Capacity, consent, risk and clinical decision making James Ogloff, J.D., Ph.D., FAPS Centre for Forensic Behavioural Science Monash University & Forensicare Melbourne, Australia
Mark Twain (1835 1910) I was born with an incurable disease, so was everybody and the knowledge of the fact frightens nobody, damages nobody; but the moment a name is given the disease, the whole thing is changed: fright ensues, and horrible depression, and the life that has learned its sentence is not worth the living. -Letter to Dr. W. W. Baldwin (between Nov. 1903 and June 1904).
1986 a long time ago Bob Hawke was PM; John Cain was premier(both now in their 80s) Hawthorn won the VFL Grand Final (beating Carlton) Crocodile Dundee was released The Russell Street Bombings occurred but the Hoddle Street Massacre wasn t to happen for one year (Julian Knight had just graduated from Melbourne High School) Victoria still had a number of free-standing, large psychiatric hospitals
Evolution of Mental Health Acts Traditionally - paternalistic and beneficent 1959 Involuntary treatment if the patient requires treatment or should be under observation 1986 involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public
Current accepted principles in mental health care Treatment and care should have a recovery focus This principle is articulated Improving Mental Health in Australia and New Zealand (RANZCP) mental health services must place patients at the centre of care and have a recovery focus, not just a focus on clinical outcomes
The Right of People with Mental Illness to Make Treatment Decisions Every human being of adult years and sound mind has a right to determine what should be done with his own body Schloendorff v Society of New York Hospital, 211 NY 125 at 129-130 (1914)
The Right of People with Mental Illness to Make Treatment Decisions Every human being of adult years and sound mindhas a right to determine what should be done with his own body Schloendorff v Society of New York Hospital, 211 NY 125 at 129-130 (1914) That exclusion was lifted in the United States in 1979 in the Boston Hospital case Rogers v Okin, 478 F Supp 1342 (D Mass 1979)
The legal advance was generally not met with approval in the medical community Rotting with their rights on Gutheil, T. G. (1980). In Search of True Freedom: Drug Refusal, Involuntary Medication and Rotting with Your Rights On American Journal of Psychiatry, 137, 327-328. the psychiatric profession is having to learn to deal with lawyers entering into the clinical sphere (p. 327)
The idea took hold Eventually, the psychiatric profession came around to accept a patient s autonomy of choice with regard to their treatment Since then attention has shifted away from the question of the patient s right to refuse treatment to the question of the patient s capacity to make that decision
Current accepted principles in mental health care The principle of equal legal capacity for disabled persons The United Nations Convention on the Rights of Persons with Disabilities (3 May 2008; ratified by the Australian Government on the 17July 2008) Puts in place safeguards relating to the exercise of legal capacity to prevent abuse including measures that respect a person s rights, will and preferences
Current accepted principles in mental health care The United Nations Convention on the Rights of Persons with Disabilities Article 12 requires that mental health legislation supports the presumption that people with disabilities, including mental illnesses, are capable of making their own decisions, and that any other form of decision making must be seen as a measure of last resort This aligns with the RANZCP (2010) position that clinical services provided in the mental health sector should be informed by the evidence and patient preference, and be provided in the least restrictive environment, to maximise patient benefit
Measuring Patients Abilities to Make Treatment Decisions (Grisso & Appelbaum, 1995) Assessed patients abilities to make treatment decisions Compared hospitalised and community patients: schizophrenia, depression, and angina Patients with mental illnesses, and those with more serious symptoms, performed more poorly than others BUT 76% of depressed patients and 48% of those with schizophrenia performed in the adequate range
Mental Capacity In contemporary practice and legislation, involuntary treatment leaves intact the presumption that an individual is mentally capable (i.e., because someone has a mental disorder it does not mean that the person is mentally incapable). The loss of capacity to make treatment decisions cannot be assumed simply because someone is involuntarily hospitalised
Mental Capacity Capacity is no longer viewed as a global characteristic Capacity must be evaluated relative to specific decision-making tasks, as individuals can be competent for one decision but not another For people who are mentally ill, they may be competent at one point in time, but lack competence at other points There is an ongoing obligation upon clinicians to determine whether a patient has the capacity to consent to treatment
Mental Capacity A health care provider s duty to provide medically necessary treatment, does not vitiate the requirement to obtain a patients full and informed consent where the patient is capable of giving consent.
