Capacity evaluation for Covid Deniers?

[G Sheb]

Poor health literacy is not grounds for deeming a pt lacks decision making capacity! Similarly, a pt does not lack capacity because someone didn't explain something to them properly.
The key point is capacity. It's not where someone does/does not understand something, it is whether they have the capacity to do so. If they are incapacitated, that must be because something is impairing their mental functions (such as coma, delirium, dementia, psychosis, intellectual disability). This is clear in the law. It is especially clear in the case of criminal competencies (e.g. competency to stand trial), but also for civil competencies (of which medical decision making capacity is the most common, along with testamentary capacity, contractual capacity etc.) I would find it hard to believe there are any states that would allow someone to be deemed incompetent/incapacitated without a mental impairment (though have not read the statutes for every state).

In my state, the law is very clear that mental impairment is a pre-requisite, it is not sufficient to not meet one of the 4 prongs of the Appelbaum and Grisso criteria. As I mentioned before, this is very poorly taught. My program was very C-L heavy and we did not learn this. It was not until I did my forensic fellowship I really understood this.

Here is the california law for example:

Law section

leginfo.legislature.ca.gov

Thanks for this. I would not be surprised if there is significant variation from state to state. The laws on involuntary hospitalization can vary quite a bit as well.

I've looked up NJ as an example, and it seems to differ from California.

g.For purposes of this section, a determination that a patient lacks decision making capacity shall be based upon, but need not be limited to, evaluation of the patient's ability to understand and appreciate the nature and consequences of a particular health care decision, including the benefits and risks of, and alternatives to, the proposed health care, and to reach an informed decision.

2014 New Jersey Revised Statutes :: Title 26 - HEALTH AND VITAL STATISTICS :: Section 26:2H-60 - Determination of patient's capacity to make a health care decision.

law.justia.com

There's no mention for a necessity of a medical/psychiatric cause for incapacity.

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[sloop]

Poor health literacy is not grounds for deeming a pt lacks decision making capacity! Similarly, a pt does not lack capacity because someone didn't explain something to them properly.
The key point is capacity. It's not where someone does/does not understand something, it is whether they have the capacity to do so. If they are incapacitated, that must be because something is impairing their mental functions (such as coma, delirium, dementia, psychosis, intellectual disability). This is clear in the law. It is especially clear in the case of criminal competencies (e.g. competency to stand trial), but also for civil competencies (of which medical decision making capacity is the most common, along with testamentary capacity, contractual capacity etc.) I would find it hard to believe there are any states that would allow someone to be deemed incompetent/incapacitated without a mental impairment (though have not read the statutes for every state).

In my state, the law is very clear that mental impairment is a pre-requisite, it is not sufficient to not meet one of the 4 prongs of the Appelbaum and Grisso criteria. As I mentioned before, this is very poorly taught. My program was very C-L heavy and we did not learn this. It was not until I did my forensic fellowship I really understood this.

Here is the california law for example:

Law section

leginfo.legislature.ca.gov

Maybe I’m missing something but, by my read, that California law does not seem to indicate anything about a diagnosis being a necessary condition for incapacity. Poor health literacy would seem to fulfill 811(a)2, insofar as it impacts an individual’s “ability to understand or communicate with others.” Specifically, it impairs their ability to understand relevant health information to their medical decision.

The only part of that law that references any sort of diagnosis is subdivision (d) which states “The mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act.” This subdivision does not state that a diagnosis is a necessary element for incapacity, only that it is not sufficient to prove incapacity.

The law also makes specific reference to “mental function deficits” as opposed to diagnoses or illnesses, which suggests that they are trying to make the distinction that one merely has to have a mental function deficit to be incapacitated, not a diagnosis. Many people without a diagnosable medical illness or mental pathology nonetheless have some sort of “mental function deficit.”

 

[G Sheb]

Maybe I’m missing something but, by my read, that California law does not seem to indicate anything about a diagnosis being a necessary condition for incapacity. Poor health literacy would seem to fulfill 811(a)2, insofar as it is impacts an individual’s “ability to understand or communicate with others.” Specifically, it impairs their ability to understand relevant health information to their medical decision.

The only part of that law that references any sort of diagnosis is subdivision (d) which states “The mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act.” This subdivision does not state that a diagnosis is a necessary element for incapacity, only that it is not sufficient to prove incapacity.

I disagree with your reading. "ability to understand or communicate with others" falls under deficit in information processing in the text. Someone who's refuting basic medical facts because of irrational/wacky beliefs does not necessarily have deficits in information processing.

Of course I think you may very well argue they are delusional. And they neatly kept the "delusions" criterion to a single word because of how fraught any explanation would be.

As said though, it seems that states differ considerably in how they look at this issue, which would be hardly surprising.

 

[sloop]

I disagree with your reading. "ability to understand or communicate with others" falls under deficit in information processing in the text. Someone who's refuting basic medical facts because of irrational/wacky beliefs does not necessarily have deficits in information processing.

Of course I think you may very well argue they are delusional. And they neatly kept the "delusions" criterion to a single word because of how fraught any explanation would be.

As said though, it seems that states differ considerably in how they look at this issue, which would be hardly surprising.

You don’t think that a person who is impervious to education about medical facts has a deficit in information processing?

 

[G Sheb]

You don’t think that a person who is impervious to education about medical facts has a deficit in information processing?

No not necessarily, unless it's a generalized deficit.

If they selectively refuse to 'understand' that covid makes you sick, that is not a deficit in information processing.
I think the issue here is clearly their beliefs in conspiracy theories under this law, which may (or may not) qualify as a delusion.

 

[sloop]

No not necessarily, unless it's a generalized deficit.

If they selectively refuse to 'understand' that covid makes you sick, that is not a deficit in information processing.

It doesn’t say generalized deficit. It just says “mental function deficit.” An isolated inability to understand medical facts is nonetheless a mental deficit. It’s not the type of generalized mental deficit that we think of when we talk about diagnoses, but again the law does not require a diagnosis either.

 

[G Sheb]

It doesn’t say generalized deficit. It just says “mental function deficit.” An isolated inability to understand medical facts is nonetheless a mental deficit. It’s not the type of generalized mental deficit that we think of when we talk about diagnoses, but again the law does not require a diagnosis either.

I think they are implicitly talking about a generalized deficit here:

shall be supported by evidence of a deficit in at least one of the following mental functions, subject to subdivision (b), and evidence of a correlation between the deficit or deficits and the decision or acts in question

I don't think you can define the deficit by the clinical information itself, since they are asking you have to show a correlation between the two.

If I'm practicing in California, I probