Transcript No Slide Title

MANAGING ASSETS
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FORENSIC ASPECTS GERO PSYCHIATRY
Howard H. Fenn, MD
Associate Clinical Professor , Stanford University
Medical Director, Acute Geropsychiatry Unit
Palo Alto Veterans Affairs Medical Center
[email protected]
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FORENSIC ASPECTS of GEROPSYCHIATRY
o Competency overview
o Assessment of competency
o Specific competencies in geriatric patients
o Other:
Elder Abuse
Personal injury and malpractice
End of life issues
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TOP 10 REASONS PHYSICIANS SUED
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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
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PREVALENCE of DECISIONAL IMPAIRMENT
o Diagnosis of dementia by itself does not determine
incapacity
o 80-90% of mild-to-moderate Alzheimer’s
patients are decisionally impaired
o 44%, 45%, 67%, 69% of nursing home patients are
decisionally impaired
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CATEGORIES of INCOMPETENCE
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Category
Judicial (de Jure)
De Facto
Informal
Retrospective
Setting
court
court-ordered
clinical settings
after an act
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4 “D”s of De JURE INCOMPENTENCE
o Diagnosis: not sufficient
o Deficit (psychiatric) & lack of function
o Defined by code
o Decision-making ability (specific)
--1995: California (DPCDA)
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PROCESS of ASSESSMENT
o
Orthopedist examines injured player’s abilities
=competence evaluation
o
Team orthopedist determines capacity to perform
=de facto competence determination
o
NHL officials set rules for scoring =Legal code
Referee decides if goal made =de Jure
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ASSESSMENT INSTRUMENTS
o MacArthur Competence Assessment tool (MacCAT)
(Grisso et al, 1997)
o Hopkins Competency Assessment Test
(Janofsky et al, 1992)
o Mini-Mental State Exam
(Molloy et al 1996)
Kim SYH et al., 2000
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ASSESSMENT of DECISIONAL CAPACITY
o A forgetful physician was fretting:
o “Maybe Dx is a DAT* I am getting.”
o Her recall declined, whereupon she opined,
o “I forgot what I found so upsetting.”
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TESTS of CAPACITY for MEDICAL TREATMENT
o Evidencing a treatment choice
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(LS1)
Making a reasonable treatment choice (LS2)
Appreciating consequences of choice (LS3)
Providing rational reasons for choice (LS4)
Understanding treatment situation
(LS5)
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EVIDENCE a CHOICE (LS1)
o Normal
100% competent
o Mild AD
87% competent
o Moderate AD 79% competent
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APPRECIATE the CONSEQUENCES (LS3)
o Normal
o Mild AD
o Moderate AD
93% competent
52% competent
36% competent
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UNDERSTAND TREATMENT SITUATION and
CHOICES (LS5)
o Normal (MMSE >24)
100% competent
o Mild AD (MMSE 20-23)
0% competent
o Moderate AD (MMSE 9-19) 0% competent
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ASSESSMENT of COMPETENCE by PHYSICIANS
o Physicians did NOT agree in mild AD
o Physicians agreed in cognitively intact
o Highest agreement--least stringent standards
o Competency assessment instruments enhance
judgment of competency
--Marson et al., 1996_
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PREDICTORS of DECISIONAL IMPAIRMENT in AD
o Auditory comprehension predicted LS 1
o Word fluency
o Conceptualization
o Confrontational naming
predicted LS3
predicted LS5
predicted LS5
o --Marson et al. 1996
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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
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DEFICIT+LACK OF FUNCTION
o 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
o
--Sec. 811 Probate Code
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CAPACITY= COMMUNICATE
o The rights duties and responsibilities created by, or
affected by the decision
o The probable consequences for the decision maker
and, where appropriate, the persons affected by the
decision
o The significant risks, benefits, and reasonable
alternatives involved in the decision.
SEC 812 PROBATE CODE
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SPECIFIC COMPETENCIES
o Provide food, clothing, shelter
Refuse psychotropic meds
Manage assets
Informed consent--medical
Informed consent-dementia Rx
Execute a will
Advance Directive
Informed consent for ECT
For research
sec. 5250 W&I
sec. 5332 W&I
sec. 812 PROBATE
sec. 813 PROBATE
sec. 2356.5 PROBATE
sec. 6100.5 W&I
sec. 4609 PROBATE
sec. 5352 W&I CODE
sec. 24178 H&S CODE
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CAPACITY--REFUSE PSYCHOTROPICS
o Riese v. St. Mary's Hospital 243 Cal Rptr 241 (Cal
App. 1 Dist l987)
o Able to participate in treatment decision by means of
rational thought processes.
o In absence of a clear link between patient's
delusional or hallucinatory perceptions and his
ultimate decision to consent or refuse treatment,
court should assume that patient is utilizing
rational modes of thought.