Mental Capacity There is in law a presumption of capacity a rebutable presumption Precise definitions of capacity remain unclear Law on capacity to make decisions rests essentially on two components: Understand the information around the decision making in question Objective cognitive process Appreciate the consequences of making a decision or failing to make a decision Subjective assessment
Mental Capacity The objective of legal policy in respect of decision-making capacity requires a careful balance of autonomy and freedom of choice protecting vulnerable people from making decisions (or failing to make decisions) of which they are incapable
Informed Consent Requirements of Informed Consent: Patients who enter into treatment must do so knowingly, voluntarily, and rationally. Knowingly Must be provided with sufficient information for a reasonable person to be able to make a reasoned decision Voluntarily Not manipulated or forced into treatment beyond their will Rationally Must have the capacity to make an informed, rational choice In mental health care, capacity is essentially an element of informed consent
Informed Consent and Capacity to Make Treatment Decisions MacArthur Competence Assessment Tool well recognised guidelines which contain standard questions that focus on four main areas of treatment capacity: 1) Understanding Relevant Information 2) Appreciation of the situation and consequences 3) Ability to manipulate information rationally 4) Ability to express a choice
MacArthur Competence Assessment Tool 1) Understanding Relevant Information - patient must possess and demonstrate a factual understanding of the proposed treatment; its risks, benefits and alternatives - this requires adequate memory, attention, concentration, and intellect - Example questions for understanding: - Has your doctor or treatment team told you what your condition/diagnosis is? What have they told you? - Here is my understanding of what the risks and benefits of [the treatment] are (provide clear, simple information). Please explain in your own words what I ve said about the benefits and risks of this treatment?
MacArthur Competence Assessment Tool 2) Appreciation of the situation and consequences Ability to appreciate the impact refusing treatment would have on the course of the illness, the capacity to function, and the qualify of life - Example questions for understanding: - Do you think it s possible that this treatment might be of some benefit to you? - Let s review the choices that you have: 1, 2, 3 - Which of these seems best for you? - Can you tell me what makes that seem better than the others?
MacArthur Competence Assessment Tool 3) Ability to manipulate information rationally Involves The patient s ability to weigh the risks and benefits The ability to use the factual information to reach a conclusion that is based on rational thinking Determine whether the patient is unwilling even to consider (acknowledge the possibility of) the treatment because of confused, delusional, or affective states related to mental disorder.
MacArthur Competence Assessment Tool 4) Ability to express a choice Requires the ability to maintain and communicate a stablechoice long enough for them to be implemented Inability to express a choice may be due to concrete reasons (severe symptoms) or more subtle reasons (significant ambivalence or decision making difficulty)
Factors affecting patients decisions It is the clinician s responsibility to ensure that a patient has the capacity to make treatment decisions Treatment refusal may be due to a number of factors apart from incapacity: poor therapeutic alliance inadequate time spent with the patient objection to specific medication side effects previous bad experience with treatment fear of the stigma of receiving psychiatric treatment
Factors affecting patients decisions Skills development Motivational interviewing Adherence therapy Culture change? Role of multidisciplinary team members Alter the traditional doctor-patient relationship (which admittedly has already been changing)
Do changes in the law produce changes in practice? # of involuntary admissions Effects of a New Commitment Law on Involuntary Admissions and Service Utilization Patterns. Luckey, James; Berman, John Law & Human Behavior. 3(3):149-161, September 1979.
Do changes in the law produce changes in practice? Average length of stay Effects of a New Commitment Law on Involuntary Admissions and Service Utilization Patterns. Luckey, James; Berman, John Law & Human Behavior. 3(3):149-161, September 1979.
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