Capacity: Clinical Decisions and Dilemmas

1. Capacity: Clinical Decisions and Dilemmas • Background • Typical Situations • Psychiatric Hospitals / Units. • General Hospitals. • Community. • Assets.

2. Definition of Capacity • Person’s decision making ability. • none in Ireland currently. • presumed unless contrary established. • unwise decision not a bar. • Proposed Definition. Mental Capacity Bill 2008. “The ability to understand the nature and consequences of a decision in the context of available choices at the time the decision is to be made. • A person lacks capacity if unable to: • understand information relevant to the decision. • retain the information. • use or weight the information in the decision making process. • communicate his/her decision.

3. Ireland – Functional Approach • Presume capacity. • evidence of contrary to displace this presumption. • focusing on specific function / decision required. • people entitled to make unwise / foolish decisions. • Poses a dilemma for doctors asked to assess capacity i.e. functional aspect. • bridge the medical/legal interface by linking lack of capacity for a particular function / decision to a medical diagnosis. • whilst accepting medical diagnoses such as LD or dementia do not necessarily mean lack of capacity. • contrary to status test of capacity e.g. wardship.

4. Other Jurisdictions • Functional Approach. • US moving in this direction. • Canada (Saskatchewan). • Disability / Disorder approach. • Scotland. • Australia / (Victoria). • Both UK • 2 stages: (i) impairment of / or disturbance in person’s mind or brain. (ii) sufficient that causes person to lack capacity for that particular decision.

5. Capacity and Irish Legislation • Lunacy Regulations (Ireland) Act 1871. • Person can only be made a WOC if deemed a “lunatic, idiot or person of unsound mind”. • Status test of capacity: lose control over all aspects of life. • Powers of Attorney Act 1996. In setting up an Enduring Power of Attorney, a person with capacity appoints people to make decisions re. financial and welfare treatment should they lose capacity. Medical treatment not covered hence • best interest / doctrine of necessity apply. • based on common law.

6. Other Relevant Irish Legislation: • Non-Fatal Offences Against the Person Act 1997. • 16+ • Medical /surgical /dental treatment. • Psychiatric treatment not addressed. • Mental Health Act ’01. • Under 18 parental consent to admission and treatment. • 18+ procedures for detention and review. • Lack of capacity not a reason for detention • Child Care Act 1991. • Child = person under 18. • Emergency care order. “Immediate and Serious risk to health or welfare…. placed in care of HSE”. • Capacity not addressed. • Criminal Law (Insanity) Act 2006. • rules for fitness to be tried. • no definition of capacity.

7. Clinical Decision and Dilemmas • Interface between medicine and law. • Only psychiatrists can assess capacity – not so. • Training for all doctors.

8. Psychiatric Hospitals/Units: Mental Health Act 2001 Dementia and MHA ‘01 • Lack of capacity a feature. • Dementia not a reason for detention. • 2 cases outlining implications of incapacity on: (i) Patients attending Tribunals (ii) Status in longstay approved centre

9. (i) Attendance at Tribunals • Normally not an issue. • LR insistent. • Preliminary matter. • Diagnosis. • Lack of capacity. • Misinterpretation of evidence/circumstance. • Distress. • Deterioration. • Insisted on attendance. • Evidence. • Subsequent distress.

10. Subsequent Events • Later that day. • Misinterpertration. • Very agitated. • Broke window. • Physically restrained. • IM Meds. • Letter to MHC. • Outlining events. • Usually not a problem. • Bring to notice of Tribunal Members. • General guidance to LRs and Tribunal Members re dementia and attendance at Tribunals.

11. (ii) Status in longstay approved centre • Detained for severe dementia not lack of capacity. • Move to longstay approved centre. • Passage of time. • No longer “severe dementia”. • Not detained (order elapses or is revoked). • No status. • MHC informed. • Legislation silent. • High Court Case Feb ‘08 • Detained in contravention of Article V of ECHR. • Overturned by Judge. • No costs to LR et al.

12. General Hospitals • Person with dementia refusing treatment. • Diagnosis of dementia: geriatrician / psychiatrist / neurologist to confirm or rebut diagnosis of dementia (if necessary) • Decision making ability re. treatment. • treatment discussed with patient by senior member of treating team. • understand info, retain it, use and weight, communicate decision. • then clinical decision made re. whether to proceed with treatment. • Capacity present - patient decides. • Capacity absent - common law. - doctrine of necessity. - consult with relatives. N.B. Same process for delerium.

13. Can a person with dementia make a decision to go home? • Psychiatrist / geriatrician confirm or rebut diagnosis (if necessary) • Dementia not sufficient reason to prevent discharge – even if lack capacity. • Collateral evidence. • Social Report. • Family, GP, PHN etc. • OT assessment. • in hospital. • At home. • Available home support services. • Only with all of above should decision be made by treating team.

14. Person at home • Self-neglect in an elderly person. • If not dementing. Person’s wishes paramount. • If dementing • Assess degree of risk from self neglect. • Based on collateral informaiton. • Social Report • Even if at risk options limited. • Passively acquiescing +/- assets. • Arrange placement – A Fair Deal. • Refusing to leave home. • Assets – use wardship. • No assets – no legal mechanism.

15. Elder abuse. • ? Need to move to place of safety. • Role of psychiatrist / geriatrician is to confirm or rebut diagnosis of dementia. • Not dementing - person’s wishes paramount. • If dementing require other evidence. • Social work report. • OT assessment. • Police involvement (if any). • On basis of all above Manager of Services for Elderly at primary care level +/ – legal advice makes decision. • Options include: • removal to place of safety. • barring of abuser. • charging of abuser.

16. A Fair Deal 2009 (Nursing Home Legisation) Removes entitlement to free longstay care in public and private institutions (non psychiatric). • now means teated. • person contributing 80% of income. • may raise a mortgage on their primary residence (if any) to maximum 15% value. • interest free loan. • financial arrangements based on presumption of capacity. If person lacks capacity and mortgage to be arranged, Care Representive appointed throught Circuit Court. Likely Problems: • Presumption of capacity unjustified. Vulnerable subgroup of elderly people: 5 % going into longstay care of whom 50 – 60% dementing. • Care Representative appointment initiated by next of kin through the Court Service. • No satisfactory mechanism in place to identify those lacking capacity. • No mechanism for obtaining medical reports. • Successful challenges likely hence loans not recouped after elderly persons death.

17. Capacity and Assets Anything involving money a minefield. • Income /business. • Saving / Shares etc. • Property In a person lacking capacity Doctor providing report should do so only on written request of solicitor thereby • authorising doctor to provide such a report. • protecting doctor against allegations of breaches of confidentiality. • directing doctor re. specific function/s to be assessed. Examples • Testamentary capacity. • EPA. • Wardship. • A Fair Deal.

18. Guidelines on Report: • should follow the Clapham Omnibus rule i.e. man on street reading report would come to same conclusions as doctor. • not sufficent to give an MMSE score. • ask and record replies to specific questions related to function being examined. • link lack of capacity to a diagnosis. • latter may include disorders causing communication problems e.g. strokes. • conclude with an opinion. • envisage being in court.

19. Training in Capacity Assessments • Should be available for all doctors. • Based on principles outlined. • Commonsense. • Good notekeeping. • Money – go through legal channel. Could you defend your opinion in court?