Download Incapable of making an informed decision

INCAPACITY, INCOMPETENCE AND
SUBSTITUTE DECISION-MAKING:
LEGAL TOOLS AND LEGAL LIMITS IN
PROVIDING PERSON-CENTERED
HEALTH CARE
JOHN E. OLIVER, ESQ.
INSTITUTE OF LAW, PSYCHIATRY AND PUBLIC POLICY
Legal Capacity: Presumed by Law
Your 18th birthday is our society’s arbitrary dividing
line between presumed legal incapacity as a juvenile
(with certain statutory exceptions) and presumed
legal capacity as an adult
This includes capacity to make decisions about
treatment:
• Va. Code Section 54.1-2983.2: “Every adult shall be
presumed to be capable of making an informed
decision unless he is determined to be incapable of
making an informed decision in accordance with
this article.” (Article 8:“Health Care Decisions Act”)
Legal capacity: diagnosis of mental
illness does not, by itself, affect it
Virginia Code Section 54.1-2983.2: “No person
shall be deemed incapable of making an
informed decision based solely on a particular
clinical diagnosis.”
Incapacity requires a specific finding by a health
care provider or court
On the other hand….legal capacity and
informed consent to treatment
In health care treatment, the law also requires
that a person’s consent to treatment must be
“informed” in order to be valid.
The elements of “informed consent to
treatment”: from the provider
18VAC85-20-28 (from Va. Admin. Code for Medicine,
Osteopathic Medicine, Podiatry and Chiropractic)]
• accurately inform a patient of medical diagnoses, prognosis
and prescribed treatment or plan of care
• present information relating to the patient's care in
understandable terms and encourage participation in the
decisions regarding the patient's care.
• inform patient of the risks, benefits, and alternatives of the
recommended…. procedure that a reasonably prudent
practitioner in similar practice in Virginia would tell a patient.
• not deliberately make a false or misleading statement
regarding the practitioner's skill or the efficacy or value of a
medication, treatment, or procedure prescribed or directed by
the practitioner in the treatment of any disease or condition.
The elements of “informed consent to
treatment”: from the provider
12VAC35-115-70. (from DBHDS Human Rights Regulations)
• An explanation of the treatment and its purpose;
• A description of any adverse consequences and risks associated with
the treatment;
• A description of any benefits that may be expected from the
research, treatment, or service;
• A description of any alternative procedures that might be
considered, along with their side effects, risks, and benefits;
• Notification that the individual is free to refuse or withdraw consent
and to discontinue participation in any treatment requiring consent
at any time without fear of reprisal or prejudice;
• A description of the ways in which the individual or authorized
representative can raise concerns and ask questions about the
treatment;
• No fraud or duress.
The elements of “informed consent to
treatment”: from the individual
Having “decisional capacity”:
• Ability to understand the nature, extent and
probable consequences of the proposed
treatment
• Ability to make a rational evaluation of the risks
and benefits of alternatives to that treatment
• Ability to communicate a choice about that
treatment and the reasons for that choice
Informed Consent and Decisional
Capacity
If “decisional capacity” is missing,
“informed consent” is not possible.
Decisional Capacity is Fluid
Can be lost temporarily, due to the effects of
disease, medication, or accident, or loss may be
permanent
Can be regained temporarily
Can be affected by the complexity of the proposed
treatment
So, a person can have capacity for some decisions
but not for others; and can have capacity at
certain times and not others.
When is a person “incapable of making
informed decisions about treatment”?
Virginia Health Care Decisions Act [HCDA] (Va. Code
Sections 54.1-2981 through 54.1-2993)
Section 54.1-2982 (Definitions): "Incapable of
making an informed decision" means the
inability of an adult patient, because of mental
illness, intellectual disability, or any other mental or
physical disorder that precludes communication or
impairs judgment, to make an informed decision
about providing, continuing, withholding or
withdrawing a specific health care treatment or
course of treatment because….
When is a person “incapable of making
informed decisions about treatment”?
• …he is unable to understand
• the nature, extent or probable consequences of
the proposed health care decision,
• or to make a rational evaluation of the risks and
benefits of alternatives to that decision.”
“Incapable of making an informed
decision”: who has the authority to
find incapacity?
HCDA: Section 54.1-2983.2 – incapacity as a
medical decision:
• Person’s “attending physician” makes finding
• Must be confirmed by a “capacity reviewer”
(physician or licensed clinical psychologist)
• Must be in medical record and reviewed with
patient
• Good for up to 180 days
“Incapable of making an informed
decision”: extent of the incapacity
• Va. Code Section 54.1-2983.2(A):
• A determination that a patient is incapable of
making an informed decision may apply to:
- a particular health care decision,
- a specified set of health care decisions, or
- all health care decisions.
“Incapable of making an informed
decision”: who makes treatment
decisions if incapacity is found?
