Legal Considerations in Cognitive Disorders

Capacity vs. Competency

• Clinical vs. Legal term that denotes the ability to make rational and reasonably well informed decisions by a particular patient (vs. person) in their treatment and/or life decision/s.

• Capacity is a clinical determination that addresses the integrity of mental functions.

• Competency is a legal determination that addresses societal interest in restricting a person’s right to make decisions or do acts because of incapacity.

Valid Informed Consent

Permission voluntarily given by a competent person without any elements of force, deceit, coercion after explanation and disclosure of:

1. Purpose and details of procedure or treatment
2. Risks, Benefits and available alternative treatment/s
3. The right to withdrawal consent verbally or in written forms at anytime

Exceptions

• Life threatening situation
• Patient who waive their rights to disclose and consent (do not want to be informed)
• Instances where “disclosure” may be harmful to the patient “Therapeutic privileges”

Rules of Capacity

• Being mentally ill doesn’t in itself imply a loss of capacity or competency.

• Having Capacity or being Competent should be presumed until proven otherwise.

Pragmatic Approach to Address Capacity

• Risk-benefit analysis favorable and patient consents
  or
  Risk-benefit analysis unfavorable and patient refuses
  ↓

  • Low threshold/low level of certainty needed to uphold capacity
    ↓
    • No further action

• Risk-benefit analysis intermediate, regardless of whether patient consents or refuses
  ↓

  • Intermediate threshold/intermediate level of certainty needed to uphold capacity
    ↓
  • Consider reassessment of capacity and re-evaluation of patient decision, depending on the magnitude of the decision’s consequences

• Risk-benefit analysis favorable and patient refuses
  or
  Risk-benefit analysis unfavorable and patient consents
  ↓

  • High threshold/high level of certainty needed to uphold capacity
    ↓
    • Perform reassessment of capacity and re-evaluation of patient decision and consider legal intervention, depending on consequences

Steps in Mental Capacity Assessment

A.

• General perspective or specific (Psychiatric hospitalization, ECT)
• Find out the best language of communication
• Determine if patient has adequate information on which to base a decision
• MMSE: attention, concentration, memory
• Inform the patient about the nature of the disorder, AND the risk and benefit of the PROPOSED treatment, and of ALTERNATIVE treatments or of NO treatment

B.

• Repeat information number of times and in different ways.
• Let the patient paraphrase or restate the understanding.
• Evaluate nature of questions that patient asks regarding treatment plan
• Periodical Reassessment of capacity (if any change in clinical conditions or, mental status such as in delirium or any modifications in treatment plan)

C.

• If patient has “severe deficit” in understanding information→ No Capacity to make informed consent or make decision→ Arrange a process for “a substitute decision maker”

Table 1. Legally Relevant Criteria for Decision-Making Capacity and Approaches to Assessment of the Patient.

• Criterion

  • Communicate a choice

    • Patient’s Task: Clearly indicate preferred treatment option
    • Physician’s Assessment Approach: Ask patient to indicate a treatment choice
    • Questions for Clinical Assessment*:
      • Have you decided whether to follow your doctor’s [or my] recommendation for treatment?
      • Can you tell me what that decision is?
      • [No decision] What is making it hard for you to decide?
    • Comments: Frequent reversals of choice because of psychiatric or neurologic conditions may indicate lack of capacity.

  • Understand the relevant information

    • Patient’s Task: Grasp the fundamental meaning of information communicated by physician
    • Physician’s Assessment Approach: Encourage patient to paraphrase disclosed information regarding medical condition and treatment
    • Questions for Clinical Assessment*:
      • Please tell me in your own words what your doctor [or I] told you about:
        • The problem with your health now
        • The recommended treatment
        • The possible benefits and risks (or discomforts) of the treatment
        • Any alternative treatments and their risks and benefits
        • The risks and benefits of no treatment
    • Comments: Information to be understood includes nature of patient’s condition, nature and purpose of proposed treatment, possible benefits and risks of that treatment, and alternative approaches (including no treatment) and their benefits and risks.

  • Appreciate the situation and its consequences

    • Patient’s Task: Acknowledge medical condition and likely consequences of treatment options
    • Physician’s Assessment Approach: Ask patient to describe views of medical condition, proposed treatment, and likely outcomes
    • Questions for Clinical Assessment*:
      • What do you believe is wrong with your health now?
      • Do you believe that you need some kind of treatment?
      • Is treatment likely to do for you?
      • What makes you believe it will have that effect?
      • What do you believe will happen if you are not treated?
      • Why do you think your doctor has [or I have] recommended this treatment?
      • How did you decide to accept or reject the recommended treatment?
      • Was [chosen option] better than [alternative option]?
    • Comments: Courts have recognized that patients who do not acknowledge their illnesses (often referred to as “lack of insight”) cannot make valid decisions about treatment. Delusions or pathologic levels of distortion or denial are the most common causes of impairment.

  • Reason about treatment options

    • Patient’s Task: Engage in a rational process of manipulating the relevant information
    • Physician’s Assessment Approach: Ask patient to compare treatment options and consequences and to offer reasons for selection of option
    • Questions for Clinical Assessment*:
      • [Questions similar to above]
    • Comments: This criterion focuses on the process by which a decision is reached, not the outcome of the patient’s choice, since patients have the right to make “unreasonable” choices.

*Questions are adapted from Grisso and Appelbaum. Patients’ responses to these questions need not be verbal.