A forgetful physician was fretting: “Maybe Dx is a DAT I am getting.”

1. A forgetful physician was fretting: “Maybe Dx is a DAT I am getting.” Her recall declined, whereupon she opined: “I forgot what I found so upsetting.” HHFENN, MD

2. LEGAL ASPECTS of GERIATRIC PSYCHIATRY Howard H. Fenn, MD Clinical Associate Professor, Clinician Educator Line Stanford University Medical Director, Acute Geropsychiatry Unit Palo Alto Veterans Affairs Medical Center HHFENN, MD

3. TOP 10 REASONS PHYSICIANS SUED • Informed consent not obtained/documented • Informed refusal not obtained • Weak, undocumented patient education • Inattention to doctor-patient relationship • Overlooked lab results • Poor inter-professional communications • Medication problems • Weak medical records • Inadequate history-taking or documentation • Inattentive follow-up HHFENN, MD

4. LEGAL-GERIATRIC PSYCHIATRY: CAPACITY • Definitions • Philosophy and background • Specific competencies: the code • Informed consent • Assessment • Testamentary capacity • Advance directives • Elder Abuse • Undue Influence HHFENN, MD

5. DEFINITIONS Capacity Competence Specific competence Simple consent Informed consent Decisional impairment Informed refusal Testamentary capacity HHFENN, MD

6. SLATER V. BAKER & STAPLETON 95 Eng. Rep 860 [K.B. 1767] Facts: 2 surgeons disunited, without patient’s consent, a partially healed fracture Holding: “…it was improper to disunite the callous without consent; this is the usage and law of surgeons; then it was ignorance and unskillfulness in that very particular to do contrary to the rule of the profession, what no surgeon ought to have done…” HHFENN, MD

7. PHILOSOPHICAL BACKGROUND Deontological Ethics Immanuel Kant’s Categorical Imperative: “act only on a maxim by which you can will that it, at the same time, should become a general law.” Utilitarian Ethics Jeremy Bentham and John Stuart Mill: “act such that the act leads to the greatest good for the greatest number of people.” HHFENN, MD

8. CATEGORIES of CAPACITY DETERMINATION • De Jure: adjudicated in formal hearing • De Facto: court-ordered expert evaluation • Informal: for clinical treatment • Retrospective: prompted by litigation HHFENN, MD

9. 4 “D”s of De JURE INCAPACITY • Diagnosis: not sufficient • Deficit (psychiatric) &lack of function • Defined by code • Decision-making ability (specific)--1995: California (DPCDA) HHFENN, MD

10. DUE PROCESS IN COMPETENCY DETERMINATIONS ACT (DPCDA—1995) • Sections 810-814 California Probate Code • Determination of lack of mental capacity must be supported by evidence of deficit in at least one specific mental function HHFENN, MD

11. DEFICIT +LACK OF FUNCTION A determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, including, but not limited to, the incapacity to contract, to make a conveyance, to marry, to make medical decisions, to execute will, or to execute trusts, shall be supported by evidence of a deficit in at least one of the following mental functions…and evidence of a correlation between the deficit…and the decision or acts in question--Sec. 811 Probate Code HHFENN, MD

12. PROBATE CODE SECTION 810 (2005) (a) For purposes of this part, there shall exist a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions. (b) A person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wells or trusts, and performing other actions HHFENN, MD

13. SPECIFIC COMPETENCIES Provide food, clothing, shelter sec. 5250 W&IRefuse psychotropic meds sec. 5332 W&IManage assets sec. 812 PROBATE Informed consent--medical sec. 813 PROBATE Informed consent/conservatee sec. 1890 PROBATEInformed consent-dementia Rx sec. 2356.5 PROBATE Execute a will sec. 6100.5 W&IAdvance Directive sec. 4609 PROBATE Informed consent for ECT sec. 5352 W&I CODEFor research sec. 24178 H&S CODE HHFENN, MD

14. DPCDA MENTAL FUNCTIONS • Attention and concentration • Orientation to time, place, person, situation • Level of arousal or consciousness • Immediate recall, short-term, long-term memory • Communication, expressive and receptive • Recognition of familiar objects and persons • Understanding of quantitites • Abstract reasoning • Ability to plan, organize, carry out actions in rational self-interest • Ability to reason logically • Freedom from disorganized thinking, hallucinations, delusions, repetitive thoughts, euphoria, anger, anxiety, fear, panic… HHFENN, MD

15. COMPETENCEis the CAPACITY to: • Understand information relevant to the issue • Think rationally about alternative courses of action • Appreciate the situation of being confronted with a specific decision • Express a choice among alternatives HHFENN, MD