Virginia Code Sections 54.1-2983 and 54.1-2986
set out legally authorized substitute decisionmakers
Substitute decision-makers: health
care agents named in an advance
directive (AD)
• Sec. 54.1-2983: “Any adult capable of making an
informed decision may, at any time, make a
written advance directive to address any or all
forms of health care in the event the declarant is
later determined to be incapable of making an
informed decision.”
• Reminder: adults are presumed by law to be
capable of making an informed decision
• AD combines “living will” and “health care
power of attorney”/”health care proxy”
Advance Directive
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Name an agent
Give directions
Do BOTH; agent is bound by directions
Can address: end of life care; general care; and
(since 2009) mental health care
No specific form required
To be valid: only requires person’s signature and
signature of two adult witnesses
No notary required
Copies as valid as original
Advance directive: powers of the
agent
• Person can specify nature and extent of agent’s
powers (key issue: what are the consequences if
a power is removed?)
• Power to authorize treatment over objection: the
“Ulysses Clause” (protest clause) – important
tool in cases of incapacity due to mental
illness/dementia
Advance directives: do they bind the
health care provider?
• Bottom line: a patient’s advance directive cannot
direct a provider’s care any more or less than a
patient with capacity can direct that care.
• So: (1) provider should acknowledge the
expressed preferences and instructions of the
patient, but is not required to take any action the
provider deems illegal, unethical or medically
inappropriate;
(2) provider cannot provide treatment the
patient refuses in the advance directive, unless
there is separate legal authority for providing
that treatment (e.g., court order, emergency)
Substitute decision-makers if there is
no advance directive
Section 54.1-2986 sets out legally authorized
substitute decision-makers if there is no AD:
1. Court appointed guardian
2. Spouse (except where divorce action filed)
3. Adult child/children
4. Parents
5. Adult sibling/siblings
6. Relatives
7. Close friend
If multiple substitutes in a class: majority rules
Substitute decision-maker in programs
operated, licensed, funded by DBHDS
12VAC35-115-145:
If capacity of person to give informed consent is in
doubt, capacity evaluation must be done by qualified
professional
12VAC35-115-146:
If incapacity is found, an “authorized representative”
(AR) must be designated by the provider to give
substitute consent
Priority list of AR’s follows HCDA, except that priority
given to person’s preference re family member
AR designation applies only to that provider
Duties of substitute decision-makers
• make good faith effort to know risks and benefits
of, and alternatives to, proposed care,
• make a good faith effort to know beliefs, values
and preferences of the person relating to care,
• to the extent possible, base decisions on the
person’s beliefs, values, and preferences, and, if
unknown, on person's best interests.
Note: Section 54.1-2986 provides that the
“statutory” substitute decision-makers must be
“available, willing and capable”.
If the incapacitated person objects:
treatment over objection
Virginia Code Section 54.1-2986.2:
• “Ulysses Clause” in advance directive: power to
authorize treatment over objection
• Otherwise:
(1) For general health care: physician
recommends and “facility’s patient care
consulting committee” or 2 physicians not
involved in the care find it OK
(2) For mental health care: cannot authorize over
objection
If the incapacitated person objects:
treatment over objection
NOTE: an incapacitated person’s objection
to the withholding or withdrawal of lifeprolonging procedures is always honored,
regardless of the person’s prior
instructions.
If there is no family or friend: judicial
authorization of treatment
Virginia Code Sections 37.2-1101-1109:
• Any person can file petition
• Judge/special justice must find:
-person incapable of making informed decision
-there is no available authorized substitute
decision-maker
-treatment is in the person’s “best interests”
-treatment does not violate person’s basic
values or beliefs unless treatment “necessary to
prevent death or a serious irreversible
condition”
If there is no family or friend: judicial
authorization of treatment
Limits (37.2-1102): court cannot authorize:
• Non-therapeutic sterilization, abortion, or
psychosurgery
• Admission to a training center due to ID (but
can authorize treatment of person admitted
under other statutes)
• Antipsychotic meds for >180 days or ECT for
>60 days, and no such authorization if person
objects, unless person involuntarily admitted to
psychiatric hospital
Judicial authorization of treatment:
emergency treatment recognized
Virginia Code Section 37.2-1101(I):
“Nothing in this section shall be construed to
limit the authority of a treating physician or
other service provider to administer treatment
without judicial authorization when necessary to
stabilize the condition of the person for whom
treatment is sought in an emergency.”
Emergency treatment in DBHDS
operated, licensed, funded programs
12VAC35-115-30: "Emergency”: “a situation that
requires a person to take immediate action to avoid
harm, injury, or death to an individual or to others.”
12VAC35-115-70: “Providers may initiate, administer,
or undertake a proposed treatment without the
consent of the individual or the individual's
authorized representative in an emergency.”
“…The provisions of these regulations are not
intended to be exclusive of other provisions of law
but are cumulative.”
If there is no family or friend: emergency
custody order (medical ECO)
Virginia Code Section 37.2-1103:
Based on the opinion of a licensed physician that
(1) person lacks the capacity to make an informed
decision,
(2) medical standard of care indicates medical
observation/testing/care necessary to “prevent
imminent and irreversible harm”, and
(3) person is refusing to go to such care,
magistrate may issue an ECO for person to be transported
to facility for that care.
Physician must have communicated with EMS staff on the
scene and at least attempted to communicate with the
person.
Person can be kept no more than 4 hours under ECO.
If there is no family or friend: medical ECO
to TDO (temporary detention order)
Once at hospital, physician determines if person
meets criteria for medical TDO (Section 37.2-1104),
which court/magistrate can issue if finds “probable
cause” to believe:
• Person incapable of making/communicating
informed decision regarding treatment
• medical standard of care is testing, observation, or
treatment within the next 24 hours to “prevent
death or disability” or “treat an emergency medical
condition that requires immediate action to avoid
harm, injury, or death…”
If needed treatment likely to exceed 24 hours, petition
for judicial authorization of treatment needed.
Medical ECO and TDO law: recognizes
other grounds for emergency care
Virginia Code Section 37.2-1108:
“Nothing in this chapter shall be deemed to affect the
right to use … any other applicable statutory or
regulatory procedure relating to consent or to diminish
any common law authority of a physician or other
treatment provider to administer treatment to a person
unable to give or to communicate informed consent to
those actions, with or without the consent of the person's
relative, including common law or other authority to
provide treatment in an emergency situation; nor shall
anything in this chapter be construed to affect the law
defining the conditions under which consent shall be
obtained for administering treatment or the nature of
the consent required.”
If there is no family or friend: medical
treatment in DBHDS or CSB program if
delay would adversely affect patient
Va. Code Section 54.1-2970:
Surgical, medical or dental treatment authorized for
person lacking capacity to give informed consent
because of MI or ID if:
1. No “legally authorized guardian or committee”
available to give consent
2. Reasonable effort made to advise kin
3. No “reasonable objection” by person
4. 2 physicians (or dentists) confirm: treatment
explained to person; person lacks capacity to make
informed decision; delay in treating “might
adversely affect recovery”
Beyond incapacity for specific treatment:
guardianship and conservatorship
Guardianship and Conservatorship: Va. Code Sections
64.2-2000 through 64.2-2029
"Incapacitated person" means an adult who has been
found by a court to be incapable of receiving and
evaluating information effectively or responding to
people, events, or environments to such an extent that
the individual lacks the capacity to (i) meet the essential
requirements for his health, care, safety, or therapeutic
needs without the assistance or protection of a guardian
or (ii) manage property or financial affairs or provide for
his support or for the support of his legal dependents
without the assistance or protection of a conservator.
Incapacity and poor judgment
64.2-2000: “A finding that the individual displays
poor judgment alone shall not be considered
sufficient evidence that the individual is an
incapacitated person within the meaning of this
definition.”
Being “legally incapacitated” and
“legally incompetent”
64.2-2000: “A finding that a person is
incapacitated shall be construed as a finding that
the person is "mentally incompetent" as that
term is used in Article II, Section 1 of the
Constitution of Virginia and Title 24.2 [relating
to the right to vote] unless the court order
entered pursuant to this chapter specifically
provides otherwise.”
Establishing incapacity: the role of the
“evaluation report”
64.2-2005(A): “The report shall be prepared by one or
more licensed physicians or psychologists or
licensed professionals skilled in the assessment and
treatment of the physical or mental conditions of the
respondent as alleged in the petition.”
64.2-2005(C): “In the absence of bad faith or
malicious intent, a person performing the evaluation
shall be immune from civil liability for any breach of
patient confidentiality made in furtherance of his
duties under this section.”
The evaluation report: required
elements under 64.2-2005(B)
• The report shall evaluate the condition of the respondent and
shall contain, to the best information and belief of its
signatory:
• 1. A description of the nature, type, and extent of the
respondent's incapacity, including the respondent's specific
functional impairments;
• 2. A diagnosis or assessment of the respondent's mental and
physical condition, including a statement as to whether the
individual is on any medications that may affect his actions or
demeanor, and, where appropriate and consistent with the
scope of the evaluator's license, an evaluation of the
respondent's ability to learn self-care skills, adaptive behavior,
and social skills and a prognosis for improvement;
• 3. The date or dates of the examinations, evaluations, and
assessments upon which the report is based; and
• 4. The signature of the person conducting the evaluation and
the nature of the professional license held by that person.
Incapacity determination by the Court
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Clear and convincing evidence
State the nature and extent of incapacity
Specify powers of guardian and conservator
Can provide for limited guardianship or
conservatorship
• Can provide for time-limitation or “indefinite
duration”
• Can authorize guardian to consent to person’s
admission to psychiatric facility (even over
objection) if specific findings made
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