1. Myths about Decisional Capacity
Cynthia M.A. Geppert, M.D., Ph.D.,M.P.H.
Chief Consultation-Liaison and Ethics New Mexico Veterans Affairs Health Care System

2. Competence is Capacity
Competence is a legal term. Decisional capacity is a clinical designation.
Only a judge or other officer of the court can declared someone incompetent.
Generally the determination of competence is made on the basis of a clinician’s assessment of a patient’s decisional capacity.

3. Surrogate Myths
If a patient lacks decisional capacity, a court order appointing a surrogate must be obtained before the patient can be treated.
Only a spouse for an adult or the parent of a child can serve as a surrogate decision maker.
Surrogates accurately predict the preferences of patients.

4. Only a psychiatrist can determine decisional capacity
Any physician can make an assessment of a patient’s decisional capacity.
The primary physician is the first choice for making the assessment.
Psychiatrists and psychologists have no special legal standing to determine “competence.”
Mental health professionals should be consulted on the assessment of capacity only when there is evidence of a mental disorder.

5. A person who is psychotic or demented cannot be capable
Numerous studies demonstrate that psychiatric illness impacts aspects of decisional capacity.
Severely disorganized and demented patients will generally lack meaningful decisional capacity.
Moderately demented and actively psychotic patients are not a priori decisionally incapable.
Research shows that psychiatric patients can exercise decisional capacity and that their ability can be enhanced.

6. Decisional Capacity is an all or none phenomena
Decisional capacity is a spectrum of ability.
A patient may be unable to make financial decisions and be able to make medical ones.
Decisional capacity may fluctuate with the course of illness, treatment, nature of the decision and available social support.
Thus assessments of decisional capacity also need to be ongoing processes.

7. The components of decisional capacity
The ability to communicate.
A patient is able through verbal or non-verbal means to express his wishes.
Very sensitive to education, culture and language.
A patient with locked-in syndrome blinks his eyes in response to questions regarding continuation of life support.

8. The capacity to comprehend
The ability to understand the information presented such as the nature, risks,benefits, alternatives to and outcome of of a proposed intervention.
An anxious patient being consented for cardiac surgery is able to repeat the information the clinician explains in his own words.

9. The capacity to reason
The ability to rationally manipulate the facts given and arrive at a logical conclusion. The “Spock criterion.”
A schizophrenic patient with delusions of persecution is able to tell an investigator that he would rather receive a medication that is effective 85% of the time than one that works 15% of the time.

10. The capacity to Appreciate
The ability to make authentic choices which reflect one’s life history, culture, religion, values and prior significant decisions.
A 55 year-old woman who has been a devout Christian Scientist her entire life, refuses to see a doctor when she becomes jaundiced, vomits and has abdominal pain.

11. Domains of Voluntarism
Developmental Factors:
Progressive emotional and intellectual maturity of young people to make medical decisions.
Illness-related considerations:
Ambivalence & pessimism of depression,compulsive use & impulsive behaviors in SUD.
Psychological Issues & cultural and religious values: Family autonomy in Hispanic,Native American, Asian cultures
External Features & Pressures:
Relationship with caregiver; economic burdens end of life care.

12. Voluntarism: the forgotten capacity
The ability to make free and authentic choices without internal or external coercion which prevents or impedes the exercise of self-determination.
A veteran with post-traumatic stress disorder refuses a request from his primary care physician to participate in a research study.

13. What to do when the patient lacks decisional capacity
Does the patient have an advance directive such as a Living Will or Durable Power of Attorney for Health Care?
Did the patient appoint a proxy or surrogate decision maker?
If no AD or surrogate then the following order is utilized: spouse, adult child, parent, adult sibling, grandparent, friend

14. Inaccuracy of Surrogates
50 VA pts and their surrogates given questionnaires describing common scenarios for life support.
Surrogates guessed pts answers.
59.3% of time surrogates accurately guessed pts wishes Not better than chance.
Only accurate predictor of decision making was prior discussion of wishes.
Suhl. Arch Intern Med. (1994)

15. Surrogates
Substituted judgment standard is now the preferred method of surrogate decision making.
If there is no knowledge of patient preferences or values, then best-interests standard is used. “What a reasonable person would want done in the situation.”

16. Informed Consent
A legal and ethical doctrine that states individuals understand proposed research or clinical intervention and freely choose to participate.
Rooted in the philosophical doctrine of respect for persons and autonomy.
For true informed consent, decisional capacity is necessary or a surrogate decision maker.
The following information should be explained to the pt in a comprehensible manner.

