Capacity: Clinical Decisions and Dilemmas Background Typical Situations –Psychiatric Hospitals / Units. –General Hospitals. –Community. –Assets.

Definition of Capacity Persons decision making ability. –none in Ireland currently. –presumed unless contrary established. –unwise decision not a bar. Proposed Definition. Mental Capacity Bill The ability to understand the nature and consequences of a decision in the context of available choices at the time the decision is to be made. A person lacks capacity if unable to: –understand information relevant to the decision. –retain the information. –use or weight the information in the decision making process. –communicate his/her decision.

Ireland – Functional Approach Presume capacity. –evidence of contrary to displace this presumption. –focusing on specific function / decision required. –people entitled to make unwise / foolish decisions. Poses a dilemma for doctors asked to assess capacity i.e. functional aspect. –bridge the medical/legal interface by linking lack of capacity for a particular function / decision to a medical diagnosis. –whilst accepting medical diagnoses such as LD or dementia do not necessarily mean lack of capacity. –contrary to status test of capacity e.g. wardship.

Other Jurisdictions Functional Approach. –US moving in this direction. –Canada (Saskatchewan). Disability / Disorder approach. –Scotland. –Australia / (Victoria). Both UK –2 stages: (i)impairment of / or disturbance in persons mind or brain. (ii)sufficient that causes person to lack capacity for that particular decision.

Capacity and Irish Legislation Lunacy Regulations (Ireland) Act –Person can only be made a WOC if deemed a lunatic, idiot or person of unsound mind. –Status test of capacity: lose control over all aspects of life. Powers of Attorney Act In setting up an Enduring Power of Attorney, a person with capacity appoints people to make decisions re. financial and welfare treatment should they lose capacity. Medical treatment not covered hence –best interest / doctrine of necessity apply. –based on common law.

Other Relevant Irish Legislation: Non-Fatal Offences Against the Person Act –16+ –Medical /surgical /dental treatment. –Psychiatric treatment not addressed. Mental Health Act 01. –Under 18 parental consent to admission and treatment. –18+ procedures for detention and review. –Lack of capacity not a reason for detention Child Care Act –Child = person under 18. –Emergency care order. Immediate and Serious risk to health or welfare…. placed in care of HSE. –Capacity not addressed. Criminal Law (Insanity) Act –rules for fitness to be tried. –no definition of capacity.

Clinical Decision and Dilemmas Interface between medicine and law. Only psychiatrists can assess capacity – not so. Training for all doctors.

Psychiatric Hospitals/Units: Mental Health Act 2001 Dementia and MHA 01 –Lack of capacity a feature. –Dementia not a reason for detention. –2 cases outlining implications of incapacity on: (i) Patients attending Tribunals (ii) Status in longstay approved centre

(i) Attendance at Tribunals Normally not an issue. LR insistent. Preliminary matter. –Diagnosis. –Lack of capacity. –Misinterpretation of evidence/circumstance. –Distress. –Deterioration. Insisted on attendance. –Evidence. –Subsequent distress.

Subsequent Events Later that day. –Misinterpertration. –Very agitated. –Broke window. –Physically restrained. –IM Meds. Letter to MHC. –Outlining events. –Usually not a problem. –Bring to notice of Tribunal Members. –General guidance to LRs and Tribunal Members re dementia and attendance at Tribunals.

(ii) Status in longstay approved centre Detained for severe dementia not lack of capacity. Move to longstay approved centre. –Passage of time. –No longer severe dementia. –Not detained (order elapses or is revoked). –No status. MHC informed. –Legislation silent. High Court Case Feb 08 –Detained in contravention of Article V of ECHR. –Overturned by Judge. –No costs to LR et al.

General Hospitals (i)Person with dementia refusing treatment. Diagnosis of dementia: geriatrician / psychiatrist / neurologist to confirm or rebut diagnosis of dementia (if necessary) Decision making ability re. treatment. –treatment discussed with patient by senior member of treating team. –understand info, retain it, use and weight, communicate decision. –then clinical decision made re. whether to proceed with treatment. Capacity present - patient decides. Capacity absent - common law. - doctrine of necessity. - consult with relatives. N.B. Same process for delerium.

(ii)Can a person with dementia make a decision to go home? Psychiatrist / geriatrician confirm or rebut diagnosis (if necessary) Dementia not sufficient reason to prevent discharge – even if lack capacity. Collateral evidence. –Social Report. –Family, GP, PHN etc. –OT assessment. in hospital. At home. –Available home support services. Only with all of above should decision be made by treating team.

Person at home (i)Self-neglect in an elderly person. If not dementing. Persons wishes paramount. If dementing –Assess degree of risk from self neglect. –Based on collateral informaiton. –Social Report –Even if at risk options limited. a)Passively acquiescing +/- assets. Arrange placement – A Fair Deal. b) Refusing to leave home. Assets – use wardship. No assets – no legal mechanism.

(ii) Elder abuse. ? Need to move to place of safety. Role of psychiatrist / geriatrician is to confirm or rebut diagnosis of dementia. Not dementing - persons wishes paramount. If dementing require other evidence. –Social work report. –OT assessment. –Police involvement (if any). –On basis of all above Manager of Services for Elderly at primary care level +/ – legal advice makes decision. –Options include: removal to place of safety. barring of abuser. charging of abuser.

A Fair Deal 2009 (Nursing Home Legisation) Removes entitlement to free longstay care in public and private institutions (non psychiatric). now means teated. person contributing 80% of income. may raise a mortgage on their primary residence (if any) to maximum 15% value. interest free loan. financial arrangements based on presumption of capacity. If person lacks capacity and mortgage to be arranged, Care Representive appointed throught Circuit Court. Likely Problems: –Presumption of capacity unjustified. Vulnerable subgroup of elderly people: 5 % going into longstay care of whom 50 – 60% dementing. –Care Representative appointment initiated by next of kin through the Court Service. –No satisfactory mechanism in place to identify those lacking capacity. –No mechanism for obtaining medical reports. –Successful challenges likely hence loans not recouped after elderly persons death.

Capacity and Assets Anything involving money a minefield. –Income /business. –Saving / Shares etc. –Property In a person lacking capacity Doctor providing report should do so only on written request of solicitor thereby –authorising doctor to provide such a report. –protecting doctor against allegations of breaches of confidentiality. –directing doctor re. specific function/s to be assessed. Examples –Testamentary capacity. –EPA. –Wardship. –A Fair Deal.

Guidelines on Report: –should follow the Clapham Omnibus rule i.e. man on street reading report would come to same conclusions as doctor. –not sufficent to give an MMSE score. –ask and record replies to specific questions related to function being examined. –link lack of capacity to a diagnosis. –latter may include disorders causing communication problems e.g. strokes. –conclude with an opinion. –envisage being in court.

Training in Capacity Assessments –Should be available for all doctors. –Based on principles outlined. –Commonsense. –Good notekeeping. –Money – go through legal channel. Could you defend your opinion in court?