Balancing Risk and Autonomy: what is the role of the law?

1. Balancing Risk and Autonomy: what is the role of the law? Psychogeriatric Association Conference, Prince George April 22, 2016

2. BCCEAS BC Centre for Elder Advocacy and Support (BCCEAS) provides services provincially: • Seniors Abuse and Information Line (SAIL) • Victim Services • Legal Services • Outreach

3. SAIL Line • First contact point into BCCEAS • 8am-8pm – 7 days/week • 604-437-1940 and toll free 1-866-437-1940 • TTY 604-428-3359, toll free 1-855-306-1443 • Language interpretation

4. What is the Role of Law? • Law assumes all adults have capacity unless… they are found not to have capacity • The law allows adults to take risks… up to a point • Capacity is a legal finding, not a medical one • Capacity is not an on/off switch • The law allows decision-making to be taken away • Substitute vs assisted decision-making means the adult should be contributing to the decision as much as possible

5. Agenda 5 Resource: BCCEAS Definitions Assessing Capacity Legal Issues Incapacity & Elder Abuse Resource: Victim Service ebook Resource: Legal Issues in Residential Care Identifying Incapacity Executive Functioning BCCEAS Assessment Tools - Capacity worksheet - Undue influence flags Medical Assessments Standards – RA’s and POA’s UN Convention – people with disabilities Resource: re:actCapability & Consent Tool

6. Definitions Terminology, general definitions

7. Terminology - Three C’s For the purposes of this presentation, we will be using the following inter-changeably: • Capacity/Incapacity • Capability/Incapability • Competence/Incompetence Usually we use the terms capacity and incapacity 3 C’s

8. Legal Capacity – It’s Legal The assessment of someone’s capacity is a legal assessment: 1. An initial assessment component • and, if necessary, - 2. Use of a clinical consultation or formal evaluation by a clinician as an aid to the legal assessment, • and – 3. A final legal judgment about capacity by the lawyer(or Judge if need be).

9. Why Not Their Physician Deciding? Physicians are highly trained in: • Diagnosis – what illness(es) is/are causing the symptoms? • Functional Assessments – assessing impact on functioning (activities of daily living) • Treatment – what can be done to improve or cure this illness and its symptoms?

10. Legal Issues Legal presumptions, legal standards

11. Under Age – presumed incapable • Age 12 – to consent to adoption – Adoption Act • Age 12 – criminal responsibility – Youth Criminal Justice Act • Age 15 – to consent to sexual relations – Criminal Code • Age 16 – to enter into an insurance contract – Insurance Act • Age 16 – to marry – Marriage Act • Age 18 – adult criminal responsibility – Criminal Code • Age 18 – to vote federally – Canada Elections Act • Age 19 – to vote provincially – Election Act • Age 19 – capable for most purposes in BC - Age of Majority Act

12. Adults – presumed capable • When you reach adulthood, the legal presumption is reversed - in BC, every adult is presumed to be capable of making decisions. • Presumption is rebuttable in all cases if the test for capacity cannot be met • An adult’s way of communicating with others is not grounds for decisions about incapability – man on right one of the most ‘capable’ people on earth…

13. Legal Standards of Capacity • There are different standards or tests of legal capacity for different situations • Most standards are found in the common law – there are only a few statutory standards (EPOA; RA’s) • BC Law Institute is studying need for more statutory standards, to bring more clarity to this area

14. Incapacity and Elder Abuse

15. Incapacity and Abuse • Diminished capacity increases abuse risk. • Abuse can cause cognitive problems: • Illness; • Injury; • Trauma; • Loss, etc.

16. Dementia and Reporting Abuse • Cognitive limitations can result in being discredited when report actual abuse • A diagnosis of dementia should not be interpreted to mean a person is not an accurate reporter • Abuse & neglect disclosures should NOT be discredited due to dementia

17. Resource • Victim Services e-book “Understanding and Responding to Elder Abuse” • Risk factors, characteristics of the abuser, why older adults may be unlikely to ask for help, possible reactions by friends and family • Working with older adults including sensitivity to cultural factors, communication techniques, assisting older adult to take action • Resources including videos about HAs, PGT, BCCEAS

18. Victim Services e-book link • http://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/victims-of-crime/vs-info-for-professionals/info-resources/elder-abuse.pdf • Or link from BCCEAS website www.bcceas.ca

19. Legal Issues in Residential Care • E-book via BCCEAS website • Statutory Framework • Resident’s Bill of Rights • Legal Issues in Admission and Transfer • Legal Issues when Living in Residential Care • Rights, Remedies and Problem Resolution • Consent and Capacity • Substitute Decision-Making

20. Legal Issues in Residential Care • http://wiki.clicklaw.bc.ca/index.php/Legal_Issues_in_Residential_Care:_An_Advocate's_Manual • Or link from BCCEAS website www.bcceas.ca

21. Identifying Incapacity What causes it, conditions confused with dementia

22. Dementia – what is it? • Describes a group of brain disorders that cause memory loss and a decline in mental function over time • Mild to severe cognitive impairment - depends on number and location of brain cells destroyed or lost. • Some conditions can be treated and slowed down, others are irreversible. • Dementia should be understood and appreciated as a terminal illness, not just a by-product of aging

23. Common Symptoms • Short-term memory loss coupled with poor judgment and reasoning. • Becoming lost in familiar places. • Difficulty using or understanding words • Difficulty performing routine tasks that require organization (e.g., balancing a cheque book, making a grocery list, shopping).

