Civil Competencies

1. Civil Competencies July 6, 2006

2. Rationales for Civil Competency Rules • People have the right to self-determination (personal freedompreserved when possible) • In decision-making, people have the right to reasonable, full disclosure • Disabled people are entitledto services (social security determination, etc.) • As before, competency is functional

3. Guardianship • What is guardianship (sometimes called conservatorship)? • delegation, by the state, of authority over person or estate; general vs. specific guardianship • Who qualifies? • Incapacited person is “any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age…or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person” • More specific rules in some states require finding of inability to care for personal safety or to attend to food, shelter, clothing, or medical care, without which physical illness or injury would occur • de facto (factual) vs. de jure (ruled) incompetence; civil committment usually results in de facto incompetency

4. Guardianship (cont’d) • Guardianship proceedings generally not rigorous • Most states allow determination as to whether the alleged incapable person should attend hearing • Getting out of incapacity is difficult • Guardianship services • Guardianship can be abused (Michigan study) • Three issues in guardianship determination • whether a guardian is needed • who the guardian should be • what the guardian should do

5. Guardianship Questions • Is a guardian needed? • only an issue in “de facto” cases • very loose and informal • ambiguous standards; most states require finding “threshold” mental illness • clinical evaluation: take care to evaluate what the person can and cannot do • “Community Competency Scale” a good start, but little empirical data; requires person to perform actual tasks • utilize ecological assessment • home visit useful, analyze typical day • guardianship of person vs. estate (not really different when estate is not complex)

6. Community Competency Scale • Subscales: (akin to ADL’s) • Judgment, Emergencies, Acquiring Money, Compensation for Incapacities, Managing Money, Communication, Care of Medical Needs, Adequate Memory, Satisfactory Living Arrangements, Proper Diet, Mobility, Sensation, Personal Hygiene, Maintenance of Household, Utilization of Transportation, Verbal-Math Skills Searight, Oliver & Grisso (1983). The Community Competence Scale: Preliminary Reliability and Validity. American Journal of Community Psychology, 11, 609.

7. Guardianship Questions (cont’d) • Who will be guardian? • appointment likely a matter of policy or law; less likely the product of a mental health practitioner’s opinion • What will the guardian do? • objective standard: do what actions will best serve the ward • subjective standard: do what guardian thinks is best • best-interests principle usually applies

8. Alternatives to Guardianship • Guardianship is expensive (several $K) • Guardianship involves severe deprivation of rights; alternatives less so • Power of attorney: signer must be competent • Ways of dealing with incapacity • Document can say that the principal wants document to remain in effect after incapacity; this makes the POA durable • Document can go into effect when the person becomes incapacitated; this is a spring POA; should define how incapacity will be determined

9. Alternatives to Guardianship (cont’d) • Living Trust • Assets legally transferred to trustee • Assets managed on behalf of beneficiaries • Typically used for larger estates

10. Assessing Capacity to Manage Affairs • Typically based on informal ratings or impressions • Direct assessment approaches may be useful • Everyday memory questionnaires/scales (e.g., Rivermead) • Financial Capacity Instrument (Griffith et al, 2003)

12. Advanced Directives • Instruction from a competent individual regarding actions to be taken in the event of incompetence • Binding on the guardian • Types • Living will • Durable power of attorney • Statutes require patients to be provided with information about such directives • Essentially a “competence to consent to treatment” decision

13. Competency to consent to treatment • Disclosure of relatively complete information by a clinician… • …within a context that allows for voluntary choice… • …by a patient who possesses relatively adequate capacity to consent or decline the recommended treatment

14. Treatment: Disclosure • From the point of view of the clinician • From the point of view of the patient • Courts usually sanction limited disclosure(not at the level that would satisfy a medical practitioner, but that would contain a recitation of risks and benefits) • Clinicians must be willing to share authority

