One important area where geriatric psychology intersects with the law is in the area of mental capacity evaluations. Capacity can be defined as the “mental (or cognitive) ability to understand the nature and effects of one’s acts.” Competency, by contrast, is typically considered a purely legal term, and is defined as “duly qualified: having sufficient capacity, ability, or authority.”
People are typically familiar with the idea of competency to stand trial – the most well-known cases are often lurid ones (such as the Jared Lee Loughner case) where defendants have allegedly committed particularly heinous acts and then are found “not guilty by reason of insanity” or more commonly these days, “incompetent to stand trial,” or “guilty but insane.” Competency is generally regarded as a global decision – either you have competency (e.g., to stand trial) or you don’t. Finally, competency involves criminal law; by contrast, in my practice, when I assess someone’s mental faculties, it has direct bearing on civil matters, such as a person’s ability to make a will, capacity to manage his or her finances, or to make medical decisions.
So what is capacity, anyway? I look at it as the ability to exercise informed choice or informed consent. What is consent? I like this:
“Consent is an act of reason and deliberation. A person who possesses and exercises sufficient mental capacity to make an intelligent decision demonstrates consent by performing an act recommended by another. Consent assumes a physical power to act and a reflective, determined, and unencumbered exertion of these powers. It is an act unaffected by fraud, duress, or sometimes even mistake when these factors are not the reason for the consent. Consent is implied in every agreement.”
For example, if I can make a decision to accept a steroid injection for my painful shoulder while weighing the possible benefits (pain control, reduced inflammation) and potential costs (possible infection, elevated blood sugar), and be able articulate how this cost-benefit calculus changes based on the choices I have available, then I am said to exercise informed consent – I have the capacity to decide one way or another. However, if I am unable to demonstrate that I can make this decision while keeping in mind these costs and benefits, then I am said to lack capacity and am unable to exercise informed consent. Instead, I may be able to give assent – which is really just a way of indicating preferences, although not necessarily informed ones.
Dementia (a medical condition that older adults are at elevated risk of developing) is often associated with lack of decisional capacity.
A few myths or misunderstandings about capacity should probably be mentioned. I’ve cribbed some of the more relevant ones from this nice article here (my comments have been added):
Myth #1: If a patient makes a decision that’s against medical advice, then he or she lacks decisional capacity.
Of course, this isn’t true; having decisional capacity doesn’t prevent bad decisions. However, making bad decisions does tend to go along with lack of capacity – but they aren’t synonymous.
Myth #2: There’s no need to assess decision-making capacity unless a patient goes against medical advice.
This isn’t true at all, although unfortunately in practice it may turn out this way at times. For example, you may have a pleasantly demented person as a patient and he may be pleasantly giving assent every time you offer him a test, medicine, or medical procedure. However, when the patient begins to refuse life-saving medical procedures, capacity is suddenly brought up. Obviously, a provider should always be alert to capacity issues, regardless as to whether the patient is pleasantly compliant with medical advice or not.
Myth #3: Decision-making capacity is all or nothing.
Decision-making capacity is not all-or-nothing, it’s on a spectrum. Often clinicians talk about “diminished capacity,” and, moreover, when capacity is lacking to some degree, truly thoughtful clinicians will try to supply recommendations as to how to ameliorate or address capacity issues (e.g., with prompting or cueing, or memory aids.) Moreover, capacity is domain-specific; one can have diminished capacity in one area (say, in the area of independent living capacity) but be completely intact in another (say, such as the capacity to make informed medical decisions on one’s behalf).
Myth #4: Cognitive impairment = no decision-making capacity.
A person with dementia does not necessarily lack capacity, although it’s certainly the case that capacity issues are more often found in dementia sufferers than those without. Although it’s uncommon, I have in the past been referred to assess a person with dementia who I have found to retain decisional capacity in the area of interest, despite the diagnosis.
Myth #5: Lack of decision-making capacity is permanent.
A common cause of diminished capacity and cognitive impairment is delirium, which by its nature can fluctuate and also resolve (presuming the underlying medical cause is addressed). Moreover, dementia can be reversible (and thereby the cause for the impaired decisional capacity in most cases), such as is the case with dementia syndrome of depression.
Finally, state governments even recognize that capacity can be something that is lost and then regained at a later date – which may be one reason why California has the procedure of temporary conservatorship (which differs from permanent conservatorship).
Myth #6: Patients who have not been given relevant information about their condition lack decision-making capacity.
This, of course, is not true. An uninformed patient is not the same as a patient who lacks the ability to make informed decisions. If I supply you with incorrect information in order to (say) make an informed decision about buying a car, and then you purchase the car based on this incorrect information, that doesn’t mean anything about you – that means your car dealer might have been crooked!
Myth #7: All patients with certain psychiatric disorders lack decision-making capacity.
Myth #8: All institutionalized patients lack decision-making capacity.
These myths illustrate the principle that hard-and-fast rules about decisional capacity are often inaccurate. Capacity must be evaluated on a case-by-case basis. Dementia does not mean lack of capacity, and neither does the presence of a major psychiatric illness, whether one is hospitalized or not (and regardless of the circumstances of one’s hospitalization).
Myth #9: Only psychiatrists and psychologists can assess decision-making capacity.
In my opinion, a properly trained psychologist (typically a neuropsychologist, or, in the case of assessing capacity in older adults, a geropsychologist) tends to be best equipped to assess decisional capacity. However, capacity determinations can be made ably by anyone with proper training, although a trier of fact may find evaluations performed by physicians and psychologists more persuasive.
Psychologists use several standardized measures of capacity, typically to address the capacity for medical and financial decision making. I’ve frequently used the Hopemont Capacity Assessment Inventory, which is a semi-structured interview (in other words, there’s a lot of room for limits-testing and follow-up questions built into an otherwise structured examination) that offers interviewees multiple vignettes (stories) about simple and complex financial and medical decision-making scenarios. After presenting these vignettes, interviewees are then asked systematic questions about the costs, benefits, and choices laid out in the vignettes. Interviewees are then asked to apply their own values to these vignettes. Interviewees are then rated for their ability to accurately make use of these concepts (cost, benefit, and choice), and how they use their own values to arrive at their answers, and finally, whether they apply these concepts (and their own values) consistently in the answers that they provide.
A splendid book I have used frequently in my psychological practice is co-written by a team of experts convened by the American Psychological Association and the American Bar Association – entitled “Assessment of Older Adults with Diminished Capacity – A Psychologists Handbook” (the attorney’s edition can be found here). I like it because it (properly) makes the issue of capacity assessment in older adults even more complex.
Like I said earlier, capacity must be determined on a case-by-case basis, taking into account not only the individual, but the nature of the decision to be made – again, capacity is domain-specific. The handbook offers advice for assessing capacity for various domains (or tasks), such as:
- Donative or testamentary capacity (making a will)
- Medical decision-making capacity
- Sexual consent capacity
- Driving capacity
- Capacity to live independently
And this isn’t even an exhaustive list! Hope this (mildly disjointed) discussion was helpful. So, again, major take-home messages:
- Capacity is not all-or-nothing, it’s not something you either globally have or don’t – capacity is on a spectrum
- Capacity is domain-specific, you can have diminished capacity or substantially lack capacity in one domain, but retain it in another
- The fact a patient has dementia, or has a major psychiatric illness, or is institutionalized, tells you very little about their decisionmaking capacity.