The Complexities of Mental Capacity:
A Key Elder Rights Issues
2012 IL Elder Rights Conference
Holly Ramsey-Klawsnik, PhD© 2012 Ramsey-Klawsnik
All Rights Reserved
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Discussion
• Complexities of mental capacity• Challenges in screening capacity • Possible inaccurate assumptions• Role of physical & mental illness,
disability, developmental disabilities, dementia, neglect and abuse
• Cultural issues • Gentle, respectful methods for screening• Using screening tests
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Mental Capacity
• An evolving clinical and legal concept
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Clinically
• An individual– Has capacity – Has diminished capacity or– Lacks capacity
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Legally
• An individual has or lacks capacity
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Current Thinking
• Capacities NOT capacity
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Capacities
• Decisional - ability to make decision
• Executional - ability to execute
• May be able to make decision but not personally execute
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Abilities/Domains• Provide medical consent• Consent to APS intervention• Make financial decisions• Manage finances• Engage in contracts/marry• Make a sound will• Drive• Consent to sexual activity• Manage ADLs or IADLs
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Current Thinking
• Evaluations should assess specific domains
• Limited court orders only for impaired domain(s)
• Avoid global descriptions when only limited impairments
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Procedures for Assessing
• Interview, observe & interact• Obtain collateral data• Formal tests– Functional assessment– Physical exam with lab tests– Psychological, including I.Q.– Neuropsychological– Medical tests of brain functioning– Psychiatric
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Concerns
Capacity lack may be temporary
Neglect/abuse can decrease capacity
Disability can mask capacity
Brief, crude testing can be harmful
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Between a Rock & a Hard Place
• APS workers expected to assess/screen• Not able to determine capacity• Critical decisions hinge on capacity• Difficult to obtain formal testing• “Quickie” tests can lead to false readings• Problems with 1x assessment
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Mental Illness & Capacity
• Most with dx MI have capacity
• Major MI can cause psychosis & temporary incapacity
• Effect of psych meds + or -
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Case Example
• Does this woman lack capacity?
• What is the evidence that she does or does not have capacity?
• How would you further assess?
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Mrs. T.
• Police referred “harmless but deranged” 79 yo widow to APS, repeat “nuisance calls”
• Lives alone – children out of area
• Calls police: “invaders” in her attic
• No heat due to no gas
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Mrs. T.
• Owned home in middle-class area• Home clean, well-maintained• Has raised 4 kids, worked in office• Independent in ADLs & IADLs• Hygiene good, memory intact• Drives, does errands• Adamant little people in attic stealing• Appeared paranoid, delusional
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Physical Disability & Capacity
• Many with physical disabilities mistaken as incapacitated
• CP, MS, Parkinson's Disease, Lou Gehrig Disease (ALS), aphasia
• Case example: Harold, has CP
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Need with Physical Disabilities
• Communication remedies
• Time, observation, interaction
• Background & collateral info
• May need specialists to assess
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Disease/Injury
• Illness and treatment affect capacity
• Infections, fluid in lungs, etc.
• Meds can alter cognition
• Post-surgery or trauma NOT time to assess capacity
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Mrs. N.
• 74 y.o. independent widow
• Fell, broke hip, surgery resulted
• MD used MMSE one day post-op
• Mrs. N. failed
• MD diagnosed & charted dementia
• Outcome…
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Developmental Disabilities
• Include intellectual disabilities
• I.Q. of 70 or below
• Many with DD have capacity
• Specific testing required
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Dementia & Capacity
• Dementia typically progressive
• Capacity retained early-mid stages
• Abilities tend to fluctuate
• Need multiple reads at various times
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Dementia Diagnosis Requires• Multiple cognitive deficits, including memory
impairment• Gradual onset• At least one of:
– Aphasia – language disorder– Apraxia – motor impairment– Agnosia – failure to recognize items
• Disturbance in executive functioning– Planning - organizing– Sequencing - abstracting
• Must be decline & severe impairment
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Caution re: Dementia Dx
• Dementia dx should not be interpreted as person not accurate reporter
• Abuse & neglect disclosures should NOT be discredited d/t dementia
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Neglectful Care
• Can profoundly affect cognition– Malnutrition – Dehydration– Untreated illness, infection– Lack of sleep– Over- under-medication– Isolation
• Much caution needed in assessing
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Case: Mr. W.
