partially healed fractureHolding: “…it was improper to disunite the callous

without consent; this is the usage and law of surgeons; then it was ignorance and unskillfulness in that very particular to do contrary to the rule of the profession, what no surgeon ought to have done…”

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PHILOSOPHICAL PHILOSOPHICAL BACKGROUNDBACKGROUND

Deontological Ethics Immanuel Kant’s Categorical Imperative: “act only on a maxim by which you can will that

it, at the same time, should become a general law.”

Utilitarian Ethics Jeremy Bentham and John Stuart Mill: “act such that the act leads to the greatest good

for the greatest number of people.”7HHFENN, MD

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CATEGORIES of CATEGORIES of CAPACITY CAPACITY

DETERMINATIONDETERMINATIONDe Jure: adjudicated in formal hearing De Facto: court-ordered expert evaluationInformal: for clinical treatment Retrospective: prompted by litigation

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4 “D”s 4 “D”s of of De JURE De JURE INCAPACITYINCAPACITY

o Diagnosis: not sufficient

o Deficit (psychiatric) & lack of functiono Defined by code

o Decision-making ability (specific)

--1995: California (DPCDA) HHFENN, MD

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DUE PROCESS IN DUE PROCESS IN COMPETENCY COMPETENCY

DETERMINATIONS DETERMINATIONS ACT (DPCDA—1995)ACT (DPCDA—1995)

Sections 810-814 California Probate Code

Determination of lack of mental capacity must be supported by evidence of deficit in at least one specific mental function

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DEFICIT +DEFICIT +LACK OF FUNCTIONLACK OF FUNCTION

A determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, including, but not limited to, the incapacity to contract, to make a conveyance, to marry, to make medical decisions, to execute will, or to execute trusts, shall be supported by evidence of a deficit in at least one of the following mental functions…and evidence of a correlation between the deficit…and the decision or acts in question --Sec. 811 Probate Code

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PROBATE CODE PROBATE CODE SECTION 810 (2005)SECTION 810 (2005)

(a) For purposes of this part, there shall exist a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions.

(b) A person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wells or trusts, and performing other actions

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SPECIFIC SPECIFIC COMPETENCIESCOMPETENCIES

Provide food, clothing, shelter sec. 5250 W&I Refuse psychotropic meds sec. 5332 W&I Manage assets sec. 812 PROBATE Informed consent--medical sec. 813 PROBATE Informed consent/conservatee sec. 1890 PROBATEInformed consent-dementia Rx sec. 2356.5 PROBATE Execute a will sec. 6100.5 W&IAdvance Directive sec. 4609 PROBATE Informed consent for ECT sec. 5352 W&I CODEFor research sec. 24178 H&S CODE

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DPCDA MENTAL DPCDA MENTAL FUNCTIONSFUNCTIONS

Attention and concentration Orientation to time, place, person, situation Level of arousal or consciousness Immediate recall, short-term, long-term memory Communication, expressive and receptive Recognition of familiar objects and persons Understanding of quantitites Abstract reasoning Ability to plan, organize, carry out actions in rational self-

interest Ability to reason logically Freedom from disorganized thinking, hallucinations, delusions,

repetitive thoughts, euphoria, anger, anxiety, fear, panic…

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COMPETENCECOMPETENCEis the CAPACITY to:is the CAPACITY to:

Understand information relevant to the issue

Think rationally about alternative courses of action

Appreciate the situation of being confronted with a specific decision

Express a choice among alternatives

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CONSENT to MEDICAL CONSENT to MEDICAL TREATMENT TREATMENT

sec. 812-813 Probate Codesec. 812-813 Probate Code1. Respond knowingly and intelligently to

queries about that medical treatment2. Participate in that treatment decision by

means of a rational thought process3. Understand all of the following terms of

minimum basic medical treatment information with respect to... treatment:

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MEDICAL TREATMENT MEDICAL TREATMENT of CONSERVATEEof CONSERVATEE

(Sec. 1980 Probate Code)(Sec. 1980 Probate Code)(a) An order of the court under Section 1880 may

be included in the order of apointment of the conservator…

(b)…No court order under section 1880…may be granted unless supported by a declaration…by a licensed physician, or a licensed psychologist…that the proposed conservatee..lacks the capacity to give an informed consent for any form of medical treatment and the reasons therefor..”

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INFORMED REFUSAL INFORMED REFUSAL INFORMATIONINFORMATION

“...failure of the physician to disclose to his patient all material information, including the risk to the patient if the test is refused, renders the physician liable for any injury, a proximate (legal) cause of which was the patient’s refusal to take the test, if a reasonably prudent person in the patient’s position would not have refused the test if all material information had been given.”-- (BAJI No. 6.11.5)

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PRESUMPTION PRESUMPTION of of COMPETENCECOMPETENCE

No person may be presumed to be incompetent because he or she has been evaluated or treated for mental disorder or chronic alcoholism, regardless of whether such evaluation or treatment was voluntarily or involuntarily received. Any person who leaves a public or private mental health...

