Assessment of Decision Making Capacity

Competency and Capacity Capacity/Competency Legal, clinical, ethical and social construct Ability of an individual to make autonomous choices Task specific May vary over time Not diagnosis dependent Culturally mediated

When are we asked to assess capacity? Judged to be making unwise decisions At risk of harm Vulnerable to undue influence/exploitation Impaired ability to communicate Disorder of brain or mind which it is suspected will impair decision making abilities (not just dementia: depression psychosis mania intellectual disability)

Definitions of Capacity Appelbaum and Grisso 1)ability to express choice 2)ability to understand relevant information 3)ability to appreciate the significance of information for one’s own situation 4)ability to reason with relevant information so as to engage in a logical process of weighing options Appelbaum TS, Grisso P. N Engl J Med 1988: 319; 1635-38

The 5 Cs of Decision Making Capacity know the context of the decision at hand know the choices available appreciate the consequences of specific choices is consistent in their decisions can communicate their decisions

Autonomy A person is assumed competent until proven otherwise The autonomy of a competent person must be respected Presumption of competence in respecting autonomy.

Thresholds Thresholds for competency should vary based on the nature of the decision and the likelihood and magnitude of the consequences Consequences of missing incapacity in a patient making a risky decision may be particularly severe Patient’s decision Risk / benefit ratio of treatment Favourable Unfavourable Consent Low test of competence High test of competence Refusal

Sliding Scale of Capacity Assessment (Shulman 2007)

NZ Protection of Personal and Property Rights (PPPR) Act 1988 Helps people who have lost the capacity to make or understand decisions about their own personal affairs or property, or who can no longer tell other people what they’ve decided. Enduring Powers of Attorney Property Managers Welfare Guardians Personal Orders

Preservation of Autonomy Section 8 (a) To make the least restrictive intervention possible in the life of the person in respect of whom the application is made, having regard to the degree of that person's incapacity: (b) To enable or encourage that person to exercise and develop such capacity as he or she has to the greatest extent possible.

PPPR Act Duties and responsibilities of welfare guardians / property managers /attorneys To act in the subject persons best interests Allow subject person to exercise capacity to the greatest extent capable To act in good faith and with due care Liability Reporting requirements Integrate into the community as much as possible Consult with the person

Types of order Section 10 (1) personal orders of specific types (including) enter,attend or leave an institution (other than a psychiatric hospital be provided with living arrangements specified be provided with medical advice or treatment educational, rehabilitative or therapeutic or other services

Types of order cont that a person shall not leave the country administer property – less than $5000

Welfare Guardianship Section 12 (2) A Court shall not make an order under subsection (1) of this section unless it is satisfied— (a) That the person in respect of whom the application is made wholly lacks the capacity to make or to communicate decisions relating to any particular aspect or particular aspects of the personal care and welfare of that person; and (b) That the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made relating to that particular aspect or those particular aspects of the personal care and welfare of that person. Only one person can be appointed

Powers of Attorney Legal instrument appointing person to make decisions on the donor’s behalf Must be made on prescribed form Formal witnessing procedure including requirement to assess donor’s capacity to appoint attorney. Must be signed by the attorney May specifiy when activated ( property) Specifies type of person to evaluate mental capacity

Powers of Attorney For welfare can be only one person but may specify who can take over For property can be more that one person Requirements to act in the person’s best interests Requirements to encourage donor to develop and exercise capacity

Powers of Attorney For welfare requires health practitioner report of incapacity for acting on “significant matters” Reasonable grounds for believing incapable on “other matters” For property, can become active before a person loses capacity or when they are only partially incapable

Specific Decisions:Appointing an EPOA A legal document which appoints someone to make decisions for them 2 kinds of EPOA/ separate documents How many attorneys? What kinds of decisions are covered? When it is activated ( when is it likely to be activated); when it can be revoked? Who is the proposed attorney and reasons for choosing that person vs others?

Specific Decisions: Testamentary Capacity Banks and Goodfellow Criteria: Nature of a will Nature and extent of assets Natural beneficiaries Impact of distribution of assets Confirmation that the testator is free from delusions influencing distribution of assets Ability to express wishes clearly and consistently in an orderly plan of disposition

Assessments Be clear of your mandate to assess reasonable grounds for believing that an assessment is required / sought, application being made More stringent and ideal is letter of instruction from solicitor or court Why has the issue of competence arisen at this time? Who is instructing you to prepare the report? The subject person’s solicitor The applicant

Assessments Be clear what aspect(s) of competency you are assessing What is the decision that the person needs to make? Eg appointing an EPA, medical treatment , living circumstances, finances, testamentary capacity Gather necessary background information from available sources including family /experts Includes details of medical procedure/ property/evidence of impaired self care or decision making/ inconsistency This will also require consideration of confidentiality

Assessments Consent including intention to submit report to the court, and potential consequences Inform of intent to gather additional information Usual clinical history and examination PLUS specific assessment re competency To make autonomous decisions the person needs: Sufficient information to make the decision The ability to make the decision free of coercion Mental capacity to make the decision

A Staged approach to testing understanding: Ask what the person knows about the situation /decision/ consequences without giving any information Provide information required in uninterrupted form and ask respondent to paraphrase Element disclosure and asking the person to paraphrase

A Staged approach to testing understanding: If failure of spontaneous understanding is this due to a lack of information inability to retain and use information Has implications for ongoing unsupported decision making capacity Is this a one-off decision, or one that needs to be made repeatedly, without decision support.

Testing Appreciation and Reasoning Does the person see the relevance of the information for themselves Does their understanding of risks and benefits of each option concur with the assessment of others / experts If the information is felt not to apply to their situation is the reasoning logical Need to understand the reasoning behind an idiosyncratic view Can the person give a logical explanation for the expressed choice

Some Useful Points to Consider Dispositional Autonomy In the absence of the ability to demonstrate logical reasoning behind the decision is this consistent with the persons choices through life? Check with relatives / caregivers Consistency of decision making is important What is the person likely to decide /do without you walking them through the decision?

Optimising Competency Best time of day and setting Supports / absence of influence Provision of information required to make the decision Including choices, risks, benefits, likely consequences Provision in form(s) for optimal comprehension Communication aids Simple chunks of information in logical sequence Checking comprehension and reasoning at each step

Undue Influence: Subversion of Will Consider when: Vulnerability: Anxiety, personality factors, cognitive (memory or executive function) Evidence of a pathological or dependent relationship with caregiver: Coercion, threat to abandon/neglect, lies leading to negative feelings Opportunity to influence testamentary act Choices result advantage to one person over self or involved others Attempts to control access by others / assessor True wishes of testator not reflected in will

PPPR Act Forms http://www.legislation.govt.nz/regulation/public/2008/0310/latest/DLM1597901.html http://www.justice.govt.nz/courts/family-court/documents/pdf-pamphlets/Courts-044.pdf