DECISION-MAKING CAPACITYAND NOTICE OF MENTAL ILLNESS Roberto Cruz Barahona, M.D.

Consultation-Liaison Psychiatry and Addiction Psychiatry

Laura Hosford

Clinical bioethicist

Disclosure: Roberto Cruz Barahona, MD

■ With respect to the following presentation, there has been no relevant ( direct or indirect) financial relationship between the party listed above and any for-profit company in the past 24 months which could be considered a conflict of interest.

Learning objectives:

■ Explain how DMC relates to competency , cognitive function, psychiatric disorders, and involuntary commitment

■ Decision making capacity evaluation

■ What a psychiatric hold does

■ Why holds don’t apply to medical-surgical treatment

■ Alternative response to patient who lack capacity to refuse care

1. Competency - determined by a court of law.

Legal term referring to an individual’s ability to make a specific decision regarding his or her healthcare, finances, or estate.

2. Decisional capacity - determined by a treating physician.

patient’s ability to rationally understand the nature and con- sequences of a decision, to make and communicate the decision, and in the case of proposed healthcare, the ability to understand its significant risks, benefits, and alternatives.

■ Determining decision-making capacity involves assessing the process the patient uses to make a decision, not whether the final decision is correct or wise

■ A patient who lacks the capacity to make one decision does not necessarily lack the ability to make all decisions.

■ A patient who has not received appropriate information, or who has received inconsistent information, cannot be expected to be able to make an informed decision.

Appelbaum

Communicate a choice;

1

Understand the relevant information;

2

Appreciate the situation and its consequences;

3

Rationally manipulating information.

4

Choice & Understanding: Choice:

■ Clearly indicate preferred treatment option.

– Limitations: communication issues (stroke, biPAP).

– Hearing and Vision impairment

– Language barriers

– Health Literacy

Understanding:

■ Grasps fundamental meaning of information communicated.

– Limitations: complexity of health care decisions, disparity in emotion.

Appreciation & Reasoning:

Appreciation:

■ Acknowledge medical condition and likely consequences of treatment options.

Reasoning:

■ Engage in a rational process of manipulating the relevant information.

In general:

■ Consistency;

■ Weigh risk and benefit.

Capacity:

Always assessed relative to a specific decision;

At a particular time;

In a particular context

Is generally presumed in adults.

Capacity:

Threshold concept: Consenting to a procedure or a decision that is of low risk requires a lower threshold for capacity compared with one that is high risk.

Internal rationality: a decision in accord with patient’s basic goals and values (religious beliefs). “Evaluated without evaluating the content or outcome of the decision.”

Capacity evaluation is an integral part of the informed consent process, which involves more than a patient merely signing a consent form

The 5 C’s of Decision-making Capacity

Communication

Culture

Choices

Circumstances

Consequences

Capacity and neglect:

■ “Healthcare workers requesting consults for decisional capacity are often unaware of the limitations of these assessments”

■ “Bank finances and living situation are beyond the scope of a capacity consult” (Niforatos et al.)

■ “Caregivers are often unaware that decisional capacity is decision-specific and does not include all future decisions”.

■ “self-neglect assessments are time consuming and require information from a myriad of sources, ranging from Electronic Medical Records, physician assessments and information from relatives, friends, and social workers.”

(Niforatos et al.)

Do patients with psychiatric conditions lack decision-making capacity?

■ The fact that a patient has a particular psychiatric or neurologic diagnosis does not necessarily mean that the patient lacks the capacity to make health care decisions.

■ Like all other patients, those who are involuntarily committed should be allowed to make health care decisions, except decisions for which they lack specific capacity, and should be allowed to participate in all decisions to the extent that they are able.

Cognitive vs. capacity

■ Cognition assessments are related to but distinct from capacity assessments.

■ A determination of limitations in cognitive ability does not justify a determination of lack of capacity.

■ While cognitive ability and decision-making capacity are correlated, cognitive tests should not be used as a substitute for a specific capacity assessment. Some patients who lack decision-making capacity may have high scores on the MMSE, while patients who perform poorly on the MMSE may be capable of making some health care decisions.

Tools… to look for

the presence of cognitive deficits, and to identify

changes in cognition over time:

MOCA

SLUMS

MMSE

Unfortunately, there are currently no validated test for decision making capacity

10 Myths about decision-making capacity:

■ Decision-making capacity and competency are the same;

■ Lack of decision-making capacity can be presumed when patients go against medical advice;

■ There is no need to assess decision-making capacity unless patient go against medical advice;

■ Decision-making capacity is an “all or nothing” phenomenon;

■ Cognitive impairment equals lack of decision-making;

■ Lack of decision-making capacity is a permanent condition;

■ Patients who have not been given relevant information about their treatment lack decision-making capacity;

■ all patients with certain psychiatric disorders lack decision-making capacity

■ Patients who are involuntarily committed lack decision-making capacity;

■ Only mental health experts can assess decision-making capacity.

(Ganzinin, np)

Dark side of autonomy:

■ “Patients who have the capacity to decide have the right to make wrong decisions. That is the dark side of patient autonomy. It can go awry and produce poor decision that make care providers uncomfortable. But there are patients who have probably made poor decisions forever. It is not the mandate of the care team to recreate their personality, their standards of judgement, and their decision-making” (Dubler, 85).

■ Physicians have a professional and moral duty to safeguard patients who lack capacity to understand the risks of their actions.

Consultation by a Psychiatrist for a “second opinion,” may be requested to assist with

capacity evaluation.

If the patient has a known or suspected psychiatric illness, a psychiatric consultation may

be requested to evaluate whether the patient meets

the criteria for an Involuntary Psychiatric Hold (Notice of

Mental Illness) in accordance with relevant statutes.