16. CONSENT to MEDICAL TREATMENTsec. 812-813 Probate Code • 1. Respond knowingly and intelligently to queries about that medical treatment • 2. Participate in that treatment decision by means of a rational thought process • 3. Understand all of the following terms of minimum basic medical treatment information with respect to... treatment: HHFENN, MD

17. MEDICAL TREATMENT of CONSERVATEE(Sec. 1980 Probate Code) (a) An order of the court under Section 1880 may be included in the order of apointment of the conservator… (b)…No court order under section 1880…may be granted unless supported by a declaration…by a licensed physician, or a licensed psychologist…that the proposed conservatee..lacks the capacity to give an informed consent for any form of medical treatment and the reasons therefor..” HHFENN, MD

18. INFORMED REFUSAL INFORMATION “...failure of the physician to disclose to his patient all material information, including the risk to the patient if the test is refused, renders the physician liable for any injury, a proximate (legal) causeof which was the patient’s refusal to take the test, if a reasonably prudent person in the patient’s position would not have refused the test if all material information had been given.” -- (BAJI No. 6.11.5) HHFENN, MD

19. PRESUMPTION of COMPETENCE No person may be presumed to be incompetent because he or she has been evaluated or treated for mental disorder or chronic alcoholism, regardless of whether such evaluation or treatment was voluntarily or involuntarily received. Any person who leaves a public or private mental health...--Sec. 5331 W&I Code HHFENN, MD

20. INFORMED CONSENTDEFINITIONS Autonomy: Personal freedom of action Kant: ability to make one’s own rules and carry them out in behavior. Constraints on Autonomy Ethical behavior for physicians: Avoid coercion Disclose necessary information Enhance understanding HHFENN, MD

21. INFORMED CONSENT: REQUIRED ELEMENTS A decision Information and Understanding Voluntariness: autonomy HHFENN, MD

22. ELDER ABUSE: DEFINITIONS • Elder: any adult 65 years or older • Dependent adult: those between ages 18-65 with mental/physical limitations which restric ability to carry out activities or protect their rights, not limited to physical/mental or developmental abilities or diminished capacity. • Includes those admitted to 24 hour health facility HHFENN, MD

23. ELDER ABUSESecs. 15600-15657.3 W&I Code Obligations for Health Care provider: 1. Report abuse 2. Do not perform any acts which may be in violation of the provisions “…There is no issue of exclusion or exemption raised by the record on this appeal (Central Pathology Services Medical Clinic Inc. V. Superior Court (1992) 3 Cal. 4th 181) HHFENN, MD

24. ELDER ABUSE No “blanket exclusion” from the Elder Abuse Act for health care practitioners --Delaney v. Baker59 Cal.App.4th 1403 (1997) HHFENN, MD

25. ELDER ABUSE: IDENTIFICATION • Physical/Sexual abuse—direct or threat to harm • Neglect-denial of food, clothing, or shelter, failure to prevent malnutrition or assist with hygiene • Failure to provide for mental/physical needs including abandonment • Failure to protect from health/safety hazards • Fiduciary abuse: stealing, misappropriated or unlawful use of patient’s funds by person in position of trust. HHFENN, MD

26. :ADVANCE DIRECTIVE INFORMED CONSENT TESTAMENTARY CAPACITY • Treatment: in the present and actual • Advanced directive: in the future and hypothetical • Testamentary capacity: one’s bounty, one’s heirs, and the decision. HHFENN, MD

27. TESTAMENTARY CAPACITYEstate of Jenks (1971) • Requires only that the testator have capacity to know and understand the nature and extent of his bounty, as distinguished from the requirement that he/she have the actual knowledge thereof…” HHFENN, MD

28. TESTAMENTARY CAPACITY Knowledge of the extent of property Knowledge of “Natural objects of his/her bounty”Capacity to hold both in mind at the moment of decision No provision in a will may be the product of an ‘insane delusion’. Undue Influence can void entire will or affected codicil. HHFENN, MD

29. INCOMPETENT to MAKE A WILL if • Cannot understand nature of the testamentary act • Cannot understand and recollect the nature and situation of the individual’s property, or • Cannot remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will. Probate Code Sec 6100.5) HHFENN, MD

30. CAPACITY for an ADVANCE DIRECTIVE • Future choice • Intervention when no longer capable • Some of choices involve medical treatment • Choices may include a surrogate • Choices could result in death or coma • Death and coma result in no choice • Change of directive is possible • Choices may supersede subsequent choices made by individual HHFENN, MD

31. INFORMED REFUSAL:TRUMAN V. THOMAS 165 CAL. REPORTER [1980] • Wrongful death suit brought by children Because Dr. Thomas failed to perform pap smear on mother, who died. HHFENN, MD

