Mental Capacity, Informed Consent & Health Care Treatment Dallas Bar Association Health Law Section February 15, 2012 Robert Gordon JD, PhD Forensic & Clinical Psychology One Galleria Tower, Dallas DrBob@DrBob.com 972 620 0230

Avoiding and Defending Complaints and Lawsuits

Physicians & Hospitals Hospitals – CMS Committee on Medicare and Medicaid Services

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It's not enough for you to merely sign your name or say "Yes It's not enough for you to merely sign your name or say "Yes." You must give informed consent. You need to be told about and understand many things before treatment begins, including: The name of the doctor performing the procedure and his qualifications Your medical condition The purpose of the proposed procedure The risks involved Any alternative treatments or procedures and the risks involved The chances of the procedure's success The expected recovery time The approximate cost of the procedure and whether it's likely covered by your health insurance You must also have a chance to ask the doctor questions and to talk things over with family if you want.

Consent The Cornerstone of patient rights. AMA, 1972. Patient Bill of Rights. Consent must be: Voluntary Competent Informed

Forms of Consent The Med Mal Witness Verbally In writing One’s actions By inference in emergency situations To prevent death or serious injury

What is Informed Consent? Describes the recommended treatment or procedure Explains the risks and benefits Refers to alternate treatments, risks and benefits Says the likely result if no treatment given Forecasts the probability of success and definition of it Explains the length and challenges of recuperation Discusses other relevant information

Other Important Factors The law presumes a person is competent to consent to health care. The challenge comes: when the patient or family disagrees with treatment or When the patient refuses treatment

Other Disclosures? Physician Owned Hospitals HealthGrades.com Law Suits and Complaints Drug Company Perks Drug Substitutes: Botox Cases- GR Allergan Inc. Qui Tam Cases

Doctor As Witness Conrad Murray MD. No Informed Consent.

Texas Administrative Code Title 25 Section 6.01 Texas Medical Disclosure Panel Decides the degree of disclosure required and the form of the disclosure 3 attorneys 6 physicians Following its procedures creates a “rebuttable presumption” that everything was done properly.

List A: Full Disclosure Anesthesia: General, Spinal, Conscious Sedation Surgery: Coronary bypass, valve replacement Non Surgery: Angioplasty, stents, pacemakers. Diagnostic Procedures: Cardiac catheterization, contrast nephropathy

List B: Not Full Disclosure Anesthesia Cardiovascular Digestive Ear Eye Integementary system Male genital system Maternity and intrauterine Nervous system Radiology Respiratory Urinary system Psychiatric Radiation therapy Endoscopic surgery Pain Management procedures

Age Minority: Inference Chapter 129. Texas Civil Remedies Code Younger than 18. Minority continued after 18.

Assessment of Older Adults ABA/ APA Handbook. 2008. 1. Cognitive Assessment 2. Functional Assessment 3. Psychiatric & Emotional Assessment

Diminished Capacity Age- Related Cognitive Decline Delirium, Dementia, Amnestic and other Cognitive Disorders Mental retardation, schizophrenia and major depressive disorder Medical power of attorney

Invalid Consent Patient doesn’t understand meaning of information Patient has been misled Patient has diminished capacity due to cognitive or emotional problems Patient can’t physically give consent This does not automatically mean there is incompetency to consent. An incompetent person may still refuse treatment- e.g. meds. Incompetency and capacity can be different.

Consent Issues Is there a legal guardian? Informally, does the patient’s family agree? Are there other legal, moral and ethical issues for competency and guardianship? Organ transplant issues- relationship between the donor and patient Emancipated minors and exceptions Child’s life in danger. Parent refuses consent.

Malpractice Law Suits Personal Injury Lawyers Advertising for Clients Doctor Patient Relationships Lawsuit Clearing House Interviews The Med Mal Insurance Question Caps on Punitive and Intangibles Fine Print Allegation

Defenses & Standards Defenses Standard of Care Known risk Unforseeability Mistakes vs. Negligence Patient refuses to participate in explanation Standard of Care Community standard Professional standard Reasonably prudent patient

Doctor As Witness Deposition and Trial / Informed Consent The Image of Health Care Professionals Whose The Audience? The Jury Trial Who Has the Right to Settle? One’s Good Name The Fear Factor

Material Risks and Success One that might cause a reasonable patient not to proceed What’s the magnitude of the risk? Problem areas: Plastic surgery and vasectomies

Assessment of Older Adults ABA/ APA Handbook. 2008. Functional Assessment Cognitive Assessment Psychiatric & Emotional Assessment

Common Cognitive Domains Appearance Sensory Acuity Motor Activity Attention Memory Communication Understanding Arithmetic Reasoning Visual- Spatial

Cognitive Tests Mental Status: Full and Mini Neuropsych Exam Interviews: ACCT Assessment of Capacity for Treatment CAT Capacity Assessment Tool CCTI Capacity To Consent to Treatment

Brain Map

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3Cs - Rapport Competence Confidence Caring

Mental Capacity, Informed Consent & Health Care Treatment Dallas Bar Association Health Law Section February 15, 2012 Robert Gordon JD, PhD Forensic & Clinical Psychology One Galleria Tower, Dallas DrBob@DrBob.com 972 620 0230