Myths about Decisional Capacity
Cynthia M.A. Geppert, M.D., Ph.D.,M.P.H.
Chief Consultation-Liaison and Ethics New Mexico
Veterans Affairs Health Care System
Competence is Capacity
 Competence is a legal term. Decisional capacity
is a clinical designation.
 Only a judge or other officer of the court can
declared someone incompetent.
 Generally the determination of competence is
made on the basis of a clinician’s assessment of
a patient’s decisional capacity.
Surrogate Myths
 If a patient lacks decisional capacity, a court order
appointing a surrogate must be obtained before
the patient can be treated.
 Only a spouse for an adult or the parent of a child
can serve as a surrogate decision maker.
 Surrogates accurately predict the preferences of
patients.
Only a psychiatrist can determine
decisional capacity
 Any physician can make an assessment of a
patient’s decisional capacity.
 The primary physician is the first choice for
making the assessment.
 Psychiatrists and psychologists have no special
legal standing to determine “competence.”
 Mental health professionals should be consulted
on the assessment of capacity only when there is
evidence of a mental disorder.
A person who is psychotic or
demented cannot be capable
 Numerous studies demonstrate that psychiatric
illness impacts aspects of decisional capacity.
 Severely disorganized and demented patients will
generally lack meaningful decisional capacity.
 Moderately demented and actively psychotic
patients are not a priori decisionally incapable.
 Research shows that psychiatric patients can
exercise decisional capacity and that their ability
can be enhanced.
Decisional Capacity is an all or none
phenomena
 Decisional capacity is a spectrum of ability.
 A patient may be unable to make financial
decisions and be able to make medical
ones.
 Decisional capacity may fluctuate with the
course of illness, treatment, nature of the
decision and available social support.
 Thus assessments of decisional capacity
also need to be ongoing processes.
The components of decisional
capacity
 The ability to
communicate.
 A patient is able
through verbal or nonverbal means to
express his wishes.
 Very sensitive to
education, culture and
language.
 A patient with lockedin syndrome blinks his
eyes in response to
questions regarding
continuation of life
support.
The capacity to comprehend
 The ability to
understand the
information presented
such as the nature,
risks,benefits,
alternatives to and
outcome of of a
proposed
intervention.
 An anxious patient
being consented for
cardiac surgery is
able to repeat the
information the
clinician explains in
his own words.
The capacity to reason
 The ability to
rationally manipulate
the facts given and
arrive at a logical
conclusion. The
“Spock criterion.”
 A schizophrenic
patient with delusions
of persecution is able
to tell an investigator
that he would rather
receive a medication
that is effective 85%
of the time than one
that works 15% of the
time.
The capacity to Appreciate
 The ability to make
authentic choices
which reflect one’s life
history, culture,
religion, values and
prior significant
decisions.
 A 55 year-old woman
who has been a
devout Christian
Scientist her entire
life, refuses to see a
doctor when she
becomes jaundiced,
vomits and has
abdominal pain.
Domains of Voluntarism
Developmental Factors:
Progressive emotional and
intellectual maturity of
young people to make
medical decisions.
Illness-related
considerations:
Ambivalence & pessimism
of depression,compulsive
use & impulsive behaviors
in SUD.
Psychological Issues &
cultural and religious
values: Family autonomy in
Hispanic,Native American,
Asian cultures
External Features &
Pressures:
Relationship with caregiver;
economic burdens end of
life care.
Voluntarism: the forgotten capacity
 The ability to make
free and authentic
choices without
internal or external
coercion which
prevents or impedes
the exercise of selfdetermination.
 A veteran with posttraumatic stress
disorder refuses a
request from his
primary care
physician to
participate in a
research study.
What to do when the patient lacks
decisional capacity
 Does the patient have an advance directive
such as a Living Will or Durable Power of
Attorney for Health Care?
 Did the patient appoint a proxy or surrogate
decision maker?
 If no AD or surrogate then the following
order is utilized: spouse, adult child, parent,
adult sibling, grandparent, friend
Inaccuracy of Surrogates
 50 VA pts and their surrogates given
questionnaires describing common scenarios for
life support.
 Surrogates guessed pts answers.
 59.3% of time surrogates accurately guessed pts
wishes Not better than chance.
 Only accurate predictor of decision making was
prior discussion of wishes.
 Suhl. Arch Intern Med. (1994)
Surrogates
 Substituted judgment standard is now the
preferred method of surrogate decision
making.
 If there is no knowledge of patient
preferences or values, then best-interests
standard is used. “What a reasonable
person would want done in the situation.”
Informed Consent
 A legal and ethical doctrine that states individuals
understand proposed research or clinical
intervention and freely choose to participate.
 Rooted in the philosophical doctrine of respect for
persons and autonomy.
 For true informed consent, decisional capacity is
necessary or a surrogate decision maker.
 The following information should be explained to
the pt in a comprehensible manner.
Elements of Informed Consent
 The diagnosis and prognosis with and
without treatment.
 The nature of the proposed intervention.
 The risks and benefits of the proposed
intervention.
 The alternatives and outcomes including
NO treatment.
What Informed Consent Is and Is
Not
 Not the mere signing of a form.
 Not a one time procedure
 Not a primarily legal matter
 An ongoing process
 A dialogue involving both verbal and written
information.
 A clinical decision that is an integral expression of
the physician-patient relationship.
Medical Conditions that can
Influence Informed Consent
Pain
Fatigue
Medications
Intensive care
environment
 A 64 yo male with
colon cancer is
approached about
participation in clinical
research trial. He is
heavily sedated with
morphine and is
status/post
colectomy.
Neuropsychiatric Conditions that
can Influence Informed Consent