32. PREVALENCE of DECISIONAL IMPAIRMENT • Diagnosis of dementia by itself does not determine incapacity • 80-90% of mild-to-moderate Alzheimer’spatients are decisionally impaired • 44%, 45%, 67%, 69% of nursing home patients are decisionally impaired HHFENN, MD

33. UNDUE INFLUENCE • Individual’s will replaced by that of another • Coercion or complusion is not required but often present in testamentary context • Facts establish a presumption of -Opportunity (access, dependency, control, confidential relationship) -Motive (benefit to influencer) -Naturalness (relatives favored) -Susceptibility HHFENN, MD

34. UNDUE INFLUENCESEC. 1575 CIVIL CODE 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him.. 2. In taking an unfair advantage of another’s weakness of mind, or 3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress. HHFENN, MD

35. UNDERSTAND TREATMENT SITUATION and CHOICES (LS5) • Normal (MMSE >24) 100% competent • Mild AD (MMSE 20-23) 0% competent • Moderate AD (MMSE 9-19) 0% competent HHFENN, MD

36. CAPACITY=COMMUNICATE • A. The rights duties and responsibilities created by, or affected by the decision • B. The probable consequences for the decision maker and, where appropriate, the persons affected by the decision • C. The significant risks, benefits, and reasonable alternatives involved in the decision.SEC 812 PROBATE CODE HHFENN, MD

37. CAPACITY to REFUSE Riese v. St. Mary's Hospital 243 Cal Rptr 241 (Cal App. 1 Dist l987) • Able to participate in treatment decision by means of rational thought processes. • In absence of a clear link between patient'sdelusional or hallucinatory perceptions and his ultimate decision to consent or refuse treatment, court should assume that patient is utilizing rational modes of thought. HHFENN, MD

38. Mental Health / LPS Treatment as goal Involuntary commitment Beyond reasonable doubt Grave disability + mental illness Yearly review Mental health professional Probate Control of Estate Secure perimeter Clear and convincing Financial incompetence and/or dementia 2 years Petitioner: anyone CONSERVATORSHIPS HHFENN, MD

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40. TESTS of CAPACITY to GIVE INFORMED CONSENT • Evidencing a treatment choice (LS1) • Making a reasonable treatment choice (LS2) • Appreciating consequences of choice (LS3) • Providing rational reasons for choice (LS4) • Understanding treatment situation (LS5) HHFENN, MD

41. DECISIONAL IMPAIRMENT ASSESSMENT • MacArthur Competence Assessment tool (MacCAT) (Grisso et al, 1997) • Hopkins Competency Assessment Test(Janofsky et al, 1992) • Mini-Mental State Exam (Molloy et al 1996)Kim SYH et al., 2000 HHFENN, MD

42. CLINICAL STANDARDS Evidencing a treatment choice Making a reasonable treatment choice Appreciating consequences of choice Providing rational reasons for choice Understanding treatment situation PROBATE CODE Sec. 813 1. Respond knowingly and intelligently to queries about that medical treatment 2. Participate in that treatment decision by means of a rational thought process 3. Understand all…minimum basic medical treatment information with respect to... treatment: CLINICAL vs. LEGAL CAPACITY HHFENN, MD

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44. PROCESS of ASSESSMENT • Orthopedist examines injured player’s abilities =competence evaluation • Team orthopedist determines capacity to perform =de facto competence determination • NHL officials set rules for scoring =Legal code • Referee decides if goal made =de Jure HHFENN, MD

45. DEMENTIA POWERS • The conservatee has dementia... • …and lacks the capacity to give informed consent to the placement and has at least one mental function deficit pursuant to subdivision (a) of Section 812, and this deficit significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions pursuant to subdivision (b) of Section 812— • Section 2356.5 of Probate Code HHFENN, MD

46. COGNITIVE DOMAINS PREDICTIVE of DECISIONAL IMPAIRMENT in AD • Auditory comprehension LS 1 • Word fluency LS3 • Conceptualization  LS5 • Confrontational naming LS5 --Marson et al. 1996 HHFENN, MD

47. FORENSIC GEROPSYCHIATRY SUMMARY • Decision-making capacity is central • Competency Codes consistent with psychiatric • de Jure incompetence: • Diagnosis not sufficient • Deficit+loss of function • Defined by code • Decision-specific HHFENN, MD

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49. TO BOLSTER COMPETENCE • Present information piece-meal • Try-out research project • Bypass deficit with written memory aids • Target symptoms with medications (33%-40% with AD have psychotic symptoms) • Rx with Anticholinesterase inhibitors • Rx with Memantine when available HHFENN, MD

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