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Varying Levels of Capacity and the Doctor’s Examination National College of Probate Judges 2016 Spring Conference May 17, 2016 Edward Poa, MD, FAPA Medical Director of Inpatient Services, The Menninger Clinic Associate Professor, Baylor College of Medicine 1. Agenda a. Causes of incapacity: common conditions, their symptoms, and how they affect capacity b. How physicians approach issues of incapacity c. Tips for working with physicians in issues of incapacity 2. Incapacitated person (Texas) - “…an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs…” 3. Incapacitated person is: a. Unable to: i. Provide food, clothing, or shelter for self, or ii. Care for own physical health, or iii. Manage own finances b. Because of a physical or mental condition 4. Neurocognitive disorders (Dementia) – ~3% of population over 65, ~40% of population over 85 a. Diagnostic criteria i. Memory impairment ii. One or more cognitive disturbances 1. Aphasia (language) 2. Apraxia (motor) 3. Agnosia (recognition) 4. Deficits in executive functioning 5. Deficits cause significant impairment and are a decline from previous functioning b. Types of Dementia include: i. Alzheimers – most common (2/3 of dementia cases); memory loss is usually most noticeable symptom; Mixed (combination of Alzheimers and Vascular) often lumped into this category ii. Lewy Body – second most common (10-15 % of cases); can result in visual hallucinations and respond poorly to antipsychotic medications Page 1 of 6 iii. Frontotemporal – characterized by personality changes, behavioral changes, and/or language impairment; memory may be preserved iv. Vascular – caused by loss of blood flow to parts of the brain due to ischemic (blockage of blood vessel) or hemorrhagic (bleeding) insult; deficit is due to part of brain affected and can be step-wise in nature v. Traumatic Brain Injury – deficit caused by direct result of physical injury and/or bruising; usually not progressive (unlike the other Dementias) vi. Alcoholic – Wernicke’s encephalopathy; confabulation can be a hallmark symptom vii. Parkinsons and Huntingtons disease – neurodegenerative disease with motor symptoms that can include cognitive symptoms viii. Due to a medical condition – liver failure, kidney failure, HIV/AIDS c. Diagnosed and treated by primary care physicians, neurologists, psychiatrists 5. Neurodevelopmental disorders a. Intellectual Disability (Mental Retardation) - IQ under 70 with problems in adaptive functioning; includes Down Syndrome, Fragile X Syndrome, fetal alcohol exposure; 2-3% population with up to ½ without clear cause b. Autism Spectrum Disorders (Autistic Disorder, Asperger’s Disorder, Pervasive Developmental Disorder) – disorders of social interaction, communication, and repetitive/stereotyped behavior c. Treated by neurologists, psychiatrists 6. Psychiatric disorders a. Psychotic disorders (Schizophrenia, Schizoaffective Disorder, Delusional Disorder) – characterized by problems perceiving and interpreting reality; symptoms can include positive symptoms (delusions, hallucinations, thought disorganization) and/or negative symptoms (apathy, decreased emotional expression, low motivation) b. Mood disorders (Depression or Bipolar Disorder) – mood episodes of either depression, mania, or a combination of the two; can result in psychotic symptoms in midst of severe episode c. Substance Use Disorders – continued use of substances despite negative consequences (health, social, financial, occupational); can result in persistent mental health effects d. Treated by primary care physicians, psychiatrists 7. Summary of physicians and which conditions they usually treat a. Primary care physician – majority of patients with dementia, post-stroke effects, mood disorders b. Psychiatrist – patients with psychotic disorders, mood disorders, intellectual disability, autism, brain injury Page 2 of 6 c. Neurologist – patients with dementia, post-stroke victims, intellectual disability, autism, brain injury 8. Physicians qualifications to consider a. Experience i. Age group ii. Patient or illness specialty b. Board certification c. Willingness to testify if needed d. How will they present in court? e. Physicians v. psychologists 9. Things to keep in mind about physicians a. Physicians work in highly hierarchical environments where their decisions are usually not questioned b. Physicians are expected to know what they are doing (and many are not used to asking questions or doing anything else that might indicate that they do not) c. Physicians do not like being in a position where they may appear incompetent 10. Physicians evolve in how they arrive at diagnoses and treatment decisions a. Physicians begin training by learning about specific symptoms needed to diagnose b. With experience, physicians often diagnose by patterns or “clinical impression” c. Many experienced physicians may not be accustomed to critically examining their diagnoses d. Because charting takes time and there are high paperwork demands, many physicians progress toward a documentation style that can gloss over rationale or thought process 11. What physicians are taught about capacity & competency a. “Capacity is a medical issue, while competency is a legal issue.” b. “Capacity to make medical decisions or give informed consent is determined by medical professionals.” c. “Competency, or total capacity, is determined by the courts.” d. “Guardians make decisions for another person.” 12. Provide the criteria as they may not know, or not apply, the appropriate legal criteria a. “Yes, this person needs someone to make decisions for them.” b. Based on a gut feeling or whether the physician agrees with the patient’s decisions 13. If available, provide the court-mandated form Page 3 of 6 a. Double-check that they have the current form (physicians often have outdated versions, if they have any at all) b. Will often help reduce anxiety about what information they need to provide c. Provides a structured format that will support their opinion 14. Watch out for physicians making general conclusions a. Physician believes that certain diagnoses (dementia, intellectual disability, schizophrenia) automatically result in incompetence b. Opinion on individual’s competence is based on an overall impression without clear evidence or examples 15. Ensure that there is a clear relation between a diagnosed condition and the inability to care for self or property a. A condition and an unrelated inability to care for self or property does not fulfill the criteria b. Be wary of “poor judgment” used as a condition or circular argument c. Some patients may have severe symptoms that do not affect their functioning 16. Ask how deficits affect their Activities of Daily Living a. Activities of Daily Living: self-care activities such as bathing, eating, dressing, toileting b. Instrumental Activities of Daily Living: requiring manipulation of implements such as managing money, taking medications, making phone calls, maintaining/cleaning home, shopping, cooking 17. Guard against extremes of paternalism or patient autonomy a. Doctor knows best i. Individual is incompetent if he doesn’t make healthy decisions or do what the physician recommends ii. Defines some behaviors as incompetence per se b. People have the right to do whatever they want and pay the consequences – resulting in an overly low bar for competence 18. Provide less intrusive alternatives that they may need to consider a. Guardian of person/estate b. Durable power of attorney c. Advance directive d. Veteran’s benefits fiduciary e. Representative payee 19. Provide the criteria for testamentary capacity if pertinent - Sufficient mental ability to: a. Understand the business in which he is engaged Page 4 of 6 b. c. d. e. The effect of his act in making the will The general nature and extent of his property Know the natural objects of his bounty (please explain to the physician) Have sufficient memory to collect in his mind the elements of the business to be transacted and to hold them long enough to at least perceive their obvious relation to each other f. Be able to form a reasonable judgment about them 20. Ask for one of the following objective measures of cognitive functioning: a. Mini Mental State Examination (MMSE) i. Widely known, easy to administer, 30 point scale ii. Low sensitivity, susceptible to practice effect b. Montreal Cognitive Assessment (MOCA) i. Increasingly used by physicians, 30 point scale ii. More sensitive, less practice effect c. Neuropsychological or intelligence testing i. Most sensitive and definitive ii. Expensive and time-consuming, requires a trained psychologist 21. Common report problems (Roof, 2012) a. Illegible b. Lacked discussion of specific deficits c. General conclusions about decision-making abilities 22. Have physician comment on the following, especially if there is no mandated form (Moye et al., 2007): a. What medical conditions are present that produce functional disability, and what are their prognoses? b. What is their cognitive functioning? c. Attention, motor skills, memory, understanding, arithmetic, communication, verbal reasoning, visual-spatial reasoning, executive functioning d. What is their ability to function daily? e. What are their individual values and preferences? f. What is their risk of harm and how much supervision is needed? g. What might be done to increase capacity? 23. Summary recommendations a. Make sure the physician knows the actual criteria (provide them if there is any doubt) b. Ask for specific diagnoses, symptoms, impairments, and a causal link between symptoms and impairments c. Be wary of “symptoms” that are not due to any of their diagnoses (e.g. poor judgment) Page 5 of 6 d. Watch for conclusory opinions 24. References a. Buruss, J.W., Kunik, M.E., Molinari, V., Orengo, C.A., & Rezabek, P. (2000). Guardianship applications for elderly patients: Why do they fail? Psychiatric Services, 51(4), 522-524. b. Gavisk, M. & Greene, E. (2007). Guardianship determinations by judges, attorneys, and guardians. Behavioral Sciences and the Law, 25, 339-353. c. Leo, R.J. (1999). Competency and the capacity to make treatment decisions: A primer for primary care physicians. Primary Care Companion to Journal of Clinical Psychiatry, 1(5), 131-141. d. Moye, J., Butz, S.W., Marson, D.C., Wood, E., & ABA-APA Capacity Assessment of Older Adults Working Group (2007). A conceptual model and assessment template for capacity evaluation in adult guardianship. The Gerontologist, 47(5), 591-603. e. Roof, J.G. (2012). Testamentary capacity and guardianship assessments. Psychiatric Clinics of North America, 35, 915-927. Page 6 of 6