The Complexities of Mental Capacity:

A Key Elder Rights Issues

2012 IL Elder Rights Conference

Holly Ramsey-Klawsnik, PhD© 2012 Ramsey-Klawsnik

All Rights Reserved

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Discussion

• Complexities of mental capacity• Challenges in screening capacity • Possible inaccurate assumptions• Role of physical & mental illness,

disability, developmental disabilities, dementia, neglect and abuse

• Cultural issues • Gentle, respectful methods for screening• Using screening tests

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Mental Capacity

• An evolving clinical and legal concept

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Clinically

• An individual– Has capacity – Has diminished capacity or– Lacks capacity

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Legally

• An individual has or lacks capacity

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Current Thinking

• Capacities NOT capacity

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Capacities

• Decisional - ability to make decision

• Executional - ability to execute

• May be able to make decision but not personally execute

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Abilities/Domains• Provide medical consent• Consent to APS intervention• Make financial decisions• Manage finances• Engage in contracts/marry• Make a sound will• Drive• Consent to sexual activity• Manage ADLs or IADLs

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Current Thinking

• Evaluations should assess specific domains

• Limited court orders only for impaired domain(s)

• Avoid global descriptions when only limited impairments

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Procedures for Assessing

• Interview, observe & interact• Obtain collateral data• Formal tests– Functional assessment– Physical exam with lab tests– Psychological, including I.Q.– Neuropsychological– Medical tests of brain functioning– Psychiatric

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Concerns

Capacity lack may be temporary

Neglect/abuse can decrease capacity

Disability can mask capacity

Brief, crude testing can be harmful

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Between a Rock & a Hard Place

• APS workers expected to assess/screen• Not able to determine capacity• Critical decisions hinge on capacity• Difficult to obtain formal testing• “Quickie” tests can lead to false readings• Problems with 1x assessment

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Mental Illness & Capacity

• Most with dx MI have capacity

• Major MI can cause psychosis & temporary incapacity

• Effect of psych meds + or -

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Case Example

• Does this woman lack capacity?

• What is the evidence that she does or does not have capacity?

• How would you further assess?

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Mrs. T.

• Police referred “harmless but deranged” 79 yo widow to APS, repeat “nuisance calls”

• Lives alone – children out of area

• Calls police: “invaders” in her attic

• No heat due to no gas

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Mrs. T.

• Owned home in middle-class area• Home clean, well-maintained• Has raised 4 kids, worked in office• Independent in ADLs & IADLs• Hygiene good, memory intact• Drives, does errands• Adamant little people in attic stealing• Appeared paranoid, delusional

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Physical Disability & Capacity

• Many with physical disabilities mistaken as incapacitated

• CP, MS, Parkinson's Disease, Lou Gehrig Disease (ALS), aphasia

• Case example: Harold, has CP

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Need with Physical Disabilities

• Communication remedies

• Time, observation, interaction

• Background & collateral info

• May need specialists to assess

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Disease/Injury

• Illness and treatment affect capacity

• Infections, fluid in lungs, etc.

• Meds can alter cognition

• Post-surgery or trauma NOT time to assess capacity

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Mrs. N.

• 74 y.o. independent widow

• Fell, broke hip, surgery resulted

• MD used MMSE one day post-op

• Mrs. N. failed

• MD diagnosed & charted dementia

• Outcome…

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Developmental Disabilities

• Include intellectual disabilities

• I.Q. of 70 or below

• Many with DD have capacity

• Specific testing required

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Dementia & Capacity

• Dementia typically progressive

• Capacity retained early-mid stages

• Abilities tend to fluctuate

• Need multiple reads at various times

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Dementia Diagnosis Requires• Multiple cognitive deficits, including memory

impairment• Gradual onset• At least one of:

– Aphasia – language disorder– Apraxia – motor impairment– Agnosia – failure to recognize items

• Disturbance in executive functioning– Planning - organizing– Sequencing - abstracting

• Must be decline & severe impairment

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Caution re: Dementia Dx

• Dementia dx should not be interpreted as person not accurate reporter

• Abuse & neglect disclosures should NOT be discredited d/t dementia

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Neglectful Care

• Can profoundly affect cognition– Malnutrition – Dehydration– Untreated illness, infection– Lack of sleep– Over- under-medication– Isolation

• Much caution needed in assessing

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Case: Mr. W.

• Arrived at ER in poor condition• Disclosed abuse & neglect to nurse• APS report made• Admitted then displayed confusion• Disclosures dismissed, dementia

diagnosed• Transferred to LTC• Outcome…

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Abuse & Capacity

• Diminished capacity increases abuse risk

• Abuse can cause cognitive problems– Illness, injury, trauma, loss, etc.

• Cognitive limitations can result in being discredited when report actual abuse

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Deliberate Interference

• Abuser may hinder victim abilities to exploit

• Over, under-drug, isolate, disorient, deny adaptive devices

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Case: Lady From Georgia

• Moved to Ohio at son’s urging• There, imprisoned in his home• Isolated, exploited, abused, neglected• Drugged,presented as self-neglecting• Crude assessment by MDs• Son obtained guardianship • FE, neglect, abuse increased

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Screening Capacity

• Clinically complex, especially when– Abilities fluctuate– Communication barriers exist

• Limitations with brief tests

• Impact on client and rapport

• Risk of false positive/negatives

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Consider

• When assessing cognitive abilities…

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Culture & Language

• Culture, speech & language of both client and tester impact test accuracy

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Consider

• Am I seeing client at his/her worst?

• Am I seeing client at his/her best?

• Is the functioning typical?

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Consider - Is Client

Hungry, thirsty, sick, drugged, sleep deprived, fearful, in pain or crisis, grieving, acutely anxious, preoccupied?

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If Person Not at Baseline

• Functioning below normal displayed

• Cognitive assessment inappropriate

• Intervention may be needed

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Consider:

• Have I build rapport?

• Have I explained my role?

• Have I sought consent?

• Am I communicating clearly?

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Consider:

• Is situation conducive to assessing?

• Physical conditions

• Privacy

• Safety

• Are there urgent unmet needs?

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Key

• Observation and interaction over time necessary to fully assess esp. when disabilities exist

• Also need reliable history

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Use Collateral Data

• Beware tainted reports

• Obtain multiple opinions

• Obtain basis for opinions

• Records may be inaccurate

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Testing

• No standard test battery for evals

• Must select appropriate tests

• APA/ABA urge: “functional assessments that describe task-specific deficits”

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Evaluation Problems

• Many clinicians not trained to test functional & cognitive ability

• Testing that is too brief or crude• Using the wrong measures• Relying upon false data• Language/communication barriers• Testing client in crisis or distress• Global conclusions from limited data

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Natural Assessment

• Observe, interview, interact

• Observation and open-ended questions best practice

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Natural Opportunities

• Observe person & environment

• Does appearance suggest A&O?

• Clues in client’s environment

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Natural Opportunities

• Gentle, non-threatening conversation • Can client converse?– Understand what is said – Process & hold thoughts– Formulate responsive answers

• Assess memory through asking history• Use environmental clues– Photos, hobbies, abilities, needs, habits

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Other Opportunities

• Client sign & date forms

• Observe client do task– Are steps planned?– Is behavior meaningful?– Is desired goal reached?

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Questions When Tests Used

• Is tool validated, normed, standarized, acceptable measure?

• Is tester qualified, trained & experienced to administer & score this test, authorized to use?

• Is tester in a role in which testing is appropriate?

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Testing Questions Con’t

• Is elder in situation in which he/she can perform up to ability?

• Has tester built rapport, used conversation to engage and assess, obtained background info & permission to test?

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Testing Questions Con’t

• Has effective communication been established between tester & elder?

• Is there clear purpose & reason for the test?

• How will the results be used?

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Summary

• Use great caution in drawing conclusions re: mental capacity

• Consider: – Conditions under which capacity tested– How tested– Possible ulterior motives

• Assess at multiple times, use multiple methods

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Do

• Observe & document client statements, appearance, behaviors, environment, abilities

• Avoid rash conclusions • Avoid statements re: cause of problems• When capacity in question, seek quality

formal evaluation• Advocate for clients unfairly judged

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Thank you!

• And Good Luck in serving elders!