• Arrived at ER in poor condition• Disclosed abuse & neglect to nurse• APS report made• Admitted then displayed confusion• Disclosures dismissed, dementia
diagnosed• Transferred to LTC• Outcome…
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Abuse & Capacity
• Diminished capacity increases abuse risk
• Abuse can cause cognitive problems– Illness, injury, trauma, loss, etc.
• Cognitive limitations can result in being discredited when report actual abuse
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Deliberate Interference
• Abuser may hinder victim abilities to exploit
• Over, under-drug, isolate, disorient, deny adaptive devices
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Case: Lady From Georgia
• Moved to Ohio at son’s urging• There, imprisoned in his home• Isolated, exploited, abused, neglected• Drugged,presented as self-neglecting• Crude assessment by MDs• Son obtained guardianship • FE, neglect, abuse increased
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Screening Capacity
• Clinically complex, especially when– Abilities fluctuate– Communication barriers exist
• Limitations with brief tests
• Impact on client and rapport
• Risk of false positive/negatives
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Consider
• When assessing cognitive abilities…
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Culture & Language
• Culture, speech & language of both client and tester impact test accuracy
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Consider
• Am I seeing client at his/her worst?
• Am I seeing client at his/her best?
• Is the functioning typical?
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Consider - Is Client
Hungry, thirsty, sick, drugged, sleep deprived, fearful, in pain or crisis, grieving, acutely anxious, preoccupied?
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If Person Not at Baseline
• Functioning below normal displayed
• Cognitive assessment inappropriate
• Intervention may be needed
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Consider:
• Have I build rapport?
• Have I explained my role?
• Have I sought consent?
• Am I communicating clearly?
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Consider:
• Is situation conducive to assessing?
• Physical conditions
• Privacy
• Safety
• Are there urgent unmet needs?
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Key
• Observation and interaction over time necessary to fully assess esp. when disabilities exist
• Also need reliable history
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Use Collateral Data
• Beware tainted reports
• Obtain multiple opinions
• Obtain basis for opinions
• Records may be inaccurate
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Testing
• No standard test battery for evals
• Must select appropriate tests
• APA/ABA urge: “functional assessments that describe task-specific deficits”
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Evaluation Problems
• Many clinicians not trained to test functional & cognitive ability
• Testing that is too brief or crude• Using the wrong measures• Relying upon false data• Language/communication barriers• Testing client in crisis or distress• Global conclusions from limited data
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Natural Assessment
• Observe, interview, interact
• Observation and open-ended questions best practice
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Natural Opportunities
• Observe person & environment
• Does appearance suggest A&O?
• Clues in client’s environment
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Natural Opportunities
• Gentle, non-threatening conversation • Can client converse?– Understand what is said – Process & hold thoughts– Formulate responsive answers
• Assess memory through asking history• Use environmental clues– Photos, hobbies, abilities, needs, habits
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Other Opportunities
• Client sign & date forms
• Observe client do task– Are steps planned?– Is behavior meaningful?– Is desired goal reached?
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Questions When Tests Used
• Is tool validated, normed, standarized, acceptable measure?
• Is tester qualified, trained & experienced to administer & score this test, authorized to use?
• Is tester in a role in which testing is appropriate?
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Testing Questions Con’t
• Is elder in situation in which he/she can perform up to ability?
• Has tester built rapport, used conversation to engage and assess, obtained background info & permission to test?
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Testing Questions Con’t
• Has effective communication been established between tester & elder?
• Is there clear purpose & reason for the test?
• How will the results be used?
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Summary
• Use great caution in drawing conclusions re: mental capacity
• Consider: – Conditions under which capacity tested– How tested– Possible ulterior motives
• Assess at multiple times, use multiple methods
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Do
• Observe & document client statements, appearance, behaviors, environment, abilities
• Avoid rash conclusions • Avoid statements re: cause of problems• When capacity in question, seek quality
formal evaluation• Advocate for clients unfairly judged
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Thank you!
• And Good Luck in serving elders!
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