Download The Assessment of Decision Making Capacity After Acquired Brain

THE ASSESSMENT OF
DECISION MAKING
CAPACITY AFTER
ACQUIRED BRAIN INJURY:
LEGAL AND
NEUROPSYCHOLOGICAL
PERSPECTIVES
June 29, 2015
Who We Were…
Who We Are…
Madeline DiPasquale, PhD
Clinical Neuropsychologist
Supervisor, Ambulatory Programs
MossRehab- Drucker Brain Injury Center
Tony Baratta, Esquire
Attorney
Baratta, Russell, and Baratta
Goals and Objectives





Define and distinguish between the terms competency and
capacity.
Understand the legal procedure to obtain guardianship and fulfill
legal responsibilities to the Court thereafter
Determine three cognitive and functional constructs evaluated as
part of a capacity evaluation. Identify three evaluation methods
used to help determine capacity.
Determine if guardianship proceedings are appropriate.
Identify two indicators for proceeding with guardianship
and two steps in the process for obtaining guardianship.
Why Discuss This Topic?

Unique neuropsychological issues after brain injury
Definitions of Terms
Definition of Terms

Power of Attorney

Springing Power of Attorney

Health Care Directive/Living Will

Guardianship
Health-Care Decision Making
Pennsylvania Act 169
The Elements of Health Care
Decision-Making
●
Pennsylvania Act 169 designed to address end of life decisions
(this is NOT GUARDIANSHIP)
●
Definitions of incompetence and competence define three critical
elements in sound health care decision making:
● UNDERSTANDING the risks, benefits, and alternatives;
● An individual must be able to MAKE a decision; and
● COMMUNICATE the decision to any other person(with technical
assistance).
●
If the ability to perform any of these decision elements is absent, the
individual is incompetent to make that specific decision. When all three
are present, the person is competent and his choice should be
respected.
● Decision-making can be transient – competent to make some decisions
but not others
Health Care Agents and
Representatives
● A health care power of attorney may vest an
agent with authority even when the patient is
competent (designated before change in
health status)
● A health care representative may make health care
decisions for an incompetent adult patient who has
no controlling living will, healthcare power of
attorney, or guardian of the person (after change in
health status)
Healthcare Agents and
Representatives
●Unless a patient designated otherwise, the
patient’s health care representative will be
determined by a statutory list that generally
gives priority in the following order:
●
Spouse and adult child who is not the child
of the spouse
● Adult child
● Parent
● Adult sibling
● Adult grandchild
● Close friend
Guardianship
This is serious business…
●“Determination of
incompetence represents one
of the most profound
infringements of a citizen’s
rights”
(Grisso and Applebaum, 1998)
Competency and Capacity:
Complimentary Terms
Competency
Capacity
● Competency is a legal
● Capacity is what we
construct
● Competency is always
assumed unless
proven otherwise
assess
● It relates to a person’s
ability to perform their
life role
● “Right to folly”- people
have the right to make
a bad decision
What We Do:
Risk
Assessment
What’s the risk/benefit to the person
making the decision?
Areas for Determining Capacity
● Testamentary
● Donative
● Contractual
● Convey Real Property
● Execute a Durable Power of Attorney
● Consent to medical care
● Execute an Advance Directive
● Consent to sexual relations
● Capacity to drive
Guardianship Petitions
Two Main Areas for Guardianship
● Capacity to make decisions about your own
personal protection:
● Protection of person
● Protection of the estate
The Process for Appointing a Guardian




Filing a petition
Serving and explaining the petition
Appointment of an attorney for the person with
brain injury
Hearing before an Orphans Court Judge
 Evidence

presented
Judge issues an Order
The Neuropsychological Assessment
of Capacity
What Do We Evaluate When We
Assess Risk?
Understanding: the ability to understand
diagnostic and treatment information
Appreciation: relate treatment information to
one’s own situation
Reasoning: to rationally evaluate treatment
alternatives, comparing risks and benefits
and their impact
Expressing a choice: communicating a
decision
The CEO of SELF
The Neuropsychological
Assessment of Capacity
● The assessment should always
consider:
●Medical Condition
●Cognitive Functioning
●Daily Functioning
The Neuropsychological
Assessment of Capacity
●Values
●Social history
●Family history
●Cultural background
The Neuropsychological
Assessment of Capacity
●Risk of harm
●Level of supervision
●Means to enhance capacity
How to Assess Capacity
● What’s the question?
● The evaluation must be tailored to answer the
question for a specific capacity: finances,
medical decision-making, etc.
● Review of legal standards
● What are the State’s requirements for
determining capacity?
● Does the Court have any specific requests?
How To Assess Capacity
●Clinical Interview
● Patient, family members, guardians
●Standardized Assessments
● Measures of orientation, intellectual functioning,
attention, working memory, learning and memory,
language skills, visuo-spatial skills, motor skills, executive
functioning, emotional functioning
●Functional Assessments
● Bill paying, medication management, making
appointments, route finding, household management
Neuropsychological and Cognitive Constructs
to Assess for Capacity and Competence
● Effort/Symptom validity
● Emotional functioning
● Intellectual functioning
● Attention and concentration
● Verbal skills and language
● Learning and memory
● Non-verbal/visuospatial skills
● Executive functioning
● Motor skills
Standardized Assessment Tools
●Symptom and Performance Validity
●Intellectual functioning and academic
achievement
●Attention, concentration, and working memory
●Visual-spatial skills
●Language processing
●Learning and memory
●Motor functioning
●Executive functioning
●Emotional functioning
Functional Assessments
Route Finding/Functional Mobility Task
Medication Management Task
Family Schedule
Personal Business and Finance Task
Situational Problem Solving Scenarios
Example: Situational Problem Solving

