some clinician observations on legal capacity determinations...veracity (truth telling) justice...

Neuropsychology of Non-Alzheimer's Dementias

Daniel Marson, J.D., Ph.D. 1

Some Clinician Observations on Some Clinician Observations on

Legal Capacity DeterminationsLegal Capacity Determinations

Daniel Marson, J.D., Ph.D.Daniel Marson, J.D., Ph.D.

Professor of NeurologyProfessor of Neurology

Director, Alzheimer’s Disease Research CenterDirector, Alzheimer’s Disease Research Center

University of Alabama at BirminghamUniversity of Alabama at Birmingham

[email protected]@uab.edu

Judicial College Guardianship Training ProgramJudicial College Guardianship Training Program

April 26, 2007 Chapel Hill, North Carolina April 26, 2007 Chapel Hill, North Carolina

BackgroundBackground

�� Ethical PrinciplesEthical Principles

�� Clinical Capacity ConceptsClinical Capacity Concepts

�� Medical DecisionMedical Decision--Making CapacityMaking Capacity

�� Clinical Capacity Assessment ExerciseClinical Capacity Assessment Exercise



Time MagazineSeptember 3, 2001

Ethical PrinciplesEthical Principlesin Clinical Capacity in Clinical Capacity

AssessmentAssessment



Ethical Principles in Ethical Principles in Clinical Practice and ResearchClinical Practice and Research

�� BeneficenceBeneficence (duty to promote the good of the patient)(duty to promote the good of the patient)

�� NonmalificenceNonmalificence (duty to “do no harm” to patient)(duty to “do no harm” to patient)

�� Autonomy Autonomy (right of patient to self(right of patient to self--determination)determination)

�� Confidentiality Confidentiality (respect for patient privacy and control over (respect for patient privacy and control over

personal information)personal information)

�� Veracity Veracity (truth telling)(truth telling)

�� JusticeJustice (fairness of distribution of goods and services)(fairness of distribution of goods and services)

Morris J. Conflicts of interest. Morris J. Conflicts of interest. Alzheimer’s Disease and Associated Disorders Alzheimer’s Disease and Associated Disorders (1994).(1994).

Competing Ethical Principles Competing Ethical Principles

Underlying Capacity AssessmentsUnderlying Capacity Assessments

AUTONOMYAUTONOMY versus versus PROTECTIONPROTECTION

�� To what extent should we support a person’s autonomy (find To what extent should we support a person’s autonomy (find

her capable to act independently)?her capable to act independently)?

�� To what extent should we protect an impaired person’s (and To what extent should we protect an impaired person’s (and

ourselves) from risks/dangers caused by her impaired or ourselves) from risks/dangers caused by her impaired or

failing capacities (find her incapable and restrict autonomy)?failing capacities (find her incapable and restrict autonomy)?

�� This tension informs most competency assessmentsThis tension informs most competency assessments



A Few A Few Capacity/Competency Capacity/Competency

ConceptsConcepts

What is a Legal Competency?

“A threshold requirement, imposed by society, for “A threshold requirement, imposed by society, for

an individual to retain decision making power in an individual to retain decision making power in

a particular activity or set of activities.”a particular activity or set of activities.”



Multiple Competencies:

�� not a unitary concept or constructnot a unitary concept or construct

�� “competency to do what?”“competency to do what?”

�� “in what context”?“in what context”?

Civil Capacities/Competencies

�� Capacity to live independently (guardianship)Capacity to live independently (guardianship)

�� Capacity to manage financial affairs (conservatorship)Capacity to manage financial affairs (conservatorship)

�� Contractual capacity: Contractual capacity: make a contractmake a contract

�� Donative capacity: Donative capacity: make a giftmake a gift

�� Testamentary capacity: Testamentary capacity: make a will make a will

�� Treatment consent capacity: Treatment consent capacity: make medical decisionsmake medical decisions

�� Research consent capacity: Research consent capacity: participate in researchparticipate in research

�� Driving capacity: Driving capacity: operate a motor vehicleoperate a motor vehicle

�� Voting capacity: Voting capacity: capacity to cast a ballot in electioncapacity to cast a ballot in election



Capacity vs. Competency?Capacity vs. Competency?

�� Related but not interchangeable termsRelated but not interchangeable terms

Capacity vs. CompetencyCapacity vs. Competency

�� CapacityCapacity----IncapacityIncapacity::

�� denotes a denotes a clinical statusclinical status determined by cliniciandetermined by clinician

�� clinician makes clinical competency judgment based on clinician makes clinical competency judgment based on

patient’s functional, cognitive, and behavioral abilitiespatient’s functional, cognitive, and behavioral abilities

�� clinical judgment is “evidence” of legal competencyclinical judgment is “evidence” of legal competency

�� clinical judgment does not alter legal competency statusclinical judgment does not alter legal competency status

�� clinical judgment does not permit transfer of authority for clinical judgment does not permit transfer of authority for

decision making to another (exception: DPAs)decision making to another (exception: DPAs)



Capacity vs. CompetencyCapacity vs. Competency

�� Legal CompetencyLegal Competency----IncompetencyIncompetency::

�� denotes a denotes a legal statuslegal status determined by a judgedetermined by a judge

�� judgment based on clinical/lay evidence, case/statutory judgment based on clinical/lay evidence, case/statutory

law, principles of justice, and other nonlaw, principles of justice, and other non--clinical factorsclinical factors

�� judgment of “incompetency” alters legal status by removing judgment of “incompetency” alters legal status by removing

rights of self determination for specific matterrights of self determination for specific matter

�� judgment of “incompetency” requires transfer of decisional judgment of “incompetency” requires transfer of decisional

authority to a court appointed proxy: guardian/conservator authority to a court appointed proxy: guardian/conservator

Diagnosis Does Not Diagnosis Does Not

Constitute IncompetencyConstitute Incompetency

�� What does a diagnosis of vascular dementia tell What does a diagnosis of vascular dementia tell

you about a person’s capacity to drive? you about a person’s capacity to drive?

�� Diagnosis relevant to issue of driving capacityDiagnosis relevant to issue of driving capacity

�� But not determinative of driving capacity issueBut not determinative of driving capacity issue

�� Key Inquiry: Have to examine Key Inquiry: Have to examine functional functional

abilitiesabilities constituent to drivingconstituent to driving



Cognitive Impairment Does Not Cognitive Impairment Does Not Constitute IncompetencyConstitute Incompetency

�� What does a MMSE score of 25 tell you about a person’s What does a MMSE score of 25 tell you about a person’s

capacity to manage her finances? capacity to manage her finances?

�� Cognitive impairment is relevant to issue of financial capacityCognitive impairment is relevant to issue of financial capacity

�� But not by itself determinative of financial capacityBut not by itself determinative of financial capacity

�� Key Inquiry: Have to examine Key Inquiry: Have to examine functional abilitiesfunctional abilities

constituent to financial capacityconstituent to financial capacity

Clinical Evaluation of Clinical Evaluation of

CompetencyCompetency

((Medical DecisionMedical Decision--Making Capacity)Making Capacity)



Capacity to Consent to TreatmentCapacity to Consent to Treatment

�� CapacityCapacity toto consentconsent to,to, oror refuse,refuse, treatmenttreatment

�� SpecificSpecific competencycompetency underunder thethe civilcivil lawlaw

�� CrucialCrucial elementelement ofof informedinformed consentconsent doctrinedoctrine::

�� InformedInformed

�� VoluntaryVoluntary

�� Competent: does patient have the mental and emotional Competent: does patient have the mental and emotional

capacity to consent?capacity to consent?

�� Implicates issues of professional liabilityImplicates issues of professional liability

Functional Abilities Related to Functional Abilities Related to

Treatment Consent CapacityTreatment Consent Capacity

�� “evidencing” a treatment choice“evidencing” a treatment choice

�� “appreciating” personal consequences of choice“appreciating” personal consequences of choice

�� “reasoning” about treatment; providing “rational “reasoning” about treatment; providing “rational

reasons” for treatment choicereasons” for treatment choice

�� “understanding” treatment situation and choices“understanding” treatment situation and choices

�� making “reasonable” treatment choice [making “reasonable” treatment choice [discredited]discredited]



Standards for Capacity to ConsentStandards for Capacity to Consent

S1:S1: capacity simply to “evidence” a treatment choicecapacity simply to “evidence” a treatment choice

S3:S3: capacity to “appreciate consequences” of choicecapacity to “appreciate consequences” of choice

S4:S4: capacity to reason about treatment; provide capacity to reason about treatment; provide

“rational reasons” for choice“rational reasons” for choice

S5:S5: capacity to “understand” treatment situation, capacity to “understand” treatment situation,

treatment choices, respective risks/benefitstreatment choices, respective risks/benefits

[S2]:[S2]: capacity to make “reasonable” treatment choice capacity to make “reasonable” treatment choice

(when alternative is ‘unreasonable’)(when alternative is ‘unreasonable’)

Clinical Assessment MethodClinical Assessment Method

“Learn by doing”:“Learn by doing”: Capacity assessment videotape: Mr. XCapacity assessment videotape: Mr. X

Framework:Framework:

Review MMSE performanceReview MMSE performance

Review medical vignetteReview medical vignette

Review performance on four consent abilitiesReview performance on four consent abilities

Evaluate Mr. X’s medical decisionEvaluate Mr. X’s medical decision--making capacitymaking capacity

Judgment Outcome:Judgment Outcome: capable, marginally capable, or incapablecapable, marginally capable, or incapable



Four Core Consent AbilitiesFour Core Consent Abilities

S5:S5: capacity to “understand” treatment situation, capacity to “understand” treatment situation,

treatment choices, respective risks/benefitstreatment choices, respective risks/benefits

S1:S1: capacity simply to “evidence” a treatment choicecapacity simply to “evidence” a treatment choice

S4:S4: capacity to reason about treatment; provide capacity to reason about treatment; provide

“rational reasons” for treatment choice“rational reasons” for treatment choice

S3:S3: capacity to “appreciate consequences” of choicecapacity to “appreciate consequences” of choice

Who Is Mr. X?

xx years oldxx years oldCaucasianCaucasianx years of educationx years of educationMarriedMarriedMMSE of 19/30MMSE of 19/30Diagnosis of mildDiagnosis of mild--moderate ADmoderate AD



Capacity Assessment Video #1:Capacity Assessment Video #1:

Mr. XMr. X

Overall Judgment of Consent CapacityOverall Judgment of Consent Capacity

--Determine treatment consent capacityDetermine treatment consent capacity

--Weigh all info from videoWeigh all info from video

--Consider your judgments on the four consent abilitiesConsider your judgments on the four consent abilities

--Make a capacity judgment: Make a capacity judgment:

Capable, Marginally Capable, or IncapableCapable, Marginally Capable, or Incapable

--Briefly explain basis for your judgmentBriefly explain basis for your judgment



CollaboratorsCollaborators

Department of Department of

NeurologyNeurology

Randall Griffith, Ph.D.Randall Griffith, Ph.D.

Roy Martin, Ph.D.Roy Martin, Ph.D.

Justin Huthwaite, Ph.DJustin Huthwaite, Ph.D

Katherine Belue, B.S.Katherine Belue, B.S.

Sara Krzywanski, M.S.Sara Krzywanski, M.S.

Edward Zamrini, M.D. Edward Zamrini, M.D.

Lindy Harrell, M.D., Ph.D.Lindy Harrell, M.D., Ph.D.

Department of Biostats Department of Biostats Alfred Bartolucci, Ph.D.Alfred Bartolucci, Ph.D.

Nickie BurstNickie Burst

Lisa IrbyLisa Irby

Department of EducationDepartment of Education

Scott Snyder, Ph.D.Scott Snyder, Ph.D.

Department of PsychologyDepartment of Psychology

Virginia Wadley, Ph.D.Virginia Wadley, Ph.D.

National Institute on AgingNational Institute on Aging

Alzheimer’s Disease Research Center Alzheimer’s Disease Research Center (Harrell, PI)(Harrell, PI)

A Longitudinal Study of Loss of Financial Capacity in A Longitudinal Study of Loss of Financial Capacity in Alzheimer’s Disease Alzheimer’s Disease (ADRC Project 2) (Marson, PI)(ADRC Project 2) (Marson, PI)

Physician Judgments of Competency in AD Physician Judgments of Competency in AD (Pilot Grant) (Marson, PI) (1994)(Pilot Grant) (Marson, PI) (1994)

Functional Change in MCIFunctional Change in MCI (Marson, PI)(Marson, PI)

Alzheimer’s Disease Cooperative Study Alzheimer’s Disease Cooperative Study (Thal, PI)(Thal, PI)



National Institute of Mental Health

Studies of Financial Capacity in Alzheimer Studies of Financial Capacity in Alzheimer

Disease Disease (1 R01(1 R01--5524755247--A2) (Marson, PI)A2) (Marson, PI)

Alzheimer’s AssociationAlzheimer’s Association

The Competency of Alzheimer Patients to The Competency of Alzheimer Patients to

Make Informed Treatment Decisions Make Informed Treatment Decisions (PRG 91(PRG 91--122)122)

Longitudinal Studies of Loss of Competency in Longitudinal Studies of Loss of Competency in

Alzheimer’s Disease Alzheimer’s Disease (IIRG 93(IIRG 93--051)051)

some clinician observations on legal capacity determinations...veracity (truth telling) justice...

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