guy g. potter, phd department of psychiatry duke university medical center presented to:...
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Guy G. Potter, PhDDepartment of Psychiatry
Duke University Medical Center
Presented to:
Fayetteville VA Medical Center
April 10, 2015
DisclosuresThe presenter has no financial or other
conflicts of interest to disclose
The presenter has no financial interests related to the information presented in this session.
Common-law principle of self-determination
Assumes individuals are autonomous
Guarantees individual's right to privacy and protection against the actions of others that may threaten bodily integrityBy extension, includes the right to exercise
control over one's body Right to accept or refuse medical treatment
Common-law principle of self-determination
Assumes individual competent to make choices, and accountability for choices made.
When individual not competent, procedures are necessary to balance patient self-determination versus patient health and well-being
Key procedures surrounding patient right of self-determination
Informed consentDecision making capacity (DMC)CompetencyGuardianship
Informed ConsentInformed Consent is the legal recognition that
each individual has the right to make decisions regarding his/her own healthcare
Capable patients are, by definition, able to give informed consent to treatment
Informed consent and decision making capacity are a linked process
Capacity vs. CompetenceCapacity refers to an ability to decide
Capacity is context specific; varies based on complexity of decision
Competence refers to an ability to executee.g., incompetence to execute decision
making more broadly
Capacity to do what?Financial Affairs
Court of Protection
Power of Attorney/ Wills
Health and Personal Welfare e.g.
Consent to medical treatment
Where to live/care arrangements
Personal Conduct
who to associate with
marriage and sexual relations
Litigation process
Many decisions fall outside of the medical treatment process
Capacity vs. CompetenceDMC = clinical judgment
DMC usually be assessed by physiciansSometimes conducted or aided by psychologists
Competency = legal decisionJudge rules on competency and its binding
parametersDMC assessment is core aspect of the
competency ruling
Guardianship
Basic civil rights are removedLoss of function in multiple arenas - making very
poor decisions– and lack of insight (appreciation) into deficits
No expectation to recoverClear and convincing evidenceBeyond reasonable doubt Considered as a last resort
Optimal Medical Decision-Making
1. Informed consent process = information sharing process Full disclosure of relevant information – purpose,
risks, benefits, alternatives Questions must be elicited and answered May require more than one discussion
2. Decision-Making Capacity Assessment (if needed) Focused on the specific decision Systematic and structured review
3. A well-informed choice is communicated Genuine Reflects personal values
Informed consentOptimal medical decision making begins
with adequate information
Capacity assessment cannot be determined until after patients are fully informed
Elements of Informed Consent
A discussion between patient-physician:
1. Disclose information regarding condition
2. Outline treatments and alternatives
3. Discuss potential benefits & risks
4. Obtain autonomous consent & document If DMC is questionable, assess & document
Assessing DMC: 4 key elements
1. Communicate a choice
2. Understand relevant information about proposed diagnostic tests or treatment
3. Appreciate their situation
4. Use reason to make decisions
Assessing DMC: 4 key elements
1. Communicate a choice
“Have you made a decision about treatment?”
“Have you decided where you want to go upon discharge?”
Choice is the most basic and easily met element
Assessing DMC: 4 key elements2. Understand relevant information about
proposed diagnostic tests or treatment
“Tell me your understanding of your condition”
“What are the risks?” “What are the benefits?” “What are the alternatives?”
Assessing DMC: 4 key elements
3. Appreciate the consequences of their decision
“What to you think will happen if you agree to this treatment?”
What do you think will happen if you do not agree to this treatment?”
Assessing DMC: 4 key elements
4. Use reason to make decisions
“How did you reach your decision?” “What were your reasons for making this
decision?” Goal: does the patient’s decision following
logically from their understanding and appreciation?
