The Complexities of Mental
Capacity:
A Key Elder Rights Issues
2012 IL Elder Rights Conference
Holly Ramsey-Klawsnik, PhD
© 2012 Ramsey-Klawsnik
All Rights Reserved
Discussion
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Complexities of mental capacity
Challenges in screening capacity
Possible inaccurate assumptions
Role of physical & mental illness,
disability, developmental disabilities,
dementia, neglect and abuse
• Cultural issues
• Gentle, respectful methods for screening
• Using screening tests
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Mental Capacity
• An evolving clinical and legal
concept
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Clinically
• An individual
– Has capacity
– Has diminished capacity or
– Lacks capacity
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Legally
• An individual has or lacks capacity
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Current Thinking
• Capacities NOT capacity
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Capacities
• Decisional - ability to make decision
• Executional - ability to execute
• May be able to make decision but not
personally execute
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Abilities/Domains
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Provide medical consent
Consent to APS intervention
Make financial decisions
Manage finances
Engage in contracts/marry
Make a sound will
Drive
Consent to sexual activity
Manage ADLs or IADLs
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Current Thinking
• Evaluations should assess specific
domains
• Limited court orders only for
impaired domain(s)
• Avoid global descriptions when only
limited impairments
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Procedures for Assessing
• Interview, observe & interact
• Obtain collateral data
• Formal tests
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Functional assessment
Physical exam with lab tests
Psychological, including I.Q.
Neuropsychological
Medical tests of brain functioning
Psychiatric
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Concerns
Capacity lack may be temporary
Neglect/abuse can decrease capacity
Disability can mask capacity
Brief, crude testing can be harmful
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Between a Rock & a Hard Place
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APS workers expected to assess/screen
Not able to determine capacity
Critical decisions hinge on capacity
Difficult to obtain formal testing
“Quickie” tests can lead to false readings
Problems with 1x assessment
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Mental Illness & Capacity
• Most with dx MI have capacity
• Major MI can cause psychosis &
temporary incapacity
• Effect of psych meds + or -
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Case Example
• Does this woman lack capacity?
• What is the evidence that she does
or does not have capacity?
• How would you further assess?
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Mrs. T.
• Police referred “harmless but
deranged” 79 yo widow to APS,
repeat “nuisance calls”
• Lives alone – children out of area
• Calls police: “invaders” in her attic
• No heat due to no gas
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Mrs. T.
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Owned home in middle-class area
Home clean, well-maintained
Has raised 4 kids, worked in office
Independent in ADLs & IADLs
Hygiene good, memory intact
Drives, does errands
Adamant little people in attic stealing
Appeared paranoid, delusional
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Physical Disability & Capacity
• Many with physical disabilities
mistaken as incapacitated
• CP, MS, Parkinson's Disease, Lou
Gehrig Disease (ALS), aphasia
• Case example: Harold, has CP
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Need with Physical Disabilities
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Communication remedies
Time, observation, interaction
Background & collateral info
May need specialists to assess
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Disease/Injury
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Illness and treatment affect capacity
Infections, fluid in lungs, etc.
Meds can alter cognition
Post-surgery or trauma NOT time to
assess capacity
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Mrs. N.
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74 y.o. independent widow
Fell, broke hip, surgery resulted
MD used MMSE one day post-op
Mrs. N. failed
MD diagnosed & charted dementia
Outcome…
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Developmental Disabilities
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Include intellectual disabilities
I.Q. of 70 or below
Many with DD have capacity
Specific testing required
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Dementia & Capacity
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Dementia typically progressive
Capacity retained early-mid stages
Abilities tend to fluctuate
Need multiple reads at various times
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Dementia Diagnosis Requires
• Multiple cognitive deficits, including memory
impairment
• Gradual onset
• At least one of:
– Aphasia – language disorder
– Apraxia – motor impairment
– Agnosia – failure to recognize items
• Disturbance in executive functioning
– Planning
- organizing
– Sequencing
- abstracting
• Must be decline & severe impairment
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Caution re: Dementia Dx
• Dementia dx should not be
interpreted as person not accurate
reporter
• Abuse & neglect disclosures should
NOT be discredited d/t dementia
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Neglectful Care
• Can profoundly affect cognition
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Malnutrition
Dehydration
Untreated illness, infection
Lack of sleep
Over- under-medication
Isolation
• Much caution needed in assessing
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Case: Mr. W.
