Consent and Capacity Back to Basics

Friday April 16th, 2010

Dr. T. LauDirector, Undergraduate Education

Faculty of Medicine,

Department of Psychiatry

UNIVERSITY OF OTTAWA

Geriatrics, ROMHC

• “No man is good enough to govern another man without that other's consent.”

Abraham Lincoln (1809 - 1865)

“Most human beings have an almost infinite capacity for taking things for granted.”

Aldous Huxley (1894 - 1963)

“Lawyers are the only persons in whom ignorance of the law is not punished.”

Jeremy Bentham

Relevant Questions

• When and how do we assess capacity?• How do we obtain valid consent?• Who’s responsibility is it?• Who can we go to if we have a question about

this?– REVISED STATUTES OF ONTARIO– http://www.ccboard.on.ca/– http://www.health.gov.on.ca/english/public/forms/

Elements of Consent

1. Informed– Specific to treatment. Awareness of nature of proposed

treatment, expected benefits, material risks and potential adverse side effects, alternative courses of action, reasonably forseeable consequences of having or not having a treatment

2. Capable– Understand and appreciate

3. Voluntary Consent– Freedom from coercion

Overview

• Case Presentation

• Relevant legislation

• Case Discussion

Legislation…

Case 1.

• Mr D. is a 58 y.o. M living w his wife. No prior PHx. Admitted to Gen Surg b/o peritonitis. He refuses any treatment. Although family reports a controlling and at times, angry personality, they feel he is ill. They refuse to take him home. He is admitted against his will.

• He refuses treatment (Abx/Surg) and starts hunger strike. He threatens to kill himself or starve himself unless his wife takes him home. “I might as well kill myself !”

• PSYCH CONSULT: “What should we do?”

• O/E– angry, dismissive,

swearing, grumpy man. Not visibly depressed. Refusing interview/assessment. No clear psychotic sx. Vague paranoia, unclear if patient is delirious initially b/o lack of cooperation.

• Cannot assess capability

• Wants to leave or go on a hunger strike.

• What do you do?

Unable to assess initially…

• Course in hospital– after multiple

interviews, no clear depression found. He is sleeping well but refusing to eat.

– Understands and appreciates consequences of refusing treatment.

• Eventually discharged w/o tx.

• DISCUSSION:– HCCA- capable to consent

– People can make bad decisions if capable.

– Finances/property assessment (s 78 right to refuse assessment/s. 27)

Relevant Legislation in Ontario

• RSOs – Mental Health Act– Health Care Consent Act– Substitute Decision Act– Common Law Act– Highway Traffic Act

• CCC– Fitness– Section 16: NCR

• Civil Capacity

MHA...

MHA

• Deals with– which hospitals in Ontario are Psych facilities

– how and when someone may be brought there

– how they may be admitted

– how they may be kept

– who may see the records

– financial incapacity under the Act in a Psych facility

– rights to patient information

– CTO’s

HCCA...

HCCA• Deals with

– the rule that there must generally be informed, capable consent before tx or admission to a care facility

– what to do in emergency situations where legally valid consent is N/A

– how to determine capability for medical tx, admission to a NSG home or home for the aged, and personal assistance services once there

– how to identify a SDM for an incapable person– how a SDM should make decisions – options available if a SDM makes decisions in an improper fashion

3 parts...

Health Care Consent Act• 3 Parts

– Treatment: A health care practitioner is to administer a treatment only with valid consent

– Admission to care facility: • under Charitable Institutions Act, Homes of the Aged Act

& Rest Homes Act, Nursing Homes Act• in a S-1 facility need MHA

– Personal Assistance Services: • hygiene, washing, dressing, grooming, eating, drinking,

elimination, ambulation, positioning...

Consent...

1. Consent for each indiv. tx

2. Entire course of tx

3. Plan of tx that deals with one or more health problems or likely foreseeable problems given current condition. May allow for withholding or withdrawing tx.

HCCA: Tx and consent

• With the exception of certain emergency situations no tx w/o valid consent (10.1) (informed, capable, voluntary)

• The law allows the health practitioner proposing the tx to proceed in 3 ways….

consent...

HCCA: Tx

• Elements of consent (11.1(1))– related to tx

– informed

• Informed (11.3)– nature

– expected benefits

– material risks and ASEs

– alternative courses of action

– likely consequences of not having tx

– given voluntarily– w/o misrepresentation/fraud

• Expressed or implied (11.4)• written or vocal

• Included consent (12)• allows for variations/change in setting presuming nature/risks/benefits are not significantly different

Tx...

Defining treatment:• “Anything that is done for a therapeutic, preventive, palliative,

diagnostic, cosmetic, or other health-related purpose. It includes a course of treatment or a plan of treatment.” 2.1 HCCA.

– Treatment Excludes• Assessing capacity• Assessment/Examination to know the nature of the condition• Taking Hx• Communicating a Dx• Admission to hospital or other facility• Provision of basic care (washing, dressing, hygiene, etc.)

• A treatment that in the circumstances poses little or no risk of harm• anything prescribed by the regulations not constituting treatment

Capacity...

Defining capacity...• A person is capable wrt tx, admission to a care

facility, or a personal assistance service, if the person is able to:– UNDERSTAND the information that is relevant to

making a decision • (cognitive ability)

– APPRECIATE the reasonably foreseeable consequences of an action or inaction

• applying the information in his/her own situation, assimilate and reach a decision: examples weighing the advantages and disadvantages

Capacity depends on...

• Treatment: may be capable for some and not others

• Time: capacity can change (for example with delirium), particularly with treatment and status may need review.

Who can assess capacity?