--Sec. 5331 W&I Code

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INFORMED CONSENTINFORMED CONSENTDEFINITIONSDEFINITIONS

Autonomy: Personal freedom of action Kant: ability to make one’s own rules and carry them out in behavior.

Constraints on AutonomyEthical behavior for physicians:

Avoid coercion

Disclose necessary information

Enhance understanding20HHFENN, MD

INFORMED CONSENT: INFORMED CONSENT: REQUIRED ELEMENTSREQUIRED ELEMENTS

A decisionInformation and UnderstandingVoluntariness: autonomy

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ELDER ABUSE: ELDER ABUSE: DEFINITIONSDEFINITIONS

Elder: any adult 65 years or olderDependent adult: those between ages 18-65

with mental/physical limitations which restric ability to carry out activities or protect their rights, not limited to physical/mental or developmental abilities or diminished capacity.

Includes those admitted to 24 hour health facility

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ELDER ABUSEELDER ABUSESecs. 15600-15657.3 Secs. 15600-15657.3

W&I CodeW&I CodeObligations for Health Care provider:

1. Report abuse

2. Do not perform any acts which may be in violation of the provisions

“…There is no issue of exclusion or exemption raised by the record on this appeal (Central Pathology Services Medical Clinic Inc. V. Superior Court (1992) 3 Cal. 4th 181)

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ELDER ABUSEELDER ABUSE

No “blanket exclusion” from the Elder Abuse Act for health care practitioners

--Delaney v. Baker59 Cal.App.4th 1403 (1997)

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ELDER ABUSE: ELDER ABUSE: IDENTIFICATIONIDENTIFICATION

Physical/Sexual abuse—direct or threat to harm Neglect-denial of food, clothing, or shelter, failure to

prevent malnutrition or assist with hygiene Failure to provide for mental/physical needs

including abandonment Failure to protect from health/safety hazards Fiduciary abuse: stealing, misappropriated or

unlawful use of patient’s funds by person in position of trust.

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ADVANCE DIRECTIVE ADVANCE DIRECTIVE INFORMED CONSENT INFORMED CONSENT

TESTAMENTARY TESTAMENTARY CAPACITYCAPACITY

Treatment: in the present and actualAdvanced directive: in the future and hypotheticalTestamentary capacity: one’s bounty, one’s heirs,

and the decision.

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TESTAMENTARY TESTAMENTARY CAPACITYCAPACITY

Estate of Jenks (1971)Estate of Jenks (1971)Requires only that the testator have capacity

to know and understand the nature and extent of his bounty, as distinguished from the requirement that he/she have the actual knowledge thereof…”

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TESTAMENTARY TESTAMENTARY CAPACITY CAPACITY

Knowledge of the extent of propertyKnowledge of “Natural objects of his/her bounty”

Capacity to hold both in mind at the moment of decision

No provision in a will may be the product of an ‘insane delusion’.

Undue Influence can void entire will or affected codicil.

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INCOMPETENT INCOMPETENT toto MAKE A WILL MAKE A WILL ifif

Cannot understand nature of the testamentary act Cannot understand and recollect the nature and

situation of the individual’s property, or Cannot remember and understand the individual’s

relations to living descendants, spouse, and parents, and those whose interests are affected by the will. Probate Code Sec 6100.5)

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CAPACITY for an CAPACITY for an ADVANCE DIRECTIVE ADVANCE DIRECTIVE

Future choice Intervention when no longer capable Some of choices involve medical treatment Choices may include a surrogate Choices could result in death or coma Death and coma result in no choice Change of directive is possible Choices may supersede subsequent choices made

by individualHHFENN, MD

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INFORMED REFUSAL:INFORMED REFUSAL:TRUMAN V. THOMAS TRUMAN V. THOMAS 165 CAL. REPORTER 165 CAL. REPORTER

[1980][1980]Wrongful death suit brought by children

Because Dr. Thomas failed to perform pap smear on mother, who died.

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PREVALENCE PREVALENCE ofof DECISIONAL DECISIONAL IMPAIRMENTIMPAIRMENT

Diagnosis of dementia by itself does not determine incapacity

80-90% of mild-to-moderate Alzheimer’spatients are decisionally impaired

44%, 45%, 67%, 69% of nursing home patients are decisionally impaired

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UNDUE INFLUENCE UNDUE INFLUENCE Individual’s will replaced by that of another Coercion or complusion is not required but often

present in testamentary context

Facts establish a presumption of-Opportunity (access, dependency, control,

confidential relationship)-Motive (benefit to influencer)-Naturalness (relatives favored)-Susceptibility

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UNDUE INFLUENCEUNDUE INFLUENCESEC. 1575 CIVIL CODE SEC. 1575 CIVIL CODE

1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him..

