CAPACITY AND SURROGATE DECISION MAKING Brian E. Wood, D.O. Associate Professor and Chair, Dept. of Neuropsychiatry and Behavioral Sciences Edward Via.

CAPACITY AND SURROGATE DECISION MAKING

Brian E. Wood, D.O.Associate Professor and Chair,

Dept. of Neuropsychiatry and Behavioral Sciences

Edward Via Virginia College of Osteopathic Medicine

Assistant Professor of Clinical Psychiatric Medicine

University of Virginia School of Medicine

[email protected]

Language

Whenever learning a new system, it is much like learning a foreign language. Classical

Education focuses on language as a medium through which the mind is trained. Understanding the language of the legal system, the medical

system and the interface of the two are crucial in

understanding the elements of capacity

and competency.

Capacity vs. Competency Definitions

“Competence can be seen as a threshold requirement for persons to retain the power to make decisions

for themselves.”Appelbaum and Gutheil, Clincal Handbook of Psychiatry and the Law, second ed.

Capacity is the capability to perform or produce

wordnetweb.princeton.edu/perl/webwn

CAPACITY VS. COMPETENCY

• Medical opinion• May be more specific• Refers to ability

• Legal determination• May be more global• Refers to ability plus

information and education.

What must be present to establish Competence?

Cognitive and Emotional Recognition (Capacity)

• Ability to comprehend factual information in some form.

• Ability to utilize factual information to form conclusions and judgment.

• Individual must recognize emotional impact and significance of decisions.

• Modulation/containment of emotion

Information

• Factual information must be made available.– Ex. Reasonable knowledge about a proposed

surgery must be presented to a patient in order to establish informed consent for the procedure.

Communication

• Individual must have the capacity to meaningfully communicate a choice.

• The mechanism of communication may be debated– Ex. An individual has a pontine injury and can

only communicate by blinking her eyes. Is this a meaningful mechanism for communication?

Ability for Factual Understanding Appreciation of CircumstancesRational manipulation of Information

Capacity

Communication of ChoiceFactual Knowledge

AXIOMS

• Adults (over age 18 or emancipated minors) are assumed to be competent unless they are adjudicated otherwise.

• An alleged condition of incompetence must be proven.

• Opinions regarding competence or incompetence can always be challenged until a legal determination has been made.

Summary• Capacity is an integral component to

competency.• Competency is dependent on a number of

interrelated components and is therefore a complicated construct open to legal interpretation and argument.

• Competency is an assumed condition provided statutory age is met.

SURROGATE DECISION MAKERS

BASIC CONCEPTS

• Many surrogate decisions involve little risk to patient rights.

• It is appropriate and efficient to utilize informal protocols for most surrogate decision making.

• As risk increases or there is dissention among interested parties, there is a need for increased scrutiny and legal formality in order to safeguard patients’ rights.

Surrogate Decisions

Instruction is PredeterminedAdvance DirectiveLiving Will

Decision Maker is Temporarily AssignedEmergency decisionsInformal surrogate decisions

Decision Maker is Legally DeterminedPOAGuardianship

Predetermined Instructions

ADVANCE DIRECTIVES

• Choices or parameters that are set forth by an individual with capacity to do so at the time that the document is executed.

• May outline any decision that the individual would make on his or her own behalf.

• Usually exercised at such time as an individual is not capable of communicating a decision to others including caregivers.

Decision Maker Temporarily Assigned

INFORMAL DECISION MAKERS

• Persons who know the incapacitated person and will make decisions on his/her behalf (usually family or friends)

• reduces the complicated and costly procedure of guardianship etc.

• common in health care decisions ex. DNR

• has been included in the statutes of some states.

EMERGENCY TREATMENT

• If delay in treatment may result in required to preserve life or to prevent serious impairment of bodily functions, consent is implied, although known directives should be considered.

• Utilize informal/formal surrogate decision maker as soon as available.

• If not available then consultation with other physicians to establish the urgency is advisable.

Decision Maker Legally Determined

POWERS OF ATTORNEY

• Standard assignment:– decision maker is assigned and in force from

time of execution.

• Durable Power of Attorney.– Endures incapacity of individual.

• Springing Power of Attorney– Comes into force when person is incapacitated

but is not in force prior to that time.

Properties and Limitations of POA

• Person must have capacity in order to assign• May be as global or as specific as determined• POA may act in person’s stead but does not

necessarily restrict the person’s ability to act on his/her own behalf

• Best interest vs. Substituted Judgment standards– Karen Anne Quinlan case

Guardianship

• Allows for decisions to be made for a person who is adjudicated incompetent (ward) by another person appointed by the court to act on his/her behalf.

• Guardian is required to act in ward’s best interest as appointed by the court

• Ward does not generally retain the authority to act on his/her own without guardian.

Necessary Conditions for Guardianship

• Person is incapacitated to make decisions regarding his/her affairs.

• Person requires decisions to be made.

• Person is unlikely to regain capacity to make decisions regarding his/her affairs (not a temporary remedy although may be revoked by the court)

Process of Guardianship

• Petition filed by interested party alleging incompetence.

• If the judicial authority accepts probably cause, a Guardian ad litem is appointed to insure the protection of the person’s rights until and during the proceedings

• Information is collected and heard by the court

• Guardian is appointed by the court if need is proven (frequently a relative or person of standing in the community)

Limits to Guardianship Authority

• May consent to all health care needs with the exception of “extraordinary procedures”– Sterilization procedures– Psychosurgery– ECT in some states

Guardianship and Admission to MH Facilities

• Admission of the incapacitated person by an appointed Guardian requires:

– The guardianship order specifically grants permission

• Proposed guardian must demonstrate a plan to provide for the incapacitated person in the least restrictive environment.

– The guardian is not professionally related to the incapacitated person or have relationship with the facility where the admission is to occur.

– The admission cannot exceed 10 days duration. If so the

admission requires involuntary commitment.

Advanced Directives and MH Admission

• A person can specifically grant authority to a surrogate decision maker to agree to MH admission in the event of his/her incapacity.

– If the patient lacks capacity or does not object.

– Admission cannot exceed 10 days in duration

• A person can specifically grant authority for a surrogate to agree to admission even over his/her objection.

– Only if AD contains a specific statement from a physician stating that he/she has capacity and is aware of the ramifications of this decision.

– The Admission cannot exceed 10 days in duration.

Limitations to Utility

• May take several months (although guardian ad litem is generally appointed quickly

• Expensive: >$2000.00.

• Requires someone willing to serve as guardian.

• Difficult to reverse if ward’s capacity changes

CONCLUSIONS

• Capacity and Competency are specific to need and ability

• Basic Concept of increasing formality with increasing risk dictate type of surrogate decision.

• Types of surrogate decision making

– Instruction predetermined

– Decision Maker temporarily assigned

– Decision Maker Determined

• Capacity and Surrogate decision making have wide ranging implications in treatment of Geriatric patients.

Resources

Virginia Guardianship AssociationPost Office Box 9204Richmond, Virginia 23227804-261-4046

http://www.vgavirginia.org/default.asp

League of Older Americans, Area Agency on AgingP.O. Box 14205

Roanoke, Virginia 24038-4205

706 Campbell Avenue, S.W.

Roanoke, VA 24016

(540)345-0451

http://www.loaa.org/