Competence

Eric Diu

7th April 2010

Competence

the quality of being competent; adequacy; possession of

required skill, knowledge, qualification, or capacity

As adjective:

1. having sufficient skill or knowledge

2. suitable or sufficient for the purpose

3. having valid legal authority

Collins Essential English Dictionary 2nd Edition 2006 © HarperCollins Publishers 2004, 2006

CASE 1: Mrs RB is an 86 year old widow who lives alone. Referred by her GP with concern of her memory and ability to manage at home.

She is generally vague and recently brings in council rate statements and land valuation statements. She worries about being evicted and thought that the land valuation amount represent amount she owes.

She still drives, appears mildly malnourished. Her GP also noted some deterioration of personal hygiene with patchy soiling on her clothes. On initial contact over phone she tells ACAT there is no need for a visit, however she later agrees after GP’s encouragement.

On initial visit, her house is in obvious state of disrepair, with moldy walls and no working lights in most rooms. The house is malodorous, likely due to her pet dog urinating inside the house. There is one half eaten barbeque chicken in the fridge, no fruit or vegetables.

She has ?delusional idea about neighbor’s plot to take her house (pointing to their power lines which run across her front yard as evidence). She brings out a small card board box containing several letters dating back to 1980s regarding council rates for her current home plus another regional property…..

CASE 2: Mr KT is a 61 y.o. man with subacute functional decline, reviewed by neurologist and thought possibly suffering from yet undetermined neurodegenerative / Parkinsonian plus syndrome. Possibility of Multisystem atrophy entertained.

He previously lived with a defacto partner in a DOH unit. Following admission to hospital for fall and urinary tract infection there was further functional decline and he was discharged to his brother’s care, with hostel approval as backup plan.

After two months living with his brother he was transferred to hostel and shortly after upgraded to nursing home.

His previous partner later found out his progress but was barred from visiting him at the nursing home. Heated arguments and personal accusations follows regarding his need for nursing home and both parties obtained advice from the local ACAT team and the guardianship board. The nursing home manager does not know what to do

A semi-urgent community medical assessment was arranged but the partner requested gate leave 2 day prior to Ax, brought him back, took him out again the next morning and left a GP letter at the front desk….

JAMA 2006; 296:691-697

WHAT IS CAPACITY?

•“Ability to understand and appreciate the contexts and decisions, not the actual outcomes of the choices made.” (Darzins 2000)

Capacity: key concept

A social construct that underpins people’s rights to make autonomous decisions about their own affairs (make choices of one’s own life), while establishing a mechanism through which the need for substitute decision making process can be determined

deals with the process of decision making and does not depend upon the actual choices made or their functional outcomes

determined by whether individuals can understand and appreciate information, not whether they can perform tasks

It is not determined by people’s performance in their day to day activities, such that the effect of individual’s choices on their ability to thrive has no bearing on the definition

Ultimately the ruling or judgment of capacity is a decision made in a court of law or by representative of the court.

Concept of freedom vs protectionism, risk to self and risk to others

CASE 3:

Mrs KL lives at home with grandson who is studying at university.

Referred by daughter with recent personality change, refusing to listen to her to have showers, more easily agitated and physically aggressive (pinching her once).

Her sodium level was 124 on admission and she may have a urinary tract infection, she use a frame and is less steady than usual. She is fully oriented, can obey three step commands. Conversation is generally coherent, but tangential and grandiose, almost to the point of being hypomanic.

(Her daughter tells you that she cannot be allowed to return home upon discharge).

1. Legal standard / NSW Attorney general / Society’s view:

a.Presumption of capacity above a certain age – 16

b.Onus is on the party that alleges someone incapacitated to prove otherwise (Analogy of innocent until proven otherwise)

c.Seek evidence of incapacity and failing that let the presumption of capacity prevail.

d.Concept of people’s right to (knowingly) making ‘poor’ choices

e.Concept of being capable but uninformed – their situation, their choices, the likely consequences. People must be adequately informed , and given every opportunity to learn about the decision at hand

2. Other key features:

a. Global domain specific decision & context specific

Five Major domains:

• Personal care decision

• Health care decision

• Property and finance decision

• Advance directives

• Making a will and granting a power of attorney

2. Other key features:

b. Simple complex (not referring to seriousness of consequences)

• Insulin error hypo’s can die

• Million dollar assets accountant / trust in place feel like treating friend on an all expense paid cruise holiday

CASE 4:

Ms HD is an 83 years old Polish woman. She has been living in the same DOH unit for the past 30 years, widowed some 20 years ago, has no children or relatives.

She has mildly impaired vision and severely impaired hearing. In the last twelve months she had one admission to hospital with a fall.

She is supported at home from CACP and her neighbors check on her informally. Her home is very cluttered, there is concern of her cooking and nutrition, and her mobility.

Her electricity bill was overdue and almost cut off 4 weeks ago. She seems to have no money left for food. CACP recently had to give her $50 to pay for groceries and she did not return the change.

She has been vague but also secretive about a possible inheritance or lottery win, frequently asks to be taken to post “important letters” to France regarding this.

(CACP staff question her safety and ability to live alone).

2. Other key features:

a. incapacity is sometimes or often reversible

The patient with low sodium who pinched her daughter:

She was thought to have grandiose delusion when mentioning with heavy accent how she used to live like a Queen in Spain (this was later confirmed as true - as part of the then royal family)

So you live at home with your grandson? She promptly correct the statement, “HEEE… lives with me … Innn my house”.

On initial OT self-care assessment she is disorganised and took over 40min to dress her upper body (partly because she keep talking and partly because she just don’t seems able to follow the steps). She was deemed ‘functioning at high level care needs – no OT goals identified’.

At 3rd week … her general affect not changed much BUT …

2. Summary key features:

a. Global domain specific decision & context specific

b. Simple complex (not referring to seriousness of consequences)

c. incapacity is sometimes reversible

d. the majority of apparently incapable decisions are made by capable people ?

e. It is not beyond doubt that substitute decision makers always make better decision than incapable people (dementia carer for developmentally delay persons)

Assessment

Who can assess capacity?

a.No strict criteria on who can and who cannot assess decision making capacity.

b.Ultimately it is left to the discretion of the courts whether to accept the evidence of the people who gathered them.

c.Commonly professional in the relevant fields are involved:i.Lawyers making willsii.Bank managers eg. Large sum withdrawal etciii.Doctors medical consent, and often called to provide opinions about their patient’s capacity on non-medical decisions

What is the role of Health care professionals in regards to capacity assessments?

Limited to providing testimony as an expert witnesses to the courts

Published 2008

Am J Geriatr Psychiatry 15:2, February 2007

Physician assessment of patient competenceMarkson et al. J Am Geriatr Soc 1994; 42(10):1974-80

Using mail survey with specific questions about a patient scenario and general questions about the law.

Adapted from a court case that involved an elderly woman’s refusing life saving surgery.

Respondent were asked whether the patient was competent, whom they would consult, and how they would respond.

823(41%) internist, surgeons, psychiatrists responded. Before the psychiatrist’s opinion 58% felt the patient is competent, 92% would consult a psychiatrist, only 17% would go to court.

After knowing the Psychiatrist’s opinion, only 30% thought she was competent and 55% would go to court.

89% knew the correct standard for competence, but often apply it incorrectly in scenario questions, and most incorrectly responded that conditions such as dementia and psychosis establish incompetence.

Cognitive models that predict physician judgments of capacity to consent in mild Alzheimer’s diseaseMarson DC et al. J Am Geriatr Soc 1997; 45:458-464

29 mild AD subjects. Five physicians review video assessment independently. Poor overall agreement rate of 56%. Hypothetical decision whether to pursue medical or surgical treatment of CAD.

Cognitive models of physicians’ legal standard and personal judgments of competency in patients with Alzheimer’s diseaseMarson DC et al. J Am Geriatr Soc 2000; 48:911-918

Follow-up study with intervention to same design (education and structured assessment). This time physician were education on how to assess the five standards of competency, then rate if subject achieve each standard before deciding final opinion of competency. 76% agreement on personal competency judgments. (Kappa 0.48). Understanding the treatment situation and choice is the legal standard that is associated most closely with a physician’s judgment of competency. 5% of the controls were judged incompetent.

1.The six steps – (Darzins 2000)

(however no validated method of scoring / setting threshold)

a.Valid trigger present – to justify need for assessment ( rather than assessing their capacity to consent to assessment) - otherwise don’t waste your time

b.Co-operation – engage the person

c.Info gathering – to describe the contexts / choices / consequences – the person’s value, goals and beliefs (what is most important or of greatest concern to them).

d.Education

e.Assessment - communication / timing / environment

f.Acting on outcome

Initial briefing:

Their capacity has been called into question by a person according to a broader community standard, and that either they themselves or others are at risk due to this (eg. kitchen fire, fall and injury)

Capacity assessments will proceed regardless and they are encouraged to participate

It is in their best interests to be involved and provide evidence so that the best possible judgments can be made

A defined process will be followed and the capacity assessment process is described

If the assessments lead to a determination of capacity, they will continue to make decisions

If as a result of the assessments they are deemed incapable, substitute decision makers will be appointed to make decisions for them.

