Capacity Determinations – Zealous Advocacy vs. Best Interests Standards

1. Capacity Determinations – Zealous Advocacy vs. Best Interests Standards Anthony Chicotel California Advocates for Nursing Home Reform 650 Harrison St., Second Floor San Francisco, CA 94107 Tel: (415) 974-5171 tony@canhr.org

2. Important Biographical Information

3. Real life example 1. Conservatee with no real capacity to make rational decisions; 2. Seeks to fight against a conservatorship 3. No real chance of success. Should his attorney follow the guidance of his client at all costs or attempt to insert his own judgment about what should happen?

4. Let’s Define Some Terms • Substituted Judgment • Best Interests • Zealous Advocacy

5. The Easy Cases Client 1: Mentally sharp, full capacity to make decisions • We defer on all decisions (so long as they do not affect others’ rights) – i.e., we’ll allow you to make bad decisions.

6. The Easy Cases Client 2: Irreversibly comatose, no known prior preferences • We make all decisions and since substituted judgment is not available, we must use a best interests standard

7. The Not So Easy Cases Client 3: Moderate dementia, no written directives, gets angry when mental ability is questioned. • What decisions do we allow, what decisions do we make? • The answer: it depends!

8. Capacity • Dictionary def. talks about ability to hold • Latin “capere”: to seize, take, or take in • Elder practice focus is on understanding risks, benefits, and alternatives to a decision

9. Capacity - Who’s Asking? • Capacity is not Binary nor Permanent, there are gradations and fluidity • Capacity as Incalculable Permutations • Pick a tv show? Buy a shirt? • Sell the house? Get married?

10. Capacity Determination Elements • Diagnosis • Functional abilities: regulate mood and affect, executive tasks, memory, etc. • Communication ability • Reasoning • Avoid undue influence? • Anecdotes

11. Even the Experts Don’t Agree • Marson, Daniel C., Journal of the American Geriatric Society (April 1997): 5 docs with extensive experience in assessing dementia were asked to determine capacity for 29 A.D. patients. The docs had 56% agreement. The results were deemed “alarming,” proving physician competency assessment is “subjective,”“inconsistent,” and “idiosyncratic.” The use of a specific definition of capacity improved physician agreement (76%). • A doctor’s declaration of incapacity is evidence of incapacity but not legally conclusive.

12. Capacity ≠ Competency • Competency connotes judicial determination. • A determination of incompetency divests the principal from making decisions, vesting decision-making to a third person. • Effect on Rights is the Key.

13. The Tension for Practitioners Client #3, questionable capacity, making bad decisions, what do you do? • Zealous Advocacy – get them what they want, autonomy first, trust the system will give right result. • Best Interests – get them what they need, safety first, the system might fail and bad things result.

14. Taking Sides • Zealous Advocate • who are we to judge (and impose) right and wrong? • Autonomy – this is America dammit • If we oppose clients, we won’t have clients • If we’re good advocates, we can convince and don’t have to force • Best Interests • Don’t we do what we do to help people? • Interventions can be precise, least intrusive • Being a good human being should trump being a good professional

15. Safety v. Autonomy

16. Professional Ethics Guidance Attorneys: • duty of confidentiality, loyalty, zealous advocacy • But, Model Rule 1.14

17. Model Rule 1.14 (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm . . . the lawyer may take protective action . . . and, in appropriate cases, seeking the appointment of a guardian ad litem or conservator.

18. Professional Ethics Guidance Social Workers (NASW): • promote the well-being of clients • In general, clients’ interests are primary but social workers’ responsibility to society legal obligations (mandated reporting) may on limited occasions supersede the loyalty owed clients. Clients should be so advised.

19. Professional Ethics Guidance Nurses (ANA) • Right to Self-Determination • Confidentiality: “not absolute . . . In order to protect the patient, other innocent parties, and mandatory disclosure for public health.”

20. Case Study #1 • John, 84, sent to nursing home post-fall/hip fracture • Lived alone, home shows signs of neglect – future falls waiting to happen • Rehab has him walking again, but barely • John is about to get in a cab to go home.

21. Case Study #2 • Linda lives at home with no-good son. • Linda is hospitalized after collapsing – dehydration, malnutrition, UTI • She insists on going home, will not consider home care or reporting son • Son is not cooperative

22. Bottom Line • Be the advocate you would want. • Don’t be afraid to ask. • Sometimes there is no “right” answer – do what you feel is best.

23. Checklist • No way of knowing preferences? Best interests • Clear capacity? Zealous advocacy • No one else is threatened • Defensible use of resources

24. Checklist • Questionable capacity? Give client preferences presumptive weight and only do otherwise if there is compelling reason. • Professional or legal responsibility • Serious harm potential • Waste of resources

25. Final Thoughts • Autonomy vs. Safety is perhaps the greatest ethical challenge for us • Most cases have relatively easy answers • Tough cases require lots of thought.