COMPETENCY ISSUES AND DEMENTIA

PMDA’s 16th Annual Symposium

October 24, 2008

Presenters

Kenneth Brubaker, MD, CMD

Geriatric Program Director

Lancaster General Hospital

Lancaster, PA 717-544-3022jkbrubak@lancastergeneral.org

Paula G. Sanders, Esquire

Post & Schell PC17 North 2nd Street,

12th FloorHarrisburg, PA 17101717-612-6027psanders@postschell.c

om

Objectives

Define competency and decision-making capacity

Identify ways to evaluate these abilities in patients with dementia

Discuss implications for families and surrogates in making treatment decisions

What is Competency?

“A threshold requirement, imposed by society, for an individual to retain decision making power in a particular activity or set of activities.”

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

Many Types of Capacity

1) Driving2) Living3) Financial4) Medical5) Testamentary

Physician Competency Judgments (%) Normal Controls [n=16]

0

10

20

30

40

50

60

70

80

90

100

MD 1 -Geripsy

MD 2 -Neurologist

MD 3 -Neurologist

MD 4 -Geriatrician

MD 5 -Geriatrician

Marson et al. 1997 JAGS

CompetentIncompetent

Physician Competency Judgments (%) Mild AD Patients [n=29]

0

10

20

30

40

50

60

70

80

90

100

MD 1 -Geripsy

MD 2 -Neurologist

MD 3 -Neurologist

MD 4 -Geriatrician

MD 5 -Geriatrician

Marson et al. 1997 JAGS

Competent

Incompetent

Capacity to Consent to Medical Treatment

Autonomy vs. Protection/Safety

Conceptual Model Based on U.S. Case Law

a. Ability to Understandb. Ability to Appreciatec. Ability to Reasond. Ability to Make a Choice

87 year old retired plumber who has mild dementia (MMSE 22) and type II DM

Renal failure (GFR = 30) CAD (EF 30%) PVD (ABI of .3) Tissue necrosis of the right and left

feet

What Options are Available for Treatment?

1) Keep comfortable2) Vascular evaluation3) Bilateral amputations

Ability to Understand

Comprehend meaning of the information

Repeat in your own words the facts.

Ability to Appreciate

Recognize the facts apply to you Tell me in your own words what

your medical problem is.

Ability to Choose

Repeat in your own words what options are available.

What is your choice and can consistently hold to the same choice.

Ability to Reason

How will your choice affect you? Why have you eliminated the other

choices?

Dealing with Conflict between POA, Resident, and Care-Giver

a) Educationb) Conflict Resolution (Ethics

Committee)

Shivo case is an example of failed conflict resolution.

Not all conflict can be reached with dysfunctional families.

Occasionally courts will be needed for decision-making.

Tests Used for DMC

1) Capacity to Consent to Treatment Instrument (CCTI)

Marson, et al, 1995 3 categories – capable, marginally capable,

incapable2) Assessment of Capacity for Everyday Decision

Making (ACED) www.pennadc.org3) Masonic Village tool

Act 169: Incompetent

Unable to understand, make, and communicate health care decisions, even when provided appropriate information and aids.

A resident may be competent to

make some simple health care decisions, but incompetent to make complex decisions.

Act 169: Option for Health Care Agent (Health Care POA Document)

Health Care Agent has very broad power to make health care decisions.

Health Care Agent can make medical treatment decisions before or after the resident is diagnosed with an end stage medical condition or permanent unconsciousness.

Act 169:Option for Health Care Representative

A resident of sound mind may appoint a Health Care Representative(s).

The process is less formal. May be in writing or by verbal consent Health Care Representative may make

decisions regarding life sustaining treatment only if the resident has an end stage medical condition or is permanently unconscious.

Act 169: Option for DefaultHealth Care Representative

An incompetent resident will have a Default Health Care Representative(s) automatically assigned to make medical treatment decisions.

Health Care Representative may make life sustaining treatment decisions only if the principal has an end stage medical condition or is permanently unconscious.

Act 169: The Default Health Care Representative – Priority Class

Spouse and adult child (children) from prior marriage

Adult child (children) Parent(s) Adult sibling(s) Adult grandchild (grandchildren) Close friend(s)

How Are Health Care Representatives Assigned?

Resident may assign or disqualify one or more Health Care Representatives to make treatment decisions

Resident may adjust or alter the order of priority

Someone from the priority list may step forward and state their intention to be the Health Care Representative

Dispute Resolution Among Health Care Representatives

Follow decisions of highest priority decision-maker

Decision-makers of equal priority must agree on the course of action

Majority decision determines course of action

Dispute Resolution Among Health Care Representatives

If priority class is evenly split: 1. No one else “votes” to break the

tie 2. Ethics Committee involvement 3. Court hearing for appointment of

Guardian of Person

Dispute Resolution Among Health Care Representatives

Medical treatment according to acceptable standards of practice must be started or maintained until a dispute is resolved.

Documentation Issues

What to write When to write How often to write

REFERENCES

Marson et al., Cognitive models that predict physician judgments of capacity to consent to mild Alzheimer’s disease. JAGS 45, 458-464, 1997

Appelbaum,P.S.,Grisso,T. (1988) Assessing patients' capacities to consent to treatment. New England Journal of Medicine, 319,1635-1638. 

  Marson,D.C., Ingram,K.K.et al (1995) Assessing the competency of

patients with Alzheimer's disease under different legal standards. Archives of Neurology, 52, 949-954.

  Moye,J.,Marson,D.C,  Assessment of Decision-Making Capacity in Older

Adults:An Emerging Area of Practice and Research. Psychological Sciences 2007, vol.628, No. 1, 3-11.

PA Act 169: www.pahealthcaredecisions.wetpaint.com/page/ACT+169%3A+Table+of+Parts+%26+Sections