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Arrived at ER in poor condition
Disclosed abuse & neglect to nurse
APS report made
Admitted then displayed confusion
Disclosures dismissed, dementia
diagnosed
• Transferred to LTC
• Outcome…
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Abuse & Capacity
• Diminished capacity increases abuse risk
• Abuse can cause cognitive problems
– Illness, injury, trauma, loss, etc.
• Cognitive limitations can result in being
discredited when report actual abuse
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Deliberate Interference
• Abuser may hinder victim abilities to
exploit
• Over, under-drug, isolate, disorient,
deny adaptive devices
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Case: Lady From Georgia
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Moved to Ohio at son’s urging
There, imprisoned in his home
Isolated, exploited, abused, neglected
Drugged,presented as self-neglecting
Crude assessment by MDs
Son obtained guardianship
FE, neglect, abuse increased
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Screening Capacity
• Clinically complex, especially when
– Abilities fluctuate
– Communication barriers exist
• Limitations with brief tests
• Impact on client and rapport
• Risk of false positive/negatives
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Consider
• When assessing cognitive abilities…
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Culture & Language
• Culture, speech & language of both
client and tester impact test accuracy
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Consider
• Am I seeing client at his/her worst?
• Am I seeing client at his/her best?
• Is the functioning typical?
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Consider - Is Client
Hungry, thirsty, sick, drugged, sleep
deprived, fearful, in pain or crisis,
grieving, acutely anxious,
preoccupied?
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If Person Not at Baseline
• Functioning below normal displayed
• Cognitive assessment inappropriate
• Intervention may be needed
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Consider:
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Have I build rapport?
Have I explained my role?
Have I sought consent?
Am I communicating clearly?
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Consider:
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Is situation conducive to assessing?
Physical conditions
Privacy
Safety
Are there urgent unmet needs?
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Key
• Observation and interaction over
time necessary to fully assess esp.
when disabilities exist
• Also need reliable history
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Use Collateral Data
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Beware tainted reports
Obtain multiple opinions
Obtain basis for opinions
Records may be inaccurate
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Testing
• No standard test battery for evals
• Must select appropriate tests
• APA/ABA urge: “functional
assessments that describe taskspecific deficits”
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Evaluation Problems
• Many clinicians not trained to test
functional & cognitive ability
• Testing that is too brief or crude
• Using the wrong measures
• Relying upon false data
• Language/communication barriers
• Testing client in crisis or distress
• Global conclusions from limited data
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Natural Assessment
• Observe, interview, interact
• Observation and open-ended
questions best practice
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Natural Opportunities
• Observe person & environment
• Does appearance suggest A&O?
• Clues in client’s environment
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Natural Opportunities
• Gentle, non-threatening conversation
• Can client converse?
– Understand what is said
– Process & hold thoughts
– Formulate responsive answers
• Assess memory through asking history
• Use environmental clues
– Photos, hobbies, abilities, needs, habits
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Other Opportunities
• Client sign & date forms
• Observe client do task
– Are steps planned?
– Is behavior meaningful?
– Is desired goal reached?
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Questions When Tests Used
• Is tool validated, normed,
standarized, acceptable measure?
• Is tester qualified, trained &
experienced to administer & score
this test, authorized to use?
• Is tester in a role in which testing is
appropriate?
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Testing Questions Con’t
• Is elder in situation in which he/she
can perform up to ability?
• Has tester built rapport, used
conversation to engage and assess,
obtained background info &
permission to test?
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Testing Questions Con’t
• Has effective communication been
established between tester & elder?
• Is there clear purpose & reason for
the test?
• How will the results be used?
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Summary
• Use great caution in drawing
conclusions re: mental capacity
• Consider:
– Conditions under which capacity tested
– How tested
– Possible ulterior motives
• Assess at multiple times, use
multiple methods
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Do
• Observe & document client statements,
appearance, behaviors, environment,
abilities
• Avoid rash conclusions
• Avoid statements re: cause of problems
• When capacity in question, seek quality
formal evaluation
• Advocate for clients unfairly judged
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Thank you!
• And Good Luck in serving elders!
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