• For treatment– any health care professional

• Placement and personal care– Evaluator: usually hospitals have discharge planners

[DP’s] or case managers [CM’s] CCAC• OT/PT/SW

• Nurse

• MD

• Audiologists and speech pathologists

• psychologist

SDMs...

Practical questions for consent to treatment

• Does the person understand the condition for which the specific tx is being proposed?

• Is the person able to explain the nature of the tx and understand the relevant info?

• Is the person aware of the possible outcomes of tx, alternatives or lack of treatment?

• Are the person’s expectations realistic?• Is the person able to make a decision and communicate a

choice?• Is the person able to manipulate the information

rationally?

What to do if a person decides they want to leave the hospital?

• Is the person capable to consent to admission? If they are capable they can make this decision.

• Try to reason with, communicate and support the patient. Consider calling the family.

• If they are not capable and if they wish to contest their ongoing admission, and they are incapable of deciding if they should be in the hospital, in Ontario, assist them in making an application to the CCB.

Restraints: CLA or MHA (15.5)

• Under emergency conditions to prevent serious bodily harm to the person or others.

• Only the minimum amount reasonable

• Consent not required but documentation is.

– Physical• that the patient was restrained, description of means, description

of behaviour that required it or continues to require it

– Chemical• as above but also the agent,• method and dosage.

Case 2.• Mrs. K is a 69 y.o. F, never married, with no

children.

• She is a retired civil servant who presents with a four year history of increasing paranoia whose delusions have become elaborate and systematized to include her extended family.

• She believes that the RCMP and 5 other police forces are constantly monitoring her, following her, and preventing her from obtaining housing.

Case 2.• She sold her house 1 year ago because of beliefs that

these police forces had infiltrated the neighborhood. • When she moved all her furniture was discarded

when she believed that the moving company had replaced all her possessions with identical imposters.

• She moved to an apartment which she never left because of paranoia. She allowed her lease to expire and could not find housing.

Case 2.

• Her nephew arranged for her to go to a hotel after she spent a few nights on a park bench. She stayed for several months PTA.

• She rarely left and did not allow cleaning staff in.• She managed her finances adequately.• She was admitted in the fall of last year b/o cellulitis.

She refused psychiatric tx.

Case 2.• She was admitted a second time for cellulitis

after the hotel owner called 911 and evicted her.

• She accepted ABx but refused other medication

• She wanted to leave the medical floor.

• PSYCHIATRIC CONSULT: “What should we do?”

Case 2.• O/E

– cellulitis resolving

– paranoid, dismissive, angry. Not depressed. Not suicidal/homicidal. Delusions persist. Insight poor, judgment limited:

– Demanding RCMP to provide housing and lost property. Believes RCMP doctors injected her legs and made them infected.

– Cognition, STM intact. Cognitively capable of understanding information.

understands but cannot appreciate...

Case 2.• WHAT WOULD YOU DO?• Course in hospital

– transferred to psychiatric ward on a form 3 (3rd criteria)

– assessed for capacity, felt to be incapable in three areas– although she could understand (cognitively capable)

she could not appreciate foreseeable consequences b/o delusions.

– under MHA also informed of incapacity– detained under MHA and treated with HCCA

understands but cannot appreciate...

Case 2. Discussion

• Cannot appreciate; therefore incapable to consent to tx.

• She appealed her decision but eventually agreed when informed she would be placed in a NSG home and eventually treated anyways.

• MHA allows detainment• HCCA allowed tx after SDM

agrees• On a medical floor she was

detained under the HCCA but once transferred to psychiatry she had to be detained under the MHA. Her rights advice and appeal process were through the CCB/MHA/HCA

Case 3.• Mr. D is an 72 y.o. german M previously living in own

apartment. No children or family. No prior psychiatric history.

• Admitted b/o inability to remain at home associated with cognitive decline to a medical floor. Hx of resistance to care and wandering in hospital.

• Hx of repeat elopements (watches the elevators constantly), the last one where a friend helped took him off the unit and possibly tried to obtain money from his bank account.

Case 3.• He was returned to another ward only after a

form 1 was filed by the attending physician in order to facilitate return.

• CONSULT: “What can we use to keep him in hospital? What can we use if he leaves?”

• O/E clear cognitive impairment, aphasia, memory impairment, confusion, functional disability.

Discussion: cannot understand...

• CCB determines that MHA is not appropriate as he is not a “psychiatric patient” – would be an inappropriate use of the legislation.

• Advice given – RE: HCCA/SDM: admission to a care facility. Common

Law Act for physical/chemical restraints.– Practical problem remains that if pt leaves how do you get

the police to bring him back?

• What about his property/finances, potential for abuse by the “friend”? PGT is the guardian.– (section 27 SDA).

Case 4• 48 y.o. M Italian speaking, living w wife, no PPHx. Chronic

marital dysfxn. Hx of obnoxious, angry personality w abuse. • Admitted to hospital 3 mos ago b/o gangrenous toe tx’ed w

amputation. D/C’ed to a convalescence home but evicted b/o aggressive behaviour.

• Admitted 2/52 ago w confusion, sepsis now needs a BKA. B/O delirium marked fluctuation in cognitive capacity. Refusing tx now. When neuropsych saw him it was during a point of lucidity, and b/o a language barrier a full cognitive assessment was not done, only a MMSE. Felt to capable based on clinical interview.

Case 4: discussion• Delirium appears to be present. Fluctuation in

ability to understand or appreciate consequences of decisions leads to fluctuating capacity.

• A treatment plan needs to be worked out during a period of capability so that prior wishes can be established when condition deteriorates again.

• A treatment plan was devised during a period of lucidity.

• What if he changes his mind when he is confused?

“No law or ordinance is mightier than understanding.”

Plato (427 AD - 347 AD), Laws