1. How and When (Not) to Determine Decisional Capacity
Lea C. Watson MD, MPH
Geriatric Psychiatry
Consultation and Training

2. Doctor posing as game show host
Does he have the capacity to make such a decision?
…… follow along to see

3. 4 cardinal principles of medical ethics
*Often boils down to a patient’s autonomy vs. non-maleficience

4. Informed consent 3 critical elements:
Providing information in full disclosure
Voluntary capacity (no coercion)
Decisional capacity

5. When do we worry about capacity?
When the resident doesn’t make the choice we think they should make 😉
“ We want autonomy for ourselves and safety for those we love. ”
- Atul Gawande

6. You should not be held to a higher standard of decision-making just because your capacity has been called into question.
We don’t make most patient describe a detailed list of risks and benefits before consenting for surgery. Maybe we should! Generally understanding based on the 4 elements should be good enough.

7. Don’t make it harder than it needs to be
Is there truly a decision that needs to be made?
Or is the natural trajectory of the situation in the resident’s best interest already?

8. Capacity changes over time and depends on the question.
If you can’t understand the question – how can the patient?
Be sure you know the exact question – sometimes there isn’t even a question! Providers and staff may just be worried they are decompensating. EXAMPLE: severely psychotic individual has been tried on nearly every antipsychotic including clozapine but still has residual sx. : chronic but stable - He is declining newest recommendation. And I get called to see if he has “capacity.” The actual question turns out to be this: does a symptomatic, but stable resident have the right to refuse taking any antipsychotics even if he has schizophrenia, understanding that he has not responded to any ever before?

9. Assessing decisional capacity is a professional opinion, not a legal fact.

10. When we assess capacity we are evaluating the PROCESS of decision-making not the DECISION itself.

12. Decisional capacity
Is NOT the same as competency (determined by judge)
IS always only about a specific decision and circumstance
IS fluid over time and context
Does NOT require a mental health professional
Is NOT absent just because someone has a guardian, is committed, or has POA
Is NOT absent just because of cognitive impairment

14. Who can determine capacity?
You DO NOT have to be a psychiatrist or a psychologist to render an opinion about a capacity decision
Any competent clinician has the right and RESPONSIBILITY to provide such opinions regarding relevant decisions
This also applies if the resident has a POA or MDPOA
To determine COMPETENCY, the judge (via Colorado law) recommends a psychiatrist or psychologist to perform an evaluation (but the PCP can still provide their opinion about capacity about a specific decision – which in some cases stands alone )
EXAMPLE: Living alone with fragile diabetes and 4 previous failures at home. The PCP knows this the best and is most suited to provide an opinion about the person’s ability to live alone.

15. Things to document Specific decision being addressed
What quadrant (e.g. low risk, high yield)
Basic orientation and cognitive measures (MOCA, SLUMS)
4 elements, elaborating on their logical understanding of risks and consequences

16. People have the right to make bad decisions.

17. Who qualifies for a guardian (CO law)?
An adult may be adjudicated incapacitated (incompetent) “who is unable to effectively receive or evaluate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.”

18. Common Sense
If low risk and and family on same page, don’t force issues of guardianship
Patients are not REQUIRED to have a proxy
Seek counsel of peers, ombudsman, ethics consult
Encourage second opinion on high risk recommendations
If resident is not even oriented, do we really need a fancy neuropsych evaluation to show that?
Spend most energy on high risk, low yield decisions (severe dementia, serious surgery)

19. Your cases – do they have capacity?
85 mod dementia, DNR, but no advance directives and no family - refusing surgery for valve replacement due to non-critical mitral stenosis (high risk, low benefit)
60 schizophrenia seeking injections for chronic back pain (low risk, high benefit)
73 severe dementia with bacterial pneumonia consents for ABX (low risk, high benefit)
88 frail, mild dementia - previous failures at home wants to leave AMA (high risk, low benefit)
78 mod dementia suddenly giving all his money away to strangers (high risk, low benefit)

20. Things to consider Ethical principles
Get supportive family/friends involved
Life expectancy
COR status
Standard of medical care
Are they saying yes or no?
Assent matters
EXAMPLE: If a resident refuses an amputation (saying no) are we going to do it against their will? Even if they have a guardian, assent matters.

21. The case of doctor playing game show host
Could he communicate his choice to do so ?
Did he understand relevant info ?
Appreciate the consequences ?
Rationally consider other options ?
My professional opinion is that he HAS DECISIONAL CAPACITY to pose as a game show host, confirming that people have the right to make bad decisions.