Transcript GERIATRIC PSYCHIATRY & LAW

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.”
7/2/2009
HHFENN, MD
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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
7/2/2009
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TOP 10 REASONS
PHYSICIANS SUED
Informed consent not obtained/documented
 Informed refusal not obtained
 Weak, undocumented patient education
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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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LEGAL-GERIATRIC
PSYCHIATRY:
CAPACITY
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Definitions
Philosophy and background
Specific competencies: the code
Informed consent
Assessment
Testamentary capacity
Advance directives
Elder Abuse
Undue Influence HHFENN, MD
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DEFINITIONS
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Capacity
 Competence
 Specific competence
 Simple consent
 Informed consent
 Decisional impairment
 Informed refusal
 Testamentary capacity
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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
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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.”
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CATEGORIES of
CAPACITY
DETERMINATION
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De Jure:
 De Facto:
 Informal:
 Retrospective:
adjudicated in formal hearing
court-ordered expert evaluation
for clinical treatment
prompted by litigation
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4 “D”s of De JURE
INCAPACITY
o
Diagnosis: not sufficient
o
Deficit (psychiatric) & lack of function
Defined by code
Decision-making ability (specific)
o
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--1995: California (DPCDA)
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DUE PROCESS IN
COMPETENCY
DETERMINATIONS
ACT (DPCDA—1995)
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Sections 810-814 California Probate Code
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Determination of lack of mental capacity
must be supported by evidence of deficit in
at least one specific mental function
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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 11-HHFENN, MD
PROBATE CODE
SECTION 810 (2005)
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(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 12
HHFENN, MD
SPECIFIC
COMPETENCIES
Provide food, clothing, shelter
Refuse psychotropic meds
Manage assets
Informed consent--medical
Informed consent/conservatee
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. 1890 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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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,
HHFENN, MDeuphoria, anger, anxiety,
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fear, panic…
COMPETENCE
is the CAPACITY to:
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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
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CONSENT to MEDICAL
TREATMENT
sec. 812-813 Probate Code
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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 HHFENN,
respect
to... treatment: 16
7/2/2009
MD
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
MD
informed consent HHFENN,
for any
form of medical 17
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) cause of 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)
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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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INFORMED CONSENT
DEFINITIONS
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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
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INFORMED CONSENT:
REQUIRED ELEMENTS
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A decision
 Information and Understanding
 Voluntariness: autonomy
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ELDER ABUSE:
DEFINITIONS
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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
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ELDER ABUSE
Secs. 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.
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th
4 181)
ELDER ABUSE
No “blanket exclusion” from the Elder Abuse
Act for health care practitioners
--Delaney v. Baker
59 Cal.App.4th 1403 (1997)
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ELDER ABUSE:
IDENTIFICATION
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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.
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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.
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TESTAMENTARY
CAPACITY
Estate of Jenks (1971)
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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…”
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TESTAMENTARY
CAPACITY
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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
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affected codicil. HHFENN, MD
INCOMPETENT to
MAKE A WILL if
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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)
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CAPACITY for an
ADVANCE DIRECTIVE
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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
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INFORMED REFUSAL:
TRUMAN V. THOMAS
165 CAL. REPORTER
[1980]
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Wrongful death suit brought by children
Because Dr. Thomas failed to perform pap
smear on mother, who died.
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PREVALENCE of
DECISIONAL
IMPAIRMENT
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Diagnosis of dementia by itself does not
determine incapacity
 80-90% of mild-to-moderate Alzheimer’s
patients are decisionally impaired
 44%, 45%, 67%, 69% of nursing home
patients are decisionally impaired
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UNDUE INFLUENCE
Individual’s will replaced by that of another
 Coercion or complusion is not required but often
present in testamentary context
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Facts establish a presumption of
-Opportunity (access, dependency, control,
confidential relationship)
-Motive (benefit to influencer)
-Naturalness (relatives favored)
-Susceptibility
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UNDUE INFLUENCE
SEC. 1575 CIVIL CODE
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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.
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UNDERSTAND
TREATMENT
SITUATION and
CHOICES (LS5)
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Normal (MMSE >24) 100% competent
 Mild AD (MMSE 20-23)
0% competent
 Moderate AD (MMSE 9-19) 0% competent
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CAPACITY=
COMMUNICATE
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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
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CAPACITY to REFUSE
Riese v. St. Mary's
Hospital 243 Cal Rptr 241
(Cal App. 1 Dist l987)
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Able to participate in treatment decision
by means of rational thought processes.
 In absence of a clear link between
patient's delusional or hallucinatory
HHFENN,
MD
perceptions and his
ultimate
decision to 37
CONSERVATORSHIPS
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
HHFENN, MD Petitioner: anyone
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2009
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TESTS of CAPACITY
to GIVE INFORMED
CONSENT
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Evidencing a treatment choice
 Making a reasonable treatment choice
 Appreciating consequences of choice
 Providing rational reasons for choice
 Understanding treatment situation
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HHFENN, MD
(LS1)
(LS2)
(LS3)
(LS4)
(LS5)
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DECISIONAL
IMPAIRMENT
ASSESSMENT
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MacArthur Competence Assessment tool
(MacCAT) (Grisso et al, 1997)
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Hopkins Competency Assessment Test
(Janofsky et al, 1992)
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Mini-Mental State Exam
(Molloy et al 1996)
Kim SYH et al., 2000
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CLINICAL vs.
LEGAL CAPACITY
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
HHFENN, MDinformation with respect 42
to... treatment:
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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
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HHFENN, MD
=de Jure
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DEMENTIA POWERS
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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—
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Section 2356.5 of Probate Code
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HHFENN, MD
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COGNITIVE DOMAINS
PREDICTIVE of
DECISIONAL
IMPAIRMENT in AD
Auditory comprehension LS 1
 Word fluency
LS3
 Conceptualization
 LS5
 Confrontational naming LS5
--Marson et al. 1996
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FORENSIC
GEROPSYCHIATRY
SUMMARY
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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
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TO BOLSTER
COMPETENCE
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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
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The Three C’s of Geriatric
Psychiatry

Competence
 Capacity
 Consent
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