Reasoning is most difficult & subjective to assess
Assessing DMC: 4 key elementsDMC can be assessed with an opinion and
supporting evidence of these 4 elements:
1. Choice2. Understanding3. Appreciation (of consequences)4. Reasoning
(later we will discuss structured approaches to this process)
Misconceptions about DMC1. DMC and competency are the same
Misconceptions about DMC1. DMC and competency are the same
DMC is a medical decision
Competency is a legal decision
Misconceptions about DMC1. DMC and competency are the same2. Lack of DMC can be presumed when patients
go against medical advice
Misconceptions about DMC
2. Lack of DMC can be presumed when patients go against medical advice
DMC doesn’t protect from all bad/unwise decisions
Individuals have unique definitions of risk and benefit
Individual value systems may compel choices
Misconceptions about DMC1. DMC and competency are the same2. Lack of DMC can be presumed when patients go
against medical advice3. There is no need to assess DMC capacity
unless patients go against medical advice
Misconceptions about DMC3. There is no need to assess DMC capacity
unless patients go against medical advice
This is illogical: capacity to consent and capacity to choose are equivalent.
Should we worry about capacity to reject a shunt (prosthesis, medication, etc.), but not the capacity to
accept it?
Procedures can have adverse effects on quality of life
Misconceptions about DMC
1. DMC and competency are the same2. Lack of DMC can be presumed when patients go
against medical advice3. There is no need to assess DMC capacity unless
patients go against medical advice4. DMC is an ‘all or nothing’ phenomenon
Misconceptions about DMC4. DMC is an ‘all or nothing’ phenomenon
DMC exists on a continuum, and may be weighted by the risks of the treatment
DMC is specific to the treatment decision
Patient may have capacity to consent to a low-risk procedure in usual circumstances, but not have the capacity to consent to a high-risk protocol procedure, OR when confused or under duress.
Misconceptions about DMC
1. DMC and competency are the same2. Lack of DMC can be presumed when patients go
against medical advice3. There is no need to assess DMC capacity unless
patients go against medical advice4. DMC is an ‘all or nothing’ phenomenon5. Cognitive impairment equals lack of DMC
Misconceptions about DMC5. Cognitive impairment equals lack of DMC
Multiple cognitive processes contribute to DMC, but in impairment and perseveration, depending on the specific issue
Can still evidence choices when impaired
Can understand medical instructions with memory aids/strategies
Note: many individuals with cognitive impairment still maintain overall DMC
DMC challenges in TBIRelated to “Deficit Syndromes”
Isolation, withdrawal, apathy, low motivation
Related to Cognitive ChangesPoor judgment, inability to comprehend
consequences, poor decision making, perseveration, impaired memory and concentration, difficulty adjusting to the unexpected
Note: Extra attention to rapport building may be useful to gaining trust and reducing refusals in this population
The Frontal Lobe ParadoxPatient may perform well on cognitive testing
& present well in the clinicYET may continually make poor decisions in
daily life
Phinneas Gage
The Frontal Lobe ParadoxPatients with TBI-related impairments may
nonetheless have adequate DMC to manage money, litigate, or refuse treatment despite being vulnerable, impulsive, and easily influenced
DMC adequacy ≠ wisdomCan’t always protect patients from
themselves; but may work with pt to put structures and safeguard in place
Misconceptions about DMC6. Impaired DMC is a permanent condition
Misconceptions about DMC
6. Impaired DMC is a permanent condition
Improvement in many conditions can lead to better DMC:
TBI recovery Stroke recovery Delirium Mental illness
Important to re-assess DMC regularly
Misconceptions about DMC6. DMC is a permanent condition7. Patients who have not been given
relevant and consistent information about their treatment lack DMC
Misconceptions about DMC
7. Patients who have not been given relevant and consistent information about their treatment lack DMC
Patient cannot make adequate decisions without adequate information about condition, treatment options, risks, benefits
This underscores importance of informed consent dialogue with patients
Misconceptions about DMC6. DMC is a permanent condition7. Patients who have not been given relevant
and consistent information about their treatment DMC
8. All patients with certain psychiatric disorders lack DMC
Misconceptions about DMC
8. All patients with certain psychiatric disorders lack DMC
As with cognitive impairment, choice, understanding, appreciation, and reason among individuals with psychiatric disorders vary by type and complexity of medical decision
Misconceptions about DMC
6. DMC is a permanent condition7. Patients who have not been given relevant
and consistent information about their treatment DMC
