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How and When (Not) to Determine Decisional Capacity

Learn the principles and process of determining decisional capacity in medical ethics, distinguishing it from competency. Explore the factors to consider, rights of individuals to make decisions, and when to seek additional opinions. Real-life cases highlight the importance of ethical considerations in decision-making.

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How and When (Not) to Determine Decisional Capacity

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  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.

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

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

  10. 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

  11. 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 )

  12. 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

  13. People have the right to make bad decisions.

  14. 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.”

  15. 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)

  16. 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)

  17. 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

  18. 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.

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