1.The first two of the six steps – (Darzins 2000)

a.Valid trigger present – to justify need for assessment (rather than assessing their capacity to consent to assessment) - otherwise don’t waste your time

b.Info gathering – to describe the contexts / choices / consequences – the person’s value, goals and beliefs (what is most important or of greatest concern to them).

(A Sensitive topic . Media beat up. TV. Talk back radio.)

(Today tonight – finance / change of wills etc)

Graeme WYLIE - R v Justins

Two women, Shirley Justins and Caren Jennings, recently stood trial over the death of Graeme Wylie, a man suffering from Alzheimer’s disease. Jenning, a close friend of Wylie, travelled to Mexico to obtain the drug Nembutal, a drug that is illegal in Australia. The court found that because of his advanced dementia Wylie no longer had the capacity to make a decision to end his own life.

Wylie’s long-term partner, Shirley Justins, was found guilty of manslaughter, while Caren Jenning was found guilty of being an accessory to manslaughter, and of importing Nembutal. Justins was sentenced to 22 months of weekend detention. Before the sentence was handed down Caren Jenning, aged 75, took her own life using the same drug, Nembuta

Police prosecutor Justin Watson said Wylie's will on his 2.5m estate had been changed to benefit Ms Justins shortly before his death. Sergeant Watson said the changes meant Ms Justins would receive more funds from the will while the deceased's two daughters would receive less.

Seven to pay $240,000 for Today Tonight libel

Sydney morning Herald, July 9, 2009

The Seven Network has been ordered to pay $240,000 in defamation damages to a mortgage broker falsely portrayed as having fleeced $1 million from a dementia patient.

“She kept forgetting, so this mortgage broker took everything she had…”

In awarding the damages to Peter Mahommed today, Justice David Kirby said the elderly woman had not suffered from dementia and was a "practised fraudster".

ASSESSMENT:

SPECIAL POINTS TO REMEMBER

Special points:

CommunicatonFluctuationDenialdelusionDepression

Special points:

CommunicationFluctuationDenialdelusionDepression

Special points:

CommunicationFluctuationDenialdelusionDepression

Special points:

CommunicationFluctuationDenialDelusionDepression

Special points:

CommunicationFluctuationDenialdelusionDepression

FAQ: Legal legislation you need to know

Internal Medicine Journal 2005; 35: 482–487

Guardianship Act 1987Section 4: General principles

It is the duty of everyone exercising functions under this Act to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible

(c) such persons should be encouraged, as far as possible, to live a normal life in the community

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs

(g) such persons should be protected from neglect, abuse and exploitation

(h) the community should be encouraged to apply and promote these principles.

Guardianship Act 1987

Part 2 – Appointment of enduring guardians

Part 3 – Financial management

Part 4 – Directions to guardians

Part 5 – Medical and dental treatment

Part 6 – The Guardianship Tribunal

Part 7 – The Public Guardian

Enduring GuardianSomeone you legally appoint when you have capacity, to make personal decisions for you if you lose capacity.

Enduring Power of AttorneyA legal document to appoint an attorney or attorneys who can act on your behalf in financial matters underyour instruction while you have capacity or without your instruction if you lose capacity.

General Power of AttorneyIf you lose capacity a general power of attorney ceases to have effect.

Protected person means a person whose estate (or part of whose estate) is subject to a financial management order that is in force.

Guardianship Act 1987

Section 6E: Functions of enduring guardians

An enduring guardian, while the appointment has effect, may exercise the following functions:

(a) deciding the place (such as a specific nursing home, or the appointor's own home) in which the person is to live,

(b) deciding the health care that the person is to receive,

(c) deciding the other kinds of personal services that the person is to receive,

(d) giving consent for medical or dental treatment on behalf of the person,

(e) any other function relating to the person that is specified in the instrument.

When and how enduring guardianship becomes activated?

The guardianship act 1987Section 6N: Evidence as to appointor's capacity

In any proceedings in which the question of whether, on a particular day or during a particular period, the appointor of an enduring guardian was a person in need of a guardian is in issue, the certificate of a medical practitioner to the effect that the appointor was, on that day or during that period, totally or partially incapable of managing his or her person because of a disability is evidence of the fact that the appointor was a person in need of a guardian.

Who is on the Tribunal?

For the majority of matters the Tribunal sits in panels of three members with one member from each category (legal, professional and community members) Very occasionally four members will sit. No more than five can sit on a panel.