You get a phone call from a travel agency that tells
you that you have won a free vacation to the
Bahamas, for 3 nights and 4 days. All that you have
to do is listen to a 2 hour promotional presentation
and respond to a questionnaire. It will only cost you
the taxes and shipping and handling for your
promotional video and your vacation package,
which comes out to $124.99. Do you accept this
offer and pay the fee? Why or why not?
Currently Available Standardized
Functional Assessments
 Texas
Functional Living Scale
 UCSD Performance-Based Skills Assessment
 Social Skills Performance Assessment
 Medication Management Ability Assessment
 Executive Function Performance Test
 MacArthur Competence Assessment Tool for
Treatment
The MacArthur Competence Assessment ToolTreatment (MacCAT-T)
● Utilizes a structured interview to assess the four
legal standards (Understanding, Appreciation,
Reasoning, Expressing a Choice)
● Assesses decision making abilities relative for
judgments about patients’ competence to consent to
treatment.
The MacArthur Competence Assessment ToolTreatment (MacCAT-T)
Responsibilities of the Clinician:
● Diagnosis and its features of diagnosis
● Disease course
● Recommended treatment
● Features of recommended treatment
● Benefits and risks of recommended treatment
● Alternative treatments
The MacArthur Competence Assessment ToolTreatment (MacCAT-T)
● Disclose- Clinician describes the disorder and
features
● Inquire- What do they understand about the
information you presented?
● Probe- If any information is omitted or incorrect
during inquiry, discuss and review
● Re-Disclose and Re-Inquire- Explain and review
again, especially if patient’s omits or
misunderstands
Case Examples
Case 1: Injury History
● 35 year old AA male injured 10.10.2011 as the
result of a fall of 20 to 30 feet from a cherrypicker. After the fall the unit collapsed onto the
patient.
● Neuroradiological studies identified
subarachnoid hemorrhage, intraventricular
hemorrhage, right superior frontal gyrus
contusion, and diffuse axonal injury. C4-5
central disc protrusion, non-displaced L5
transverse process, and hip fractures
● Course of inpatient acute brain injury
rehabilitation and outpatient services
Injury History Continued
●Has been living at home. Recently admitted to
inpatient, episode of violence on 9.9.2014. Restraining
order in place. Referred for residential brain injury
rehab- patient does not want to go
●Wife is current guardian of person and finances.
Patient believes he is able to manage his own decisions
and was particularly emphatic that he can manage his
own finances
●Medications: Omeprazle (40mg/day), Abilify
(2mg/day), Risperdal, 1mg/day), Lithium (450mg/day),
Buspirone (12mg, Q12)
Case 1: Social History
● Married with two children (married after injury)
● Wife is guardian of person and finances
● History of substance misuse (premorbid and post-
injury)
● Currently driving (illegally)
● Episode of violence in home with arrest
● Agitation and anger
Social History Continued
● History of placement in “home for boys” at age 13
● Sexually assaulted
Questions for the Evaluation
● The client wants to be his own guardian
● Can he make his own medical decisions?
● Can he manage his finances?
● Is he safe in his own home? Is his family safe
with him at home?
Evaluation Methods and Tools
● 4 hours to complete evaluation
● Records review
● Clinical interview
● MacCAT-T
● Personality Assessment Inventory
● Repeatable Battery for Neuropsychological
Assessment (RBANS-Form B)
● Trails A and B
● Wisconsin Card Sorting Test
A Quick Statistics Lesson
Test Findings
● Trials A and B: 1st percentile
● Wisconsin Card Sorting Test:
● Maintain Mental Set: 1st percentile
● Categories Complete (2): 2-5th percentile
● Perseverative Errors : 1st percentile
● Non-perseverative errors: 23rd percentile
● Total Errors: 6th percentile
● Conceptual Level Responses: 9th percentile
Emotional Functioning
● Evidence of positive impression management
● Denied any history or issue with alcohol or
substance misuse
● “Two blunts per day, but I’m no weed head”
● Expansive mood, hostile and irritable
● Impulsive, resentful, high energy
● May meet criteria for mania or hypomania
● Inflated sense of self-esteem, grandiose,
delusional beliefs o special skills
● Risk taker
Results: RBANS
Cognitive Domain Percentile
Range
Immediate Memory
<1st
Profoundly Impaired
Visuospatial/
Construcitonal
2nd
Profoundly Impaired
Language
<1st
Profoundly Impaired
Attention
<1st
Profoundly Impaired
Delayed Memory
<1st
Profoundly Impaired
Total Score
<1st
Profoundly Impaired
Results: MacCAT-T
Disclosure
Patient Response
Diagnosis: Traumatic Brain Injury
“I have none of these symptoms”
Feature of Disorder:
• Impaired attention
• Impaired learning and memory
