guy g. potter, phd department of psychiatry duke university medical center presented to:...

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


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?”


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?”


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


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.


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


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


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



As with cognitive impairment, choice, understanding, appreciation, and reason among individuals with psychiatric disorders vary by type and complexity of medical decision


6. DMC is a permanent condition7. Patients who have not been given relevant



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




10.Only mental health experts can assess 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?

guy g. potter, phd department of psychiatry duke university medical center presented to:...

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