8. All patients with certain psychiatric disorders lack DMC
9. Patients who have been involuntarily committed lack DMC
Misconceptions about DMC
9. Patients who have been involuntarily committed lack DMC
Reasons for refusing commitment may not apply to many treatment decisions
Misconceptions about DMC6. DMC is a permanent condition7. Patients who have not been given relevant
and consistent information about their treatment DMC
8. All patients with certain psychiatric disorders lack DMC
9. Patients who have been involuntarily committed lack DMC
10.Only mental health experts can assess DMC
Misconceptions about DMC
10. Only mental health experts can assess DMC
Assessment of DMC can be made by any fully trained clinician responsible for patient care; HOWEVER, consultation is helpful
Psychiatry Clinical psychology Neuropsychology Speech Occupational therapy Physical therapy
Other approaches to DMC assessment
Research suggests many physicians feel unqualified to conduct DMC assessment; thus, researchers have developed a variety of instruments to assist in assessing DMC
Caveats to DMC instrumentsTimeCost Lack of specificity to medical issueTraining
Benefits of instrument undermined if individual not trained in correct use or does not use instrument consistently
Even if not trained, may be a useful guide for interviewing
Potential consultations for DMCPsychiatry
Mental health impairments, impact of symptoms on DMC elements
Clinical psychology/neuropsychologyMental health and cognitive impairments,
impact on DMC elements
Potential consultations for DMCSpeech therapy
Assess language/comprehension deficits
Occupational therapySafety/function in the home, falls risk, driving
Physical TherapyPhysical capabilities relative to medical
condition and demands
Caveats to consultations
These do not constitute the DMC assessment should be used to:
Inform decision making
Support clinical observations/findings from assessing physician
Could also refute observations/findings, an indication that more thorough assessment may be needed to reconcile discrepant information
Examples of supportive information: neuropsychology
Impaired memory may provide neurological explanation for impaired understanding found in assessment
Impaired performance on executive function tests may provide neurological explanation for failure of insight (appreciation) or reasoning
Impaired visuospatial performance may support referral for driving evaluation in patient who want to drive AMA
Assessment – Medical Decisions
Scenario: Patient refusing a medical procedure
Has there been a thorough informed consent process?
All risks, benefits, alternatives described? Was lay language used? Was pt given opportunity to ask questions? How many times has the discussion occurred
and in what context?
Assessment – Medical Decisions1. Have patient describe his medical issue(s). – U2. Have patient paraphrase what the
recommended treatment is as well as the other options. – U
3. Have patient explain what the treatment involves and what it would mean for her. –U/A
4. Have patient express what he wants to do. – C5. Have patient explain the reasons behind his/her
decision.- A, R6. Have patient explain the risks and benefits of
his decision. – A, R
Assessment – Placement/AMA
Scenario: Patient wants to return homeHas there been a thorough informed
consent process? All risks, benefits, alternatives described?Lay language used?Was pt given opportunity to ask questions?How many times has the discussion occurred?
Assessment – Placement/AMA
1. Obtain funcational assessment (OT/PT; neuropsychological assessment as needed)
2. Review pt’s functional history3. Have pt paraphrase what providers are
concerned about and why they think placement should be considered - U
4. Have pt express whether he agrees with the concerns - U/A
5. Have pt state what he wants to do –C6. Have pt explain risks and benefits of his
decision –A, R7. Have pt explain reasons behind his/her
decision – A, R
When questioning capacity:
What is/are the focused area/s of concern? Living situation, refusing a particular treatment
Is this lack of insight or poor judgment?
What is different about the pt now/from prior to admission that places him/her at greater risk?
What will be the treatment plan if the pt is found to lack capacity or have capacity?
Are there really no other options?Think outside the box –(ways to get additional
support at home, medical management vs. surgery)
Summary of DMC
DMC evaluates an individual’s comprehension and appreciation of a treatment choice based on a thorough informed consent discussion.
Understanding, appreciation, rational reasoning and choice
Summary of DMCDoes not include treatment plan
recommendations, but can help the team formulate a treatment plan
Does not determine who surrogate should be if there is a lack of DMC; that is a legal question
Time for questions/discussion?
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