Professional training Office of the Public Guardian

Capacity Assessment ProcessUnder the Personal Directives Act

OBJECTIVES:

Understand the new capacity assessment provisions in the PDA

Learn about your role as a Health care service provider

Integrate ‘best practices’ when declaring on a maker’s capacity

A personal directive is…

A legal planning tool to help ensure personal wishes are followed when unable to make decisions because of illness or injury

It is estimated that 100,000 Albertans currently have a personal directive

Who is involved?

The Maker: the person who writes and signs the directive

The Agent: the person(s) named to make personal decisions – legal representative

Service Providers: professionals who need to refer to the personal directive before providing services (after the maker has lost capacity)

Overview of PDA changes since June 30 2008

Directives made outside of Alberta are valid when they comply with the requirements of the Personal Directives Act

Makers may indicate who they want to temporarily care for and educate their minor children

Overview of PDA changes since June 30 2008

• Standard personal directives form - voluntary use

“Schedule 1” can be obtained from: the Office of the Public Guardian on-line

www.seniors.gov.ab.ca/opg/

Or, by calling toll free at: 1 - 877- 427- 4525

Overview of PDA changes since June 30 2008

The Public Guardian:

• May be designated as sole agent

• Can investigate complaints made against agents•Schedule 7

Overview of PDA changes since June 30 2008

• Voluntary “On Line” Registry for personal directives

seniors.alberta.ca/opg/registry/

Overview of PDA changes since June 30 2008

Standardized Declaration of Incapacity new schedules: 2 and 3

Establishing a new process for determining if an adult has regained the ability to make personal decisions new schedules: 4, 5 and 6

PDA - Definition of capacity

The ability to understand the information that

is relevant to making of a personal decision

and the ability to appreciate the reasonable

foreseeable consequences of the decision

What is Capacity?

Capacity is not a medical diagnosis Health care providers can provide a

clinical opinion on capacity Competency is legal decision made by

the Court, based on evidence

Risk by Choice

A risky decision is not necessarily an incompetent decision– Stockbrokers, soldiers, medical

professionals and patients make them every day.

It is the process – or the lack of process – by which risky decisions are made that calls into question the capacity of a patient to make that decision.

Capacity Assessment

Capacity assessment is a process for determining whether there is sufficient evidence to declare a person incapable of managing their affairs

The emphasis is on the quality of the decision-making process, not the actual course of action in which a person engages

Guiding Principles

All adults presumed capable of making their own decisions until contrary demonstrated

Taking away person’s right to liberty and freedom is a very serious step

Guardianship/Invoking PD is a last resort and there must be evidence that it is absolutely necessary

The onus is on the assessor to demonstrate lack of capacity, not on the patient to demonstrate capacity

Common Pitfalls

Practitioner doesn’t understand that capacity is not “all or nothing”, but specific to a decision

Practitioner fails to ensure that patient has been given relevant information about proposed treatment before making a decision

Costs of Poorly Conducted Assessments

Unnecessary, uncoordinated and multiple assessments is an assault on patient’s human dignity

Generates other costs and burdens by delaying services and taxing health care staff resources

Erodes ethical and moral integrity of the organization and trust

Generates further conflict, including possible complaints, ethics consults, litigation, etc.

Triggers Indicating Incapacity

A capacity assessment may be necessary if the trigger meets the following additional criteria:

1. An event or circumstance which potentially places a patient, or others, at risk that

2. Is apparently caused by impaired decision-making which

3. Necessitates investigation, problem-solving (and possibly action) on the part of a health care professional

Characteristics of a Valid Trigger

– Substantive RISK to patient and/or others– Demonstrated or likely BEHAVIOUR– The risk seems to be caused by a DECISION– There is CONFLICT about the decision

Common Triggers

Discharge planning!Values/Beliefs in conflict with staffUnable to understand different options for solving

problems Does not appreciate risks and benefits of different

choicesMakes a choice, but unable to carry it out or to

direct someone else to do soEasily led and taken advantage of

Valid Trigger: Now what?

Gather information, identify the effected domains and attempt to problem-solve the issues.

Domains of Decision-Making Decisions can be categorized into functional “Domains.”

Domains of Decision-Making

Healthcare Employment

Accommodation Legal Affairs

Choice of associates

Social Activities Permits/Licenses

Education/Training Financial and Estate

• An incapacity to make decisions in one domain does not mean the patient is incapable of making decisions in other domains.

Information Gathering

Collect collateral information:– Families– Homecare– Resident managers

Investigate reversible causes of incapacity (i.e., delirium, medication, etc.)

Involve the interdisciplinary team and ask them to provide their perspectives.

Assess Risk

Investigate and document risky and unsafe situations prior to admission (if there were no risky or unsafe situations, what’s changed?).

Higher the risk to the patient or others, the stricter the standards

Explore risk reduction strategies

Problem-solving Be creative !! Involve patients and families in problem-solving Seek perspectives from other team members Consider formal resources Mobilize informal resources Issue may be resolved by problem solving without

formal capacity assessment

Best Practices

Capacity should not be solely determined by MMSE scores

Best Practice: Multi-factorial and focus on functional ability of the individual

The Gold Standard

Inquiry Understanding: adequate factual

knowledge base and understanding of options

Appreciation: adequate appraisal of outcome and justification of choices

Initiation: ability to follow through with choices

Capacity assessment in PDA

The assessor forms an opinion about the ability of the maker to:

Understand the information that is needed to make a decision

Retain information that is relevant to making a decision

Identify and appreciate the consequences of making or not making a decision

Communicate his/her decision about specific personal matters (checked off in the schedule)

How is capacity assessed in the PDA?

Two scenarios for initiating a capacity assessment:

1. A maker may name someone in their personal directive to initiate the assessment consult physician / psychologist: Schedule 2

2. No one named in the personal directive physician / psychologist initiates the assessment consult with additional health care provider:Schedule3

Two people must be involved in the assessment.

Declaration of Incapacity: Schedule 2

Declaration of Incapacity:Schedule 3

In the assessment process, assessors must interview the maker:

To explain the purpose and nature of the assessment

To advise the maker of his/her right to refuse assessment

To clarify the significance and effects of a finding of incapacity

Declaration of Incapacity: Interviewing the Maker

The assessor forms an opinion about the ability of the maker to:

Understand the information that is needed to make a decision

Retain information that is relevant to making a decision

Identify and appreciate the consequences of making or not making a decision

Communicate his/her decision about specific personal matters (checked off in the schedule)

Specific to the decision at hand.

Declaration of Incapacity: Schedule 2 and 3

Process of Capacity Assessment

Declaration of Incapacity: Completing Schedule 2 and 3

The assessor makes a determination that the maker lacks capacity in specific personal domain(s)

Declaration of Incapacity: Completing Schedule 2 and 3

The assessor may:

Attach additional assessment reports when available

Recommend that the declaration be reviewed on a specific date

The assessor must provide a copy of the Declaration of Incapacity to:

The maker The named agents Any other person named in the personal directive

Legal processes after completing an initial Declaration

Best practice: When a personal directive is in effect

As a service provider ask for: The personal directive, to note the name and

authority of the agent (request agent ID) The declaration of incapacity The areas of incapacity for decision-making

authority

Determination of Regained Capacity

A re-assessment of the maker’s capacity should occur when:

The agent, a service provider or the maker believes there has been a significant change in the maker’s capacity

A significant change is an observable and sustained improvement that does not appear to be temporary

Determination of Regained Capacity: Requested by a maker

A maker may request that the maker’s agent or service provider assess the maker’s capacity

However, the agent or the service provider may refuse the request …

… if it does not appear that there has been a significant change in the maker’s capacity to make a personal decision

Determination of Regained Capacity:Schedule 4 – Agent initiates process

Regaining Capacity: Schedule 5Service Provider initiates process

Regaining Capacity: Schedule 4 Agent initiates process

Regaining Capacity: Schedule 4 Agent initiates process – Part 1

The agent must: SPEAK WITH THE MAKER AND SERVICE PROVIDER

Review health or other records about the maker that are relevant to the assessment

Discuss the records with the maker’s physician or health care practitioner

Regaining Capacity: Schedule 4 Agent initiates process - Part 1

In assessing whether the maker has regained capacity the agent must state that:

the agent/ service provider who provided health care services to the maker has observed a significant change in the maker’s capacity

has considered statements/ evidence provided a service provider that there has been a change in the maker’s capacity

has considered the changes in the maker’s capacity over a period of time

Check off any applicable areas over which the maker regained capacity.

Regaining Capacity: Schedule 4 Agent initiates process – Part 2

Done by service provider Follows the same steps as the agent did

in Part 1

Regaining Capacity: Schedule 5 Service provider initiates process

Schedule 5 is the reverse with same steps as schedule 4– Part 1: service provider– Part 2: agent

Schedule 6 - agent and service provider disagree on a maker’s regained capacity

Schedule 6:Determination of regained Capacity

Part 1 : physician or psychologist Part 2 : service provider

The assessor determines that: it is in the best interest of the maker to

conduct the assessment the maker has regained capacity to make

decisions about specific personal matters

Follows the same guiding rules in schedule2/3

Legal process after a maker has been determined to have regained capacity

The decision of the 2 assessors who complete Schedule 6 is binding to all parties.

Any one in disagreement with the assessors may make an to request the Court to make a determination of capacity of the maker

The Court may order a report on the capacity of a maker be prepared.

How is capacity assessed in the PDA?

Two assessors required for assessment of capacity for all schedules

Assessors: physician/psychologist(2,3,6)

: service provider in health care

(3,4,5,6) Skills: not defined. Recommended: scope of practice and

competence

Liability

The Personal Directives Act states that an agent or a service provider is not liable for what they do or omit to do,

as long as they are acting in good faith and in accordance with the Act.

Do you need more PDA information…?

OPG website: www.seniors.gov.ab/opg OPG Toll free: 1- 877- 427- 4525

OPG North: Grande Prairie 780 - 833 - 4319St. Paul 780 – 645 - 6278

OPG Edmonton: 780 - 427 – 0017

OPG Red Deer: 403 - 340 – 5165

OPG Calgary : 403 - 297 – 3364

OPG South: Lethbridge 403 – 381 - 5648Medicine Hat 403 – 529 - 3744