15. Treatment: Competency • Competency must be evaluated if question is raised • When is the issue raised? • when treatment is refused • protect against subsequent tort actionin the case of major medical procedure • Conceptual aspects of elements of competency: • expression of preference, understanding, reasonable decision-making process, reasonable outcome

16. Treatment: Voluntariness • A difficult issue because of the authority-laden contextin which such decisions are made • Competency vs. voluntariness is not easy to separate:e.g., a person who has a resonable understanding of situation but makes decision under duress; is this incompetence? • Competency as interactive construct

17. Attributions that discourage competency assessments • If the patient agrees with treatment recommendations, capacity must be intact • I am trained to provide treatment • I can’t participate in a patient’s decision to die • I know what is best for the patient • I am better trained than the patient to understand the implications of his decisions

18. Balancing Respect for Autonomy With Protection from Harm Respect for Autonomy Protection from Harm

19. Capacity: • “In general … and certainly in the case of medical treatment, persons have the right to make decisions that may lead to harm unless their ability to make autonomous choices is so limited that we consider them incompetent (or lacking capacity).” • “Self-determination, when not substantially impaired, trumps the interest in promotion of well-being and protection from harm.” • But WHY would respect for autonomy trump protection from harm? Grisso T. & Appelbaum, P.A. (1998). Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health Care Professionals. New York: Oxford University Press,, p. l3-l4.

20. Capacity to consent to treatment is a legal construct • “Informed consent" means consent voluntarily given by a person after a sufficient explanation and disclosure of the subject matter involved to enable that person to have a general understanding of the treatment or procedure and the medically acceptable alternatives, including the substantial risks and hazards inherent in the proposed treatment or procedures, and to make a knowing health care decision without coercion or undue influence.” • Title XLIV, Civil Rights, Chapter 765, Health Care Advance Directives; 765.101[9] FL. State Statutes.

21. Capacity to consent to treatment is a legal construct • “"Express and informed consent" means consent voluntarily given in writing, by a competent person, after sufficient explanation and disclosure of the subject matter involved to enable the person to make a knowing and willful decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.” • Title XXIX, Public Health, Chapter 394, Mental Health; 394.449[9] FL. State Statutes. • The HCP must provide enough information for the patient to make a “knowing” decision: • patient’s diagnosis • proposed treatment and its risks and benefits • alternative treatments and their risks and benefits • the risks and potential benefits (if any) of no treatment

22. Capacity/Competence • Understand information relative to the decision • Appreciate significance of information relative to decision • Ability to reason with relevant information so as to weigh treatment decisions • Ability to express a choice

23. Ability to express a choice: • Among the four components of capacity, ability to express a choice is more of a threshold ability • Absence of this ability is sufficient to warrant a finding of incapacity. • It may be necessary to utilize eye blink, gestures, pointing (nonverbal communication strategies) or an interpreter (foreign language, American Sign Language, etc.) in order to communicate with a particular patient.

24. Ability to understand: • Ability to understand is often the most salient ability from a legal perspective. • Consists of the ability to acquire and be able to repeat back, in one’s own terms, the nature of the condition, recommended treatment, and its benefits and risks, within the time frame necessary for making a decision and expressing a choice. • May be impaired by thought disorder, delusions, extreme emotional states, dementia, mental retardation.

25. Ability to appreciate: • Inferred from the patient’s acknowledgement that she/he may indeed have the condition in question - application of the diagnostic information to oneself. • Inferred from the patient’s acknowledgement that she/he may likely suffer the consequences of the condition if it is not treated - application of the prognostic information to oneself. • Consists of the person’s beliefs about the information. • Impaired via patently false beliefs.