2. In taking an unfair advantage of another’s weakness of mind, or

3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress.

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UNDERSTAND UNDERSTAND TREATMENT TREATMENT

SITUATION SITUATION and and CHOICES (LS5)CHOICES (LS5)

Normal (MMSE >24) 100% competentMild AD (MMSE 20-23) 0% competentModerate AD (MMSE 9-19) 0% competent

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CAPACITYCAPACITY==COMMUNICATECOMMUNICATE

A. The rights duties and responsibilities created by, or affected by the decision

B. The probable consequences for the decision maker and, where appropriate, the persons affected by the decision

C. The significant risks, benefits, and reasonable alternatives involved in the decision. SEC 812 PROBATE CODE

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CAPACITY to REFUSE CAPACITY to REFUSE Riese v. St. Mary's Riese v. St. Mary's

Hospital 243 Cal Rptr 241 Hospital 243 Cal Rptr 241 (Cal App. 1 Dist l987)(Cal App. 1 Dist l987)

Able to participate in treatment decision by means of rational thought processes.

In absence of a clear link between patient's delusional or hallucinatory perceptions and his ultimate decision to consent or refuse treatment, court should assume that patient is utilizing rational modes of thought.

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CONSERVATORSHIPSCONSERVATORSHIPSMental Health / LPSTreatment as goalInvoluntary commitmentBeyond reasonable doubtGrave disability + mental

illnessYearly reviewMental health

professional

Probate Control of Estate Secure perimeterClear and

convincingFinancial

incompetence and/or dementia

2 yearsPetitioner: anyoneHHFENN, MD

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TESTS of CAPACITY TESTS of CAPACITY to GIVE INFORMED to GIVE INFORMED

CONSENT CONSENT Evidencing a treatment choice (LS1)Making a reasonable treatment choice (LS2)Appreciating consequences of choice (LS3)Providing rational reasons for choice (LS4)Understanding treatment situation (LS5)

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DECISIONAL DECISIONAL IMPAIRMENT IMPAIRMENT ASSESSMENT ASSESSMENT

MacArthur Competence Assessment tool (MacCAT) (Grisso et al, 1997)

Hopkins Competency Assessment Test(Janofsky et al, 1992)

Mini-Mental State Exam (Molloy et al 1996)

Kim SYH et al., 2000

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CLINICAL vs. CLINICAL vs. LEGAL CAPACITYLEGAL CAPACITY

CLINICAL STANDARDS Evidencing a treatment

choice Making a reasonable

treatment choice Appreciating

consequences of choice Providing rational reasons

for choice Understanding treatment

situation

PROBATE CODE Sec. 813 1. Respond knowingly and

intelligently to queries about that medical treatment

2. Participate in that treatment decision by means of a rational thought process

3. Understand all…minimum basic medical treatment information with respect to... treatment:

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sharks_ducks1.jpg

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PROCESS PROCESS of of ASSESSMENTASSESSMENT

• Orthopedist examines injured player’s abilities =competence evaluation

• Team orthopedist determines capacity to perform =de facto competence determination

• NHL officials set rules for scoring =Legal code

• Referee decides if goal made =de Jure

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DEMENTIA POWERS DEMENTIA POWERS The conservatee has dementia... …and lacks the capacity to give informed consent

to the placement and has at least one mental function deficit pursuant to subdivision (a) of Section 812, and this deficit significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions pursuant to subdivision (b) of Section 812—

Section 2356.5 of Probate Code

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COGNITIVE DOMAINS COGNITIVE DOMAINS PREDICTIVE of PREDICTIVE of

DECISIONAL DECISIONAL IMPAIRMENT in ADIMPAIRMENT in AD

Auditory comprehension LS 1Word fluency LS3Conceptualization LS5Confrontational naming LS5

--Marson et al. 1996HHFENN, MD

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FORENSIC FORENSIC GEROPSYCHIATRY GEROPSYCHIATRY

SUMMARYSUMMARY Decision-making capacity is central Competency Codes consistent with psychiatric de Jure incompetence:

– Diagnosis not sufficient– Deficit+loss of function– Defined by code– Decision-specific

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TO BOLSTER TO BOLSTER COMPETENCECOMPETENCE

Present information piece-mealTry-out research projectBypass deficit with written memory aidsTarget symptoms with medications (33%-

40% with AD have psychotic symptoms)Rx with Anticholinesterase inhibitorsRx with Memantine when available

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The Three C’s of Geriatric The Three C’s of Geriatric PsychiatryPsychiatry

CompetenceCapacityConsent

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