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CONSERVATORSHIP DISTINCTIONS
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Mental Health / LPS
Treatment as goal
Involuntary commitment
Beyond reasonable
doubt
Grave disability +
mental illness
Reviewed yearly
Mental health
professional
o
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Probate
Estate as goal
No civil commitment
Clear and convincing
Financial incompetence
and/or dementia
Reviewed every 2 years
Petitioner: anyone
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CONSENT-MEDICAL TREATMENT
o 1. Respond knowingly and intelligently to queries
about that medical treatment
o 2. Participate in that treatment decision by means of
a rational thought process
o 3. Understand all of the following terms of minimum
basic medical treatment information with respect to...
treatment:
sec. 812 and sec. 813 Probate Code
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TESTAMENTARY CAPACITY
o An individual is not mentally competent to make a will
if at the time of making the will either of the following
is true:
o A) cannot understand the nature of the testamentary
act
o B) cannot understand and recollect the nature and
situation of the individual’s property, or
o C) 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)
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ECT
o No convulsive treatment as defined in Section 5325
of the Welfare and Institutions Code may be
performed on a ward or conservatee under this
division.
o Affective indications of incompetence: Pessimism,
hopelessness, helplessness, giving up, and
worthlessness
o Cognition may remain intact
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CAPACITY TO CONTRACT
o A person entirely without understanding has no
power to make a contract of any kind—CC 38
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COMPETENCE TO STAND TRIAL
o A defendant is mentally incompetent for purposes of this chapter
if, as a result of mental disorder, he/she is unable to understand
the nature and purpose of the proceedings taken against
him/her and to assist counsel in the conduct of a defense in a
rational manner.”
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DURABLE POWER of ATTORNEY for HEALTH CARE
o Capacity to contract
o Attorney-in-fact makes substituted judgment
o Attorney-in-fact cannot consent to civil commitment,
ECT, psychosurgery, sterilization, abortion
o Principal’s assent required for end of life treatment
o -- Sec. 4724 Probate Code
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ADVANCE DIRECTIVE
Informed consent
Treatment now
Capacity now
No trigger
Actual choice
No choice=a choice
Advance Directive
Treatment in future
Capacity in future
Trigger: incapacity
Hypothetical choice
Can always choose
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INABILITY OF CONSERVATEE TO GIVE INFORMED
CONSENT; JUDICIAL DETERMINATION
o “the court may take into consideration the frequency,
severity, and duration of periods of impairment.”
--(Sec.1890)
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WILLS & TRUSTS
o Sec.6100.5 Probate Code
o 1)The individual does not have sufficient mental
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capacity to be able to
A)understand the nature of the testamentary act
B) understand and recollect the nature and situation
of the individual’s property , or
C)remember and understant the individual’s relations
to living decendants, spouse, and parents…
2) The individual suffers from a mental disorder with
symptoms including delusions or hallucinations,
which delusions or hallucinations result in the
idnvidual’s devising property in a way which, except
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DEFICITS in MENTAL FUNCTIONS (SEC.811
PROBATE CODE)
o Alertness and attention, including level or arousal or
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consciousness
Ability to attend and concentrate
Orientation to time, place, person, and situation
Information processing, including short-and long-term memory
Ability to understand or communicate with others, either verbally
or otherwise
Recognition of familiar objects and familiar persons
Ability to understand and appreciate quantitities
Ability to reason using abstract concepts
Ability to plan organize, and carry out actions in one’s own
rational interest
Ability to reason logically
Thought processes. Deficits: severely disorganized thinking,
hallucinations, delusions, uncontrollable, repetitive or intrusive
thoughts, ability to modulate mood and affect.
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CLINICAL vs. LEGAL CAPACITY
o CLINICAL STANDARDS
o PROBATE CODE Sec. 813
o Evidencing a treatment
o Respond knowingly and
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choice
Making a reasonable
treatment choice
Appreciating consequences
of choice
Providing rational reasons
for choice
Understanding treatment
situation
intelligently to queries about
that medical treatment
o Participate in that treatment
decision by means of a
rational thought process
o Understand all…minimum
basic medical treatment
information with respect to...
treatment:
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DEMENTIA POWERS
o The conservatee has dementia...
o
…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—
o Section 2356.5 of Probate Code
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TO BOLSTER COMPETENCE
o Present information piece-meal
o Try-out research project
o Bypass deficit with written memory aids
o Target symptoms with medications (33%-40% with
AD have psychotic symptoms)
o Rx with Anticholinesterase inhibitors
o Rx with Memantine when available
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INCOMPETENT to MAKE A WILL if
o cannot understand nature of the testamentary act
o cannot understand and recollect the nature and
situation of the individual’s property, or
o 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)
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UNDUE INFLUENCE
o “Will replaced by that of another”
o “Coercion or compulsion” not required
o Facts establish a presumption
o Opportunity
(access, dependency, control)
o Motive
(Influencer to benefit)
o Naturalness
(relatives favored)
o Susceptibility
(“weakness of mind”)
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FORENSIC GEROPSYCHIATRY SUMMARY
o Decision-making capacity is central
o Competency Codes consistent with psychiatric
o de Jure incompetence:
o Diagnosis not sufficient
o Deficit+loss of function
o Defined by code
o Decision-specific
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