Delirium
Dementia
Cognitive disorders
Developmental
Disabilities
 A 65 yo man with a
brain abscess goes
back and forth about
consenting to
neurosurgery. At
points he is lucid and
cooperative and
others combative and
distracted.
Psychiatric Conditions that can
Influence Informed Consent





Substance Abuse
OCD
GAD
Panic
PTSD
 A career Army
sergeant is
approached by the
Chief of Cardiology
and told he needs a
cardiac
catheterization. The
patient says, “Yes Sir,
whatever you say sir.
Psychiatric Conditions cont.




Depression
Schizophrenia
Manic Depression
Somatoform
Disorders
 Factitious Disorders
 Personality Disorders
 While manic, a 32 year
old woman crashes
her car and sustains
facial trauma. Two
weeks after the
accident she is
depressed and refuses
reconstructive surgery,
saying she must be
punished for her sins.
Psychosocial Situations that can
Influence Informed Consent






Bereavement
Abuse
Poverty
Criminal charges
Pregnancy
Minor children
 6 months after a 78 yo
woman looses her
husband of 54 years,
she finds a lump in her
breast. She keeps
putting off making an
appointment because
she is overwhelmed
with trying to cope
without him.
Cultural Situations that can
Influence Informed Consent




Religious preferences
Language barriers
Cultural attitudes
Education
 A 45 yo father of 5
ruptures his spleen in
a fall at home. He is a
Jehovah’s Witness
and refuses
transfusion because
of his beliefs, but will
accept bloodless
surgery.
Problems that Mimic Informed
Consent Issues
 Patient-staff conflict
 Communication
problems
 Family conflicts and
pressures
 Transference and
Counter-transference
 Nursing staff
overhears a patient’s
wife and older son
telling him “it is time to
let go and to think
about how you are
burdening the family.”
The pt then requests
removal of life-support.
Informed Refusal
 The sliding scale standard of competence:
 As risk of an intervention increases and/or
benefits decrease, then the standard of
decisional capacity is raised
correspondingly.
 A lower-risk procedure thus requires a less
demanding standard of decisional
capacity.
Sliding Scale of Informed Refusal
 HIGH-RISK
 A 22-year old man
with Schizophrenia
refuses an
emergency
appendectomy
because he thinks his
abdominal pain is the
result of eating too
much peanut butter.
 LOW-RISK
 A 34 year old woman
with borderline
personality disorder
complaining of
insomnia, refuses a
prescription for
Trazadone because
she is angry at the
doctor.
How to Facilitate Informed Consent.
 The Bad News
 Studies have documented problems with
every aspect of the informed consent
process in healthy and medically ill
patients.
 These problems are only compounded with
psychiatric patients.
How to Facilitate Informed Consent
 The Good News
 Studies also show that the process of informed
consent can be improved in healthy, medically ill
AND psychiatric patients. Through:
 Education
 Use of audio-visual materials
 Providing ongoing opportunities for pts to discuss
consent.
Confidentiality
 Sensitive information revealed within the
MD-Pt relationship is not disclosed without
the pt’s consent or legal exceptions.
 Rooted in the ethical doctrine of autonomy,
fiduciary nature of MD-Pt relationship and
the legal right to privacy.
Exceptions to Confidentiality
 STDs
 Child abuse
 Elder (noncompetent) abuse
 Sexual partners of
HIV+ who refuse to
notify in some states.
 Suicidality
 Homicidality: Tarasoff
I & II. California
1980s. Duty to warn
and duty to protect
identifiable victim.
 Call victim,
authorities,
hospitalize, medicate.
Consultation Hints
Find out the core of the consultation request
Talk to the Nurses and staff to get their
view.
See if there are social work issues that are
contributing.
Explore the family dynamics and meet with
the family of significant others if this would
be helpful.
Consultation Hints
 Check the patient’s MSE carefully.
 Check to see if pain control is adequate
and if sedation is excessive.
 Call a Chaplain and not just if the issue is
religious.
 Finally and most overlooked. Talk to the
patient.