Adult Capacity

and

Decision-making Act Assessing Capacity

THURSDAY, JANUARY 24, 2019

JEANNE DESVEAUX

Disclosure Statement

Conflict of Interest Declaration Disclosure Statement

I have an affiliation with the Alzheimer Society of Nova Scotia and I am a member (legal representative)

of the Nova Scotia Health Authority Research Ethics Board.

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Learning Objectives

Understanding of the Adult Capacity and Decision-making Act

Better understanding of competency (legal) and capacity (medical)

Identify what is being asked of you the physician in completing an assessment

Identify the sort of situations that may erode capacity

Identify how we can accommodate mental disability/disorder in order to support capacity to instruct counsel/provide consent

Identify how we can ensure that the patient’s capabilities are adequately supported so that they have the best opportunity for demonstrating capacity

AND how can you fit this request into your already busy practice?

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Why was a new law necessary?

The new law replaces Nova Scotia’s Incompetent Persons Act, which allowed the court to appoint a guardian for an adult. A guardian (by Court Order) made all decisions for the adult whether the adult had the ability to decide a matter (or some matters) or not.

There is now a concept of a continuum of competence

Least restrictive measures

The Incompetent Persons Act (the old law)offended the Canadian Charter.

Information about the Adult Capacity and Decision-making Act at novascotia.ca/just/pto/adult-capacity-decision.asp (as noted in reference section)

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Capacity Assessments:

If an application for representation is being made, the adult’s ability to make decisions must be assessed

by a professionally qualified capacity assessor.

The assessor prepares a capacity assessment report, which includes the capacity assessor’s determination

whether the adult is unable to make decisions in one or more areas. Capacity assessments can be carried

out by:

medical doctors (Family Physicians)

psychologists

occupational therapists certified to carry out capacity assessments (with training)

registered nurses certified to carry out capacity assessments (with training)

social workers certified to carry out capacity assessments (with training)

A person applying for a representation order may be eligible for financial assistance to help pay for some

or all of the costs of a capacity assessment if they can show that it would be a financial hardship for the

adult or themselves to pay for it. If deemed eligible, Government will pay a maximum of $500 (assessment

for personal care or financial matters), or $700 (assessment of both personal care and financial matters).

For more information, contact the Office of the Public Trustee Office.

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Competence vs Capacity

The terms are generally used interchangeably –in the literature and

sometimes in medical reports and case law (so read with caution)

This is unfortunate because two concepts are present:

Competence: The ability to function in a rational and purposeful way – a legal

concept

Capacity: The specific ability to perform particular transactions/tasks – a clinical/medical concept

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Different domains

of capacity & competency

In healthcare

medical treatment (Consent to treatment/participate in research)

Personal Care (make one own decision about accepting services,

where they will reside)

Financial attending to one’s own financial affairs, manage banking

activities)

In the legal realm

Testamentary capacity, POA & PD

Fitness to stand trial

Criminally Responsibility

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Medical/Legal

Clinical models of capacity are strikingly similar to the legal models of

competency so…

If you hear hoof beats think horses not zebras

Note: The old legislation did not always recognize task specific-it was an all or

nothing approach…you are either “competent’’ or not –full stop!

That is not the reality as many individuals can perform many functions and tasks

independently. The new legislation recognizes this.

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Starting point FOR LAWYERS

Everyone is assumed to be competent

Unless they have been declared incompetent by a court (a Justice of the Supreme Court of

Nova Scotia). It is no longer in some cases going to be total incompetency.

In the legal context -The person entrusted to determine competency is the lawyer being

instructed by the client.

Even in those office situations many lawyers seek confirmation from a physician.

Much will depend on how much quality (not quantity) time the lawyer spends with the client

as hopefully the lawyer will have the some insight into the person’s thought processes and

reasoning (recommendation for lawyers is to take detailed notes)

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COMPETENCY

Basic principles for the practitioner (legal and medical):

FIRST: We need to satisfy ourselves that:

The Client has the ability to understand (comprehend)

AND

The Client has the ability to appreciate (recognize the value, options, consequences)

We do not determine that by what our client merely tells us

We determine that by engaging in a discussion (conversation) with our client (and this takes time)

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THE ABILITY TO UNDERSTAND

FOCUSES ON ACTUAL FACTUAL KNOWLEDGE AND PROBLEM SOLVING ABILITY

Example: a client wishes to change or make a new Power of Attorney

Do we have factual knowledge of the client’s situation?

