Mental Capacity, Informed Consent & Health Care Treatment Dallas Bar Association Health Law Section February 15, 2012 Robert Gordon JD, PhD Forensic &

Mental Capacity, Informed Consent & Health Care

Treatment

Dallas Bar AssociationHealth Law SectionFebruary 15, 2012

Robert Gordon JD, PhD Forensic & Clinical Psychology

One Galleria Tower, Dallas [email protected]

972 620 0230

Avoiding and Defending

Complaints and Lawsuits

Physicians & Hospitals

• Physicians

• Hospitals – CMS Committee on Medicare and Medicaid Services

Googlephilia

Med Mal Ad Campaigns

• 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 ConsentThe 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 DisclosureAnesthesiaCardiovascularDigestiveEarEyeIntegementary systemMale genital systemMaternity and intrauterine Nervous systemRadiologyRespiratoryUrinary system PsychiatricRadiation therapyEndoscopic surgeryPain Management procedures

Age Minority: Inference

Chapter 129. Texas Civil Remedies Code – Younger than 18.– Minority continued after 18.

Assessment of Older AdultsABA/ 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

– Known risk– Unforseeability – Mistakes vs. Negligence– Patient refuses to participate in explanation

Standard of Care

– Community standard– Professional standard– Reasonably prudent patient

Doctor As WitnessDeposition 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

fmri

3Cs - Rapport

• Competence

• Confidence

• Caring

Mental Capacity, Informed Consent & Health Care

Treatment

Dallas Bar AssociationHealth Law SectionFebruary 15, 2012

Robert Gordon JD, PhD

Forensic & Clinical Psychology One Galleria Tower, Dallas

[email protected] 972 620 0230