“I may forget some things, but I never forget about
money. I walk around the house and see the lights
on and remember to pay the light bill. I pay the
gas bill because I want to drive my car. I sit around
the house all day – that’s my problem.”
Feature of Disorder
• Impulsivity (substance misuse and spending)
“No”
Feature of Disorder:
• Behavioral dis-control
• Anger outbursts
• Threats to others
“No changes. It something bothers me and I get
the chance I speak my mind. But I don’t get mad.”
Course of Disorder: Treatment/Improvement
“If I get intense therapy my left side will improve
so I can run and play football with my son and
patty cake with my daughter.”
No Treatment
“Won’t do me no good.”
Recommendations
● Patient continues to require a legal guardian to
support his safety, to make decisions for him, and to
manage his finances. The court should be informed
that patient’s relationship with his wife is strained (there
is a restraining order in place as a result of his actions in
the home on September 9, 2014).
●Patient will require ongoing pharmacological
management and review of behaviors in association
with medication changes.
Recommendations Continued
●Patient would benefit from using goal-setting
language (with clearly delineated tasks and aims) to
support his overall goal of becoming his own
guardian. It will be important for future clinicians to
recognize this primary goal, and use this goal to
support the reasoning behind all future treatments
(emotional, physical, cognitive, and behavioral). While it
is certainly unclear as to whether patient will ever
achieve his desired outcome, using that goal for his
“buy-in” to treatment will be critical.
Recommendations Continued
●Patient has severe cognitive, emotional, behavioral,
physical, and psychological deficits resulting from his
severe traumatic brain injury. His personality style,
combined with the cognitive, emotional, and
psychological issues related to his brain injury, will
directly impact his ability to develop and implement
strategies to support his recovery. A
neuropsychologist with extensive experience in
working with persons with traumatic brain injuries
would best serve to address these issues and to
direct a treatment team on how to establish a
relationship and implement strategies.
Case 2: History
● 65 year old woman who was born in Guatemala and immigrated
to the United States in the “1980’s”
● History of migraine headaches, without aura, hypertension,
hyperlipidemia, asthma, macular degeneration, colonic polyps,
gastric ulcer
● October 2003, experienced an episode of left arm numbness
and weakness with pain. MRI reported as WNL
● Between 1995 and 2009, several episodes of dizziness,
described as “lightheadedness” and “vertigo”
● Cardiac and neurological investigations into the possible
causes of these episodes were negative. A CT scan in July
2007, following an episode, was reported as within normal
limits
History Continued
●July 2007, patient fell on a wet floor
● Loss of consciousness
● An additional thirty minutes of disorientation
and complained of headache after the fall.
Screening laboratory tests and CT scans of
the head, cervical, and lumbosacral spine
were negative, although degenerative facet
hypertrophy was noted at L5-S1. Two findings
were noted during the course of the July 2007
hospitalization: an EKG identified lateral ST
depression, and bilateral leg tremors.
History Continued
● Neurological follow-up July 2007
●Diagnosed with idiopathic Parkinson’s disease,
stage I: left arm dystonia, resting tremor of the
left leg, mild cogwheel rigidity in the left arm,
mild left deltoid and hip flexor weakness, mild
left hypokensia, and bradykinesia.
●Mirapex (symptoms of headache and
lightheadedness)
●Requip, which she continues on as of the
writing of this report
History Continued
●January 2009, pedestrian struck by a bus while
crossing the street
● Altered state of consciousness and lying on her
left side. She was disorientated, and with a
Glasgow Coma Scale score of 13
● CT findings: linear skull fracture, hyperactyte left
temperoparietal subdural hematoma, significant
mass effect from the subdural hematoma, and
subarachnoid hemorrhages in both the Sylvian
Fissure and high convexity.
● Emergency evacuation of the hematoma
History Continued
● Two weeks acute care
● Confused and agitated, and required physical restraints to assure her
safety so she would not fall.
● Acute brain injury rehabilitation from February 13,
2009 until March 5, 2009.
● Enclosed bed system for safety.
● Impulsive, misused familiar objects, and had decreased problem
solving; she was unable to make medical decisions.
● Required 24/7 supervision to assure her safety, and to assist her in
activities of daily living.
● In March 2009, the Court determined patient to be totally
incapacitated, when her son and attorney appointed guardian of the
estate, husband and daughter co-guardians of her person.
● Currently lives with husband, daughter (husband and 3 children)
Social History
● Lives with husband, daughter, and daughter’s family
● Daughter is currently Guardian of the person
● Son is currently Guardian of the estate
● Prior to the 2009 brain injury, patient had amassed
approximately $60,000 in credit card debt
● Following the January 2009 brain injury, acquired an
additional $30,000 in debt
Questions to be Addressed
● What are client’s functional performance strengths
and limitations?
● Can the client understand the nature of her
condition? Does she understand her financial and
medical situations?
● Can patient weigh the risks, benefits, and
consequences of her decisions?
● What is the recommendation to the Court regarding
capacity to make her own medical and financial
decisions?
Evaluation: Standardized Measures
● The Montreal Cognitive Assessment (MOCA)-
Spanish version
● Brown-Peterson Task: Consonant Trigrams
(administered in Spanish)
● Grip Strength Test
● Wechsler Adult Intelligence Scale-IV:
Comprehension Subtest (administered in Spanish)
● Ruff 2&7 Selective Attention Test
● Ruff Figural Fluency Test
● Wisconsin Card Sorting Test (administered in Spanish)
Functional Evaluation
●
Route Finding/Functional Mobility Task
● Utilize written directions to each location within the hospital. Given a list of 5 questions
to answer at each location. This task requires attention to detail, environmental cues,
problem solving, physical strength and endurance
●
Medication Management Task
● Required patient to prepare 3 levels of prescriptions orders, using written instructions
and bottles of “medications.” Task increases in demand, with prescriptions becoming
increasingly more complicated. Required fine-motor skill, attention to detail and
organization.
●
Family Schedule
● Organize approximately fifty tasks for 4 family members across a week, given various
events and parameters. Required attention to detail and problem solving, and planning
and organization. She is given a weekly schedule/calendar and sticky notes to complete
the task.
Functional Evaluation
●Personal
●
Business and Finance Task: cash version
Given budget and food stamps amount. She was required to assign money from
her budget to pay eight bills and to cover the cost of cost of additional food. Required
problem solving skills, organization, and basic math skills.
●Situational
●
Problem Solving Scenarios
Presented with seven problem solving scenarios related to personal safety, social
relationships, and financial decisions. Required reasoning, planning, problem solving,
and judgment.
Understanding Results
Functional Performance Findings
Strengths
Activity Pattern
Attention to Task
Communication
Skills
Emotional
Adjustment
Functional Math
Skills
Physical Safety
Awareness
Use of Strategies
Variable Skills
Limitations
Awareness of
Attention to Detail
Deficits/Insight into
Problem Solving
Disability
Following Directions
Physical Functioning
and Endurance
Planning and
Organization
Learning and Memory
Rate of Performance
Standardized Results
● MOCA 24/30 (Impaired)
● Brown Peterson : <1st percentile, profound impairment
● Ruff 2&7:
● Total Speed, 14th percentile (LA)
● Total Accuracy, 50th percentile (AVG)
● Comprehension (WAIS-IV): 9th percentile (LA)
● WCST4/6 categories completed
33 trials to complete first sort
● Grip Strength
● RIGHT: 2nd percentile (borderline)
● LEFT: 1st percentile (severely impaired)
Recommendations to the Court
● At this time, it is my opinion, within a reasonable
degree of neuropsychological certainty, that patient
is not able to weigh the risks, benefits, and
consequences of her financial decisions. It is my
opinion, within a reasonable degree of
neuropsychological certainly, that the financial
guardianship remains in place.
● It is my opinion, within a reasonable degree of
neuropsychological certainty, that patient can make
her own medical decisions and be guardian of her
person.
Almost there…
When and Why to Contact an
Attorney
● Now, to decide while healthy who will make decisions for you if
you cannot
● Immediately after brain injury:

Guardianship if necessary or to ensure wishes set forth in
Power of Attorney honored

To guide family in medical decision-making regarding
treatment

To preserve evidence and fight to get back what is lost
(wages, medical costs, loss of life’s pleasures, etc.) if
injured due to negligence of another
When and Why to Contact a
Neuropsychologist

Assessment of function
 developmental
evaluation
 post neurological event





Question of capacity
Return to school
Return to work
Request for accommodations
Change in mental status
Very close now…
Questions and Comments?
Thank You!