Process to assess Capacity and invoke a Substitute Decision-Maker

Notice of Mental Illness “2 MD hold” Psychiatric Hold (ORS 426.005; ORS 426.130. )

Clear and convincing evidence that the patient has a mental disorder, and, because of

that mental disorder.

Risk that a person might

physically injure or kill

himself

Risk that a person might

physically harm other

persons

Risk of harm through self-

neglect, ‘grave

disability,’ or failure to

meet basic needs

What a psychiatric hold does:■ Allegedly mentally ill person

– Does not include substance use disorder, delirium or neurocognitive disorders.

■ Once a psychiatric hold has been executed, the person who is subject to detention must be transferred to an appropriate facility within a specified period for further evaluation and care.

■ The lawful use of psychiatric hold is to declare that someone needs involuntary psychiatric examination for dangerousness arising “as a result of mental illness” not for danger from nonpsychiatric medical problems.

■ A psychiatric hold only authorizes short-term detention. It does not allow forcing medical or surgical treatment.

Pre-commitment

hold (psychiatric

hold)

ORS 426.070; ORS 426.228; ORS 426.231 through ORS 426.233.

CIVIL COMMITMENT: Civil commitment is a legal process in which a judge decides whether an individual who is allegedly mentally ill should be required to go to a psychiatric hospital or accept other mental health treatment for up to 180 days

Investigator from the CMHP investigates whether the patient needs to be committed

The investigator then advises a judge whether or not to hold a court hearing. ORS 426.070; ORS

426.074. Patient may be offered a 14-day diversion program

Equivalent to filing a civil commitment petition

Five working days

Primary Diagnoses of Patients Placed on an InvoluntaryPsychiatric Hold (IPH) in the Absence of a Defined Mental Disorder

Rationale Against the Use of Psychiatric

Holds for Patients Lacking

Decisional Capacity Due to

Medical Illnesses

The legal criteria for a psychiatric hold are not met

The patient does not need a psychiatric hospitalization

Psychiatric holds are time-limited and involve judicial proceedings

Psychiatric holds do not authorize medical treatment without consent

Medical conservatorship applications may be complicated by the presence of a psychiatric hold

Rationale Against the Use of

Psychiatric Holds for Patients Lacking

Decisional Capacity Due to Medical

Illnesses

The presence of a mental

disorder does not imply lack of

capacity, nor does a lack of capacity imply

mental disorder.

Using PHs for this purpose is

illegal, as it applies mental health law to

patients without evidence of a

mental disorder as defined by

the legal system.

Psychiatric Hold implies a need for psychiatric hospitalization and treatment once medically stable, which

may delay appropriate disposition

Doctors who execute

psychiatric holds in good faith –enjoy statutory immunity from

later accusations of malpractice or

false imprisonment.

When the overriding priority is the safety of the patient, the corresponding actions by physicians become ethically justifiable, even obligatory, especially when a patient’s autonomous decision making is effaced by incapacity of any cause.

The medical ethics principles of nonmaleficence and beneficence require that physicians take all reasonable precautions to prevent harm from coming to their patients.

Discharging a medically incapacitated patient AMA can result in harm, disability, and/or death from untreated medical illness. Furthermore, it places the provider at risk of liability for negligence and wrongful death.

Institutional Policy Safety Hold

Detaining a patient for medical-

surgical care: 7 components

of documentation.

Description of the patient’s refusal or efforts to leave the hospital

Patient’s stated reasons for refusing or wanting to leave

Reasonable alternatives to discharge that were offered

Description of how refusing medical treatment would create a clear risk of physical harm or death

Evidence that the patient lacks capacity to give informed consent or to refuse treatment

Actions take by the treating physician (eg, obtaining psychiatric consultation, enlisting other patient services, instituting physical restraint)

Person who provided consent to continue treatment and that person’s relationship to patient

References

1. Anna Glezer, M.D., Theodore A. Stern, M.D., Elizabeth A. Mort, M.D., Susan Atamian, R.N.,Joshua L. Abrams, J.D., Rebecca Weintraub Brendel, M.D., J.D. Documentation of Decision-Making Capacity, Informed Consent, and Health Care Proxies: A Study of Surrogate Consent. Psychosomatics 2011:52:521–529

2. Ganzini L1, Volicer L, Nelson WA, Fox E, Derse AR. Ten myths about decision-making capacity. J Am Med Dir Assoc. 2005 May-Jun;6(3 Suppl):S100-4.

3. Applebaum P: Assessment of patients’ competence to consent to treatment. N Engl J Med 2007; 357:1834–1840

4. Brendel RW, Schouten R, Levenson JL: Legal issues, in American Psychiatric Publishing Textbook of Psychosomatic Medicine,2nd ed. Levenson, JL. Ed. Washington DC: American Psychiatric Publishing, 2011; pp.19–32

5. Douglas Mossman, MD. Psychiatric ‘holds’ for nonpsychiatric patients. Current Psychiatry Vol. 12, No. 3

6. Erick H. Cheung, M.D., Jonathan Heldt, M.D., Thomas Strouse, M.D., Paul Schneider, M.D. The Medical Incapacity Hold: A Policy on the Involuntary Medical Hospitalization of Patients Who Lack Decisional Capacity Psychosomatics2018:59:169–176

7. Jonathan P. Heldt, M.D., Michael F. Zito, M.D., Ariel Seroussi, M.D., Sharlena P. Wilson, M.D., Paul L. Schneider, M.D., Thomas B. Strouse, M.D., Erick H. Cheung, M.D. A Medical Incapacity Hold Policy Reduces Inappropriate Use of Involuntary Psychiatric Holds While Protecting Patients From Harm Psychosomatics 2019:60:3746