17. Elements of Informed Consent
The diagnosis and prognosis with and without treatment.
The nature of the proposed intervention.
The risks and benefits of the proposed intervention.
The alternatives and outcomes including NO treatment.

18. What Informed Consent Is and Is Not
Not the mere signing of a form.
Not a one time procedure
Not a primarily legal matter
An ongoing process
A dialogue involving both verbal and written information.
A clinical decision that is an integral expression of the physician-patient relationship.

19. Medical Conditions that can Influence Informed Consent
Pain
Fatigue
Medications
Intensive care environment
A 64 yo male with colon cancer is approached about participation in clinical research trial. He is heavily sedated with morphine and is status/post colectomy.

20. Neuropsychiatric Conditions that can Influence Informed Consent
Delirium
Dementia
Cognitive disorders
Developmental Disabilities
A 65 yo man with a brain abscess goes back and forth about consenting to neurosurgery. At points he is lucid and cooperative and others combative and distracted.

21. Psychiatric Conditions that can Influence Informed Consent
Substance Abuse
OCD
GAD
Panic
PTSD
A career Army sergeant is approached by the Chief of Cardiology and told he needs a cardiac catheterization. The patient says, “Yes Sir, whatever you say sir.

22. Psychiatric Conditions cont.
Depression
Schizophrenia
Manic Depression
Somatoform Disorders
Factitious Disorders
Personality Disorders
While manic, a 32 year old woman crashes her car and sustains facial trauma. Two weeks after the accident she is depressed and refuses reconstructive surgery, saying she must be punished for her sins.

23. Psychosocial Situations that can Influence Informed Consent
Bereavement
Abuse
Poverty
Criminal charges
Pregnancy
Minor children
6 months after a 78 yo woman looses her husband of 54 years, she finds a lump in her breast. She keeps putting off making an appointment because she is overwhelmed with trying to cope without him.

24. Cultural Situations that can Influence Informed Consent
Religious preferences
Language barriers
Cultural attitudes
Education
A 45 yo father of 5 ruptures his spleen in a fall at home. He is a Jehovah’s Witness and refuses transfusion because of his beliefs, but will accept bloodless surgery.

25. Problems that Mimic Informed Consent Issues
Patient-staff conflict
Communication problems
Family conflicts and pressures
Transference and Counter-transference
Nursing staff overhears a patient’s wife and older son telling him “it is time to let go and to think about how you are burdening the family.” The pt then requests removal of life-support.

26. Informed Refusal The sliding scale standard of competence:
As risk of an intervention increases and/or benefits decrease, then the standard of decisional capacity is raised correspondingly.
A lower-risk procedure thus requires a less demanding standard of decisional capacity.

27. Sliding Scale of Informed Refusal
HIGH-RISK
A 22-year old man with Schizophrenia refuses an emergency appendectomy because he thinks his abdominal pain is the result of eating too much peanut butter.
LOW-RISK
A 34 year old woman with borderline personality disorder complaining of insomnia, refuses a prescription for Trazadone because she is angry at the doctor.

28. How to Facilitate Informed Consent.
The Bad News
Studies have documented problems with every aspect of the informed consent process in healthy and medically ill patients.
These problems are only compounded with psychiatric patients.

29. How to Facilitate Informed Consent
The Good News
Studies also show that the process of informed consent can be improved in healthy, medically ill AND psychiatric patients. Through:
Education
Use of audio-visual materials
Providing ongoing opportunities for pts to discuss consent.

30. Confidentiality
Sensitive information revealed within the MD-Pt relationship is not disclosed without the pt’s consent or legal exceptions.
Rooted in the ethical doctrine of autonomy, fiduciary nature of MD-Pt relationship and the legal right to privacy.

31. Exceptions to Confidentiality
STDs
Child abuse
Elder (non-competent) abuse
Sexual partners of HIV+ who refuse to notify in some states.
Suicidality
Homicidality: Tarasoff I & II. California 1980s. Duty to warn and duty to protect identifiable victim.
Call victim, authorities, hospitalize, medicate.

32. Consultation Hints Find out the core of the consultation request
Talk to the Nurses and staff to get their view.
See if there are social work issues that are contributing.
Explore the family dynamics and meet with the family of significant others if this would be helpful.

33. Consultation Hints Check the patient’s MSE carefully.
Check to see if pain control is adequate and if sedation is excessive.
Call a Chaplain and not just if the issue is religious.
Finally and most overlooked. Talk to the patient.