We need to pay careful attention as the client expresses their reasons behind the decision

– problem solving ability – the decision to change the power of attorney is based on a

change in circumstances/relationships (example: death of a spouse)

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Question

A family member of your patient, Mr A, ask you for a letter stating that Mr A

needs a power of attorney. She wants to take the letter to a lawyer who has

agreed to draft the power of attorney.

What should you do?

A say “No”

B suggest the father ask you himself

C suggest the lawyer send you a letter explaining why this is necessary with

patient consent enclosed

D do it.

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THE ABILITY TO APPRECIATE

APPRECIATION FOCUSES ON THE REASONING PROCESS

Ask yourself: Does the patient/client understand the information provided relevant to the decision to be made in their particular circumstances?

Ask yourself: Does your patient/client have a realistic appraisal of the outcomes of the choices/options in that they can justify the choice they make?

E.g. their choice of attorney (Sometimes they are choosing between two evils)

Note: The danger here is if they have a progressive illness-they may not be able to undo the ill planed choice!

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Assessing Competence

The caution for lawyers is that we cannot rely on someone else’s information we must interview our client ourselves.

Diagnosis – alone meaningless (we are not physicians)

Cognitive scores such as MMSE – unhelpful (e.g. clock)

Obtain collateral information when possible

We need to ask open ended questions. We need to know the

answer to the question before we ask it.

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Decisional Capacity

Decisional capacity includes at least four components:

understanding information relevant to the decision

appreciating the information (applying the information to

one’s own situation)

using the information in reasoning

and expressing a consistent choice

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Can capacity be improved?

Usually not, but understanding of the individual and their

condition (if one is present) can help us to help them.

Seek if possible background information-education, cultural,

family, employment history

General understanding of the specific medical

condition/disability that is interfering with the solicitor-client

relationship (making the taking of instructions challenging)

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Questions to consider:

What is the purpose of the decision?

What are the risks? (and to whom- our client/patient? Their family? )

What are the benefits? (and to whom?)

What can we do to accommodate in order to support capacity?

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Diminished capacity /Cognitive

function

There is no magic marker (no line in the sand)

Consider the red flags

Memory loss

Communication problems

Disorientation

Medication

Confusion

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Is it really incompetency?

Remember: Competency is a legal not a medical test

Is it- Age related memory impairment? e.g. unable to find your keys, impaired short term memory

- or is there the involvement of a permanent irreversible progressive, medical condition- permanent incapacity?

-is it delirium?- temporary incapacity a condition that is sometimes reversible-often noted after surgery (and frequently escalating any underlying dementia), URI or UTI……

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What sort of situations may erode

capacity/competency?

Medical conditions left untreated –for example -medication can assist in

psychiatric conditions –so we meet with the client (or patient) after the

medication has stabilized the condition

- dehydration and unstable diabetes can cause difficulty (frequently)

Medication –meet with the client (patient) at a time appropriate (not sedated)

Abuse- threats, stress- Is there cause for concern?

Dementia? (maybe not late in the day if sundowning is an issue)

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Question?

How can we ensure that the individual’s capabilities are

adequately supported so that he/she has the best chance at

demonstrating capacity?

See Assessment Report Sections 5 & 6

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Issues for concern

You are asked to complete an assessment for a new patient

Option not to complete the assessment until a full workup is completed to

deal with matters such as polypharmacy or conditions that were left

untreated for a number of months or years.

Grief

Depression

Abuse

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Environmental approach- to address sensory deprivation

Adequate lighting

Accessible offices (chairs with arms)

Large font side

Control background noise

Literacy (read the material)

THESE ARE REALLY COMMON SENSE APPROACHES

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True or False

The presence of dementia means an inability to

consent (True or false)?

