Sheila Otto BSN,M.A.. Recognize the essential elements of capacity Identify the tension between protecting vulnerable populations and respecting their.

Sheila Otto BSN,M.A.

Recognize the essential elements of capacity

Identify the tension between protecting vulnerable populations and respecting their choices

Describe how the Family Health Care Decisions Act applies to each of the cases discussed

On what basis would we question any of the presented cases?

We don’t usually question the decisions if they are in agreement with the team’s recommendation

We allow patients to make “bad decisions” every day

In health care, the consequences can be weighty

There is a presumption that adults have capacity

Capacity waxes and wanes Capacity is TASK SPECIFIC Responsibility of the attending physician to assess

Psychiatry is helpful for assessing mental illness, not needed for capacity

To treat patients to the best of one’s ability to improve or maintain health status when possible

The MD makes a recommendation and it is then up to the pt/surrogate to make a choice

Ethical principles of patient autonomy and beneficience are sometimes in tension

The patient must be able to understand the information presented to appreciate the information as it applies

to him/herself to reason with information so as to weigh

treatment options in a logical process to convey a choice

Capacity Risks, benefits, alternatives and side effects

of proposed treatment (including doing nothing) must be discussed

Pt. must make a choice free of coercion Pt must communicate choice

(pt or surrogate)

16yr old with recurring Hodgkins lymphoma. Physician recommends higher dose chemo and radiation

Refusing treatment Parents want him to get treatment

Age of 16…18 is age of majority. Is there something magical about 18?

What is the prognosis with or without treatment?

Should the parents’ decision hold? Assent of minor needed How exactly would you administer

treatment in the face of pt’s refusal Age, maturity, experience, prognosis Legal involvement if needed

Is the minor emancipated? (not in our case) Does the minor have capacity? Does s/he

object to the determination of capacity? (CONSULT ETHICS REVIEW COMMITTEE)

If s/he has capacity and refuses treatment, providers will be reluctant to “force” treatment

Legal recourse is suggested With minors, ASSENT is essential if they

have the ability to grasp their situation

Mrs. White, nursing home resident, presents with fever and pneumonia diagnosis

ABX ordered She refuses No surrogates

Fever, electrolyte imbalance, unfamiliar surroundings can all alter her ability to process information

What is the goal of her treatment? How invasive would the treatment be? Is her disease life threatening? Is the treatment in her best interest?

If the pt. is determined to have capacity, her consent or refusal stands

In this case, her capacity may wax and wane. Ideally she consents when she has capacity

If the timeliness is key to successful treatment (ABX) and the care is “routine”, the MD may authorize based on pt’s best interest

If the tx involves “major medical care” the MD may authorize based on best interest standard with the concurrence of another MD

Any treatment, service or procedure to diagnose or treat an individual’s physical or mental condition where gen. anesthesia is used or which involves significant risk or significant invasion of bodily integrity requiring an incision, producing substantial pain, discomfort debilitation or having a significant recovery period or which involves the use of physical restraints or psychoactive medications except when provided in post-op care or in response to acute illness, administered over 48 hrs or in an emergency

82 yr old admitted with mitral valve insufficiency, surgery recommended

Pt refuses, believing he just “has a cold” Son thinks dad is not able to make informed

decision Should we allow son to overrule dad?

Reasoning for refusal is faulty Valve replacement is a major procedure

which can be refused/accepted based on pt’s values

This pt has a surrogate (son) who is rightfully questioning dad’s capacity

The surrogate can make a decision based on dad’s longstanding values/preferences or

Without evidence of that, his “best interest”

If the pt is assessed and found not be have the capacity to make a thoughtful decision re. valve surgery, someone else should make decisions for him.

Is their a health care agent documented? If not, based on the law, there is a surrogacy list

that allows a family member or friend to do so If the pt. has shared his values, those should be

followed If not, the “best interest” standard should

prevail

Guardian or person legally designated to make health care decisions

Spouse or domestic partner Son or daughter (18 yrs of age or older) Sibling (18 or over) Close friend

43 yr old presents to the ED with weakness and fatigue

Found to have low HCT and high WBC MD recommends admission; pt refuses PMHx significant for paranoid schizophrenia Can pt. make a “bad decision” to leave or

are we obligated to protect her from herself?

Is she currently psychotic? How is psychiatric illness relevant to current

situation? Are her reasons for wanting to leave legitimate? What are the potential harms related to signing

out? Is there room for negotiation? Can she be

persuaded to stay with some help in making arrangements for the dog?

On what basis could you keep her against her will?

If this patient is assessed to have capacity, she is able to be discharged even if against medical advice

A patient with a mental illness is NOT automatically determined to lack capacity

If there is a question, a psychiatry consult would be in order

If the pt had been transferred from a mental health facility, notify the director of the facility and the mental hygiene legal service

Bobby is a high functioning young man with Down’s syndrome admitted with chest pain

MD feels he should go to cath lab Who should sign consent?

Should the provider automatically look for a third party to consent? On what basis?

Bobby lives somewhat independently, how would we evaluate his ability to make a sophisticated decision to consent to cardiac cath?

Who else might one want to talk with? Chest pain can be a sign of an emergent

and even life threatening event, so the stakes are higher

Persons with developmental disabilities are covered under Surrogate Procedure Act 1750 B

Capacity should be determined by a physician or psychologist who is either employed by a developmental disabilities service office or been employed for a minimum of 2 yrs to render care/service in a facility/program operated, licensed or authorized by OPWDD, or has been approved by the commissioner of OPWDD

Family or guardians can play an essential role in medical decision making but for life and death decisions specific criteria must be met

Gina is admitted with sepsis and the recommended course of treatment is 7 days of iv ABX.

She is well known to staff as a crack abuser and freely admits that she needs to go back on the street to earn $ for drugs

Refuses rehab; wants to sign out AMA Should staff get an involuntary

commitment?

Do pts. under the influence have capacity? Do these pts. have capacity once they are

no longer “high”? Are these pts making “sound” choices,

based on an understanding of the risks and benefits?

Is the need for the drug overriding their capacity?

On what basis could you “force” treatment?

Persons with substance abuse issues may well lack capacity on admission to a hospital, but after a period without the drug/ETOH, they can be assessed to have capacity.

Once they have capacity, it is common for them to make “bad” decisions based on their need to get more substance

This coercive pressure is significant, but there is no legal mandate to “protect” them from themselves.

Assessment of capacity is the responsibility of the attending physician

This assessment may have to occur on multiple occasions as capacity waxes /wanes

Capacity is TASK specific Pts. Are allowed to make bad decisions Persons with mental illness or developmental

disabilities do not AUTOMATICALLY lack capacity but special attention to their vulnerable status must be paid

The FHCDA has given us guidance on selection of surrogates for pts who lack capacity

Withholding and withdrawing life sustaining treatment requires meeting specific criteria

MDs are now authorized under the law to authorize treatments for pts who lack capacity and who lack a surrogate.