26. Issues regarding appreciation: • Disagreement with the HCP’s characterization of the condition and prognosis is NOT adequate proof of incapacity. • Incapacity may be inferred when NON-acknowledgement results from: • substantially irrational, unrealistic beliefs, or distortions of reality, relative to the beliefs behind the choice • the suspect belief results from impaired cognition or affect • the suspect belief must be relevant to the patient’s treatment decision (the mere presence of an irrational belief does not prove incapacity) • religious beliefs that are not purely idiosyncratic, that predate the decision, and have been consistently held do NOT constitute impairment of appreciation

27. Ability to reason: • Consists of the ability to manipulate the relevant information rationally or logically. • The focus is on how information is processed relative to the person’s values, preferences and beliefs. • Functional reasoning should demonstrate: • sufficient sustained focus on the problem. • at least some consideration of the available options. • deliberation, during which there is consideration of consequences in terms of their probability and desirability relative to one’s values and preferences. • A “bad choice” is NOT proof of impaired reasoning!

28. Competency to Consent to Treatment • Questions in Determining Competency • has full disclosure (information-giving) occurred? • is the individual competent to consent to treatment? • is the consent voluntary?

29. Informed Consent • Purposes: • to promote individual autonomy • to encourage rational decision-making • Consequences of Failure to Give IC • battery or negligence can be charged if treatment given to a person whose consent is invalid

30. Research on Informed Consent • Adherence to “full disclosure” is rare • patients not typically allowed to determine alternative treatments • negative information omitted • Competency difficult to assess because • difficult to know if gaps in knowledge result from failure to disclose or incompetency • Doubt raised about whether most treatment decisions are made voluntarily • consent usually obtained “pro forma” • demand effects

31. Competency to Consent to Research • Informational duties of researchers • nature and purposes of research • risks and benefits of participation • alternative available treatments • limits of confidentiality • compensation/treatment for injuries • who to contact with questions • statement that participation is voluntary • statement about withdrawal of participation

32. Testamentary Capacity • Test is easy to state, difficult to apply • Essentials of testamentary capacity (the literate version): • “It is essential that a testator shall understand the nature of his act and its effects; the extent of the property of which he is disposing, and shall be able to comprehend and appreciate he claims to which he ought to give effect, and, with a view to the latter object, that no disorder of mind shall poison his affections, pervert his sense of right, or his will in disposing of his property, and bring about a disposal of it which, if his mind had been sound, would not have been made”.

33. Testamentary Capacity (cont’d) • Goddard v. Dupree (1948 Mass Supreme Court): • Testamentary capacity requires ability on the part of the testator to understand and carry in mind, in a general way, the nature and situation of his property and his relations to those persons who would naturally have some claim to his remembrance. It requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. And it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.

34. Testamentary Capacity • Must know a will is being made • Must know nature and extent of property • Must know “natural objects of one’s bounty” • Must know how the will actually distributes property; assessment of consequences is important

35. Testamentary Capacity Issues • Must have capacity at the time the will is executed. What if deteriorating? • Burden of proof on person bringing forth the will, but, • Presumption of capacity • Presumption of continuity • Evidence • Family observations (not impartial) • Lawyers, hospital witnesses • Medical records

36. Testamentary Capacity (cont’d) • Mental illness not enough • Prejudice, even ill founded, is not equivalent to lack of capacity • Self-determination vs. atypical distribution • Dividing line is “rationality” • Remember: goal is to assist trier of fact

37. Clinical Evaluation of Testamentary Capacity • “Bad decisions”don’t necessarily signal incompetency • Burden on petitioners in case of will contestation • Often, subject of evaluation is deceased, though some states have antemortem probate statutes • If dead: information will have to be collected from collaterals and from medical records • If alive: functional evaluation of four testamentary standards can proceed; recommend videotape • Beware of financial biases

38. Components of Testamentary Competency: Evaluation • Knowledge of making a will: direct questioning, including evaluation of “undue influence” • Nature/extent of property: correlating inventory with report; occupational, possessions, intangibles, etc. are targets • Natural objects: ascertain actual values, beliefs, and preferences of testator; don’t automatically assume that “reasonable person” standard means “like me”; ask who played major role in life • Manner of disposition: knowledge of likely impact of will; understanding of general consequences; is this understanding c/w values, beliefs determined above?