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Answer: False

The presence of dementia, or a mental illness does not mean an inability

to consent to medical treatment or the inability to instruct counsel

It does means that it places a greater burden on the physician to ensure

that the patient truly giving informed consent.

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Remember

Different dementias will present differently in the early stages

Alzheimer’s disease – learning and retaining information

Vascular dementia – using that information to make a decision

Frontal lobe dementia – appreciating the consequences

They have similar effects in late stages

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Emerging areas of concern

When conditions that impair judgment are present–

Believe that they can live independently

Believe they can drive

Complaint from physicians – the lawyer did not ask the right questions!

Complaint from lawyers- the physician did not ask the right questions!

Aging Society-

Challenges of dealing with this particular population

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How can the Physician Maximize

function?

• Address hearing and vision

• Reduce sedating medications

• Control mood and anxiety

• Control pain and other symptoms

• Calm, quiet, private room with lots of time for information sharing

• Provide information in different modalities (written, verbal,

diagrams)

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How can the lawyer maximize

Competency?

Environmental approach- to address sensory deprivation

Adequate lighting

Accessible offices (chairs with arms)

Large font side

Control background noise

Literacy (read the material)

THESE ARE REALLY COMMON SENSE APPROACHES

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How a physician assesses capacity-in

a nut shell?

Decision-specific (what needs to be decided?) sample: driving

Respect

Information-sharing (with consent- “circle of care”)

Participation -involve the patient

Collaboration (other disciplines) refer to OT for example

Repeat information and ask same questions a few times

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Key concepts

Decisional capacity includes:

understanding information relevant to the decision

appreciating the information (applying the information to

one’s own situation)

using the information in reasoning

and expressing a consistent choice (value of asking the same

question a number of different ways).

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Plan of Action-the process

• Determine the question

• Determine the nature, extent, cause and contributors of cognitive impairment

• Try to determine the living situation and goals of the person, as well as their values and

past patterns of behaviour

• Ask direct questions recording answers verbatim

– Compare answers to objective data as much as possible

• Provide information

• Repeat the questions

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Summary

The Adult Capacity and Decision-making Act allows

for a variety of options as the patient may be able to

decide some matters safely, may require supportive

decision-making for some area and not be permitted

to make some decisions.

Identify what is being asked of you the physician

Identify how we can ensure that your patient’s

capabilities are adequately supported so that

he/she has the best chance at demonstrating

capacity

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Sample Statements

1. I have personal knowledge of the evidence sworn to in this affidavit except where otherwise stated to be based on information or belief.

2. I state, in this affidavit the source of any information that is not based on my own personal knowledge and I state my belief of the source.

3. I am a duly licensed medical doctor, with a license to practice medicine in the province of Nova Scotia and I practice as a __________________

(Family Physician, Geriatrician Geriatric Psychiatrist).

4. I was asked to provide an assessment of Jack Doe.

5. Jack Doe (hereinafter “Jack”) has been a patient under my medical care since December 26, 2017.

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Sample statements

6. I assessed Jack on January 7, 2019 at his residence and the Declaration of Competency (Form C) along with Form 1 (Assessment of Capacity to make Decisions about a Personal Care Matter) is attached [Exhibit “A”] to this my Affidavit. (optional if available)

7. Jack has vascular dementia with significant cognitive and functional impairment.

8. Jack lacks knowledge of finances and lacks insight into his need for assistance.

9. Jack is incapable of caring for himself and living independently.

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RESOURCES

Nova Scotia Government Web-site: novascotia.ca/just/pto/adult-

capacity-decision.asp

And you can find the form for a capacity assessment report and

representation plan on the Public Trustee’s website: novascotia.ca/just/pto/forms.asp under Adult Capacity and Decision-

making.Capacity and Decision-making.

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References & Resources

ASSESSMENT OF OLDER ADULTS WITH DIMINISHED CAPACITY: A

HANDBOOK FOR LAWYERS (American Bar Association Commission on

Law and Aging) available online

Nova Scotia Health Authority –Services-Seniors Mental Health –Resources

–Toolkit (Seniors Mental Health Assessment Tool Kit) this can be down-

loaded (Physicians)

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