24. Dementia Doubling Rule Doubling Rule Risk doubles every five years Each additional risk factor approximately doubles the risk For example, positive family history doubles the risk Note that even up to 80 yrs , almost 90% of seniors are not at risk of dementia.

25. Effect of Alzheimer’s Disease on the Brain Alzheimer’s is an extreme form of dementia, especially in its advanced form.

26. Conditions Confused with Dementia Depression • emotional withdrawal • confusion • agitation • common conditions for people living with abuse. NOTE: Depression can often be treated and health often improves when abuse stops.

27. Conditions Confused with Dementia Delirium • Sudden temporary state of mental confusion and fluctuating consciousness • Results from: high fever, intoxication, shock, malnutrition, dehydration , high/low blood sugar or even things such as bladder or urinary tract infections • Characterized by anxiety, disorientation, hallucinations, delusions, and incoherent speech. NOTE: Delirium can be treated – food, insulin, rehydration, etc.

28. Conditions Confused with Dementia Abuse of Drugs/Alcohol • Abuse or misuse of prescription drugs. • Abuse of alcohol • Delerium can be result NOTE: Alcohol and drug abuse can be treated at any age.

29. Conditions Confused with Dementia Aphasia • mild to severe impairment of speech and ability to read or write. • Caused by injury to the brain (e.g., stroke, head trauma, tumor, infection). • Some aphasia is temporary. NOTE: With support and patience, most people can communicate.

30. Conditions Confused with Dementia Paranoia • irrationally suspicious behaviour • is not normal nor is it age related. It requires medical assessment – may be due to: • Social isolation (e.g. psychotic depression). • A type of dementia (Lewy body). • Progressive sensory decline (e.g., hearing and sight impairment).

31. Conditions Confused with Dementia Other Disabling Conditions • Cerebral Palsy (CP) • Multiple Sclerosis (MS) • Parkinson's Disease • Lou Gehrig Disease (ALS) Many with these disabling conditions are assumed to be incapacitated.

32. Executive Functioning Impairment of executive functioning – a significant challenge

33. Executive Brain Functions From the frontal lobe of the of the brain: • Impulse control • Abstract thinking • Planning • Judgment

34. Executive Functioning Executive dsyfunction can: • turn a tea-totaler into a heavy drinker, or • a prudent person into a ‘player’ or target for lottery scams etc.

35. Hardest Incapacity to Assess • Identifying/assessing incapacity involving executive dysfunction can be very challenging • Older adult may present as well dressed, articulate, with good recall – seem perfectly fine. • BUT – older adult may be doing things that waste $ - is this their nature, or has it been caused by incapacity?

36. Changing Values • Older adult may be doing things that waste their $ • Is this their nature? • Has it been caused by incapacity? • OR - have their values changed over time – have they decided to ‘live a little’ after a life of prudence?

37. St. Mike’s Study of Homeless • St. Michael’s Hospital in downtown Toronto studied the homeless population [Centre for Research on Inner City Health] • Over half (53 %) of those in homeless shelters had sustained a traumatic brain injury vs. 8.5% per cent lifetime prevalence rate among the general population • 70% suffered their injury before they became homeless.

38. Capacity Assessment Tool A tool used at BCCEAS to assess capacity when required.

39. ABA Capacity Assessment Handbook • Compares legal standards and clinical (psychological) models • Recommends a procedure for conducting an assessment and a suggested capacity worksheet • Suggests how to enhance capacity where possible • When/how to refer for assessments • Using and understanding capacity assessment reports

40. Capacity Assessment Worksheet This capacity worksheet helps us identify and organize: • Observational signs of diminished capacity. • Mitigating factors affecting capacity. • Transaction-specific elements of legal capacity. • Task-specific factors in evaluating capacity. • Preliminary conclusions about client capacity.

41. Process The process outlined is meant to structure and record observations leading to a legal judgment that is: • Sufficiently comprehensive in scope; • Systematic in process; • Accountable if challenged; and, • Well documented.

42. Observation - tips • Focus on decisional abilities, not cooperativeness or affability. • Watch out for ‘confabulation’ – filling in the gap with stories, and ‘tells’ – inadvertent prompts by you for positive/negative answer • Pay attention to changes over time; history is important. •  Beware of ‘ableism’ and ‘ageism’ stereotypes. •  Consider whether mitigating factors could explain the behavior.

43. Check Your Assumptions Just because someone has: • a diagnosis of a mental illness; • dementia; • Alzheimer's Disease or related disorder; • a negative assessment; or even • a ‘Committeeship’ Order does not automatically mean that they lack decisional capacity [From Judith Wahl of the Advocacy Centre for the Elderly.]

45. BCCEAS

46. BCCEAS

47. BCCEAS

48. Undue Influence • The BC Law Institute has prepared a guide book (“Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide”) • It includes a checklist of recommended procedures, useful in any situation where undue influence is suspected. • It also includes a checklist of ‘red flags’

49. BCCEAS

50. BCCEAS