Applications for medical consent, reviews of guardianship and financial management orders can be heard by fewer than three members.

The presiding member is an Australian lawyer with at least seven years' experience.

The professional member is a person such as a doctor, psychologist or social worker who has experience treating and assessing people with disabilities.

The community member either works with people with disabilities or has personal or familial experience of people with disabilities.

Names the guardian who has been appointed by the Tribunal, the length of their appointment and their functions.

The Public Guardian is a substitute decision maker, not a substitute caregiver or case manager.

How long does an order last for?

For first time guardianship applications, the Tribunal can make an order for up to three years. However, most initial guardianship orders are made for 12 months or less.

The Tribunal will hold another hearing to review the order near the time it is due to end. On these occasions, the Tribunal may make an order up to three years or, in certain circumstances, up to five years.

A financial management order lasts indefinitely unless the Tribunal specifies in the order that it is to be reviewed within a particular timeframe. Financial management orders are not automatically reviewed. However, anyone who has a genuine concern for the welfare of the person can apply at any time for the order to be reviewed if they have sufficient grounds for doing so. If the Tribunal adjourns a financial management application to seek further information about the person's capability to manage their finances, it can make an interim order lasting up to six months.

Substitute decision maker & Substitute consent

Legal order for “person responsible”

Urgent / Minor / major / special medical procedures

Who cannot give consent to their own treatment?Provisions of Part 5 of the Guardianship Act

A person (16 years and above) cannot give valid consent to their own treatment if they:

1. cannot understand the nature and effects of the proposed treatment; or

2. cannot communicate whether or not they consent to the treatment.

The Guardianship Act also establishes: 1. who can give valid substitute consent on behalf of a patient

who is incapable of consenting (ie. who can be a substitute decision maker)

2. when treatment can occur without consent 3. the penalties for practitioners who fail to obtain a substitute

consent when required.

Who is a substitute decision maker?

A substitute decision maker is someone who has legal authority to make decisions on behalf of someone else. (in legal standing as if the person is making the decision himself)

A substitute decision maker can be:

1. the person responsible

2. a guardian appointed with a medical and dental consent function

3. the Guardianship Tribunal.

So who is the person responsible?

Who is the person responsible?

A person responsible is not necessarily the patient's next of kin.

There is a hierarchy of people who can be the person responsible. They are (in this order):

1 A guardian (including an enduring guardian) who has the function of consenting to medical and dental treatments.

2 A spouse or de facto spouse or partner where there is a close, continuing relationship.

3 A carer who provides or arranges for domestic support on a regular basis and is unpaid. (If the person is in residential care, then the carer before the person went into residential care.)

4 A close personal friend or close relative where there is both a close personal relationship, frequent personal contact and a personal interest in the patient's welfare, on an unpaid basis. (grey area: boarding house manager)

Scenario:

A patient admitted to Concord psychogeriatric ward 17 with dementia and anxiety disorder has significant dental decay, symptomatic peri-odontal abscess and broken teeth that need to be extracted.

She is usually anxious and say no to almost everything. But her mouth is sore and she is eating less.

Her daughter who lives with her the last 10 years agrees to the procedure as it is obviously for her best interest.

To obtain medical or dental consent from the Guardianship Tribunal:

Fill in a consent to medical and dental treatment application form.

Fax or mail the application to the Guardianship Tribunal.

The Guardianship Tribunal will convene a hearing and contact the treating practitioner. (usually by phone, as soon as is required).

The Guardianship Tribunal will give or withhold consent at the hearing and will advise the applicant.

The applicant and patient will receive a written copy of the decision and the reasons for it.

Be aware of relevant legislations (and changes)

Remember key concepts

NSW attorney general’s Capacity Toolkit booklet

No validated method

However consider using a semi-structured assessment process such as ‘the six step capacity assessment process’

Take time and care to conduct & record assessment

Additional references:

Who can decides? A six step capacity assessment process Darzins P, Molloy, W & Strang, D 2001 Adelaide: Memory Australia Press.

Perkins C. Assessing capacity NZFP 2002;29(1);41-43

Appelbaum PS. Assessing patient’s capacities to consent to treatment NEJM 1988;319(25);1635-38

Bennett H. et al. Guardianship and financial management legislation: what doctors in aged care need to knowIMJ 2005; 35: 482–487

NSW Guardianship Tribunal www.gt.nsw.gov.au

Office of Public Guardian www.lawlink.nsw.gov.au/opg

Public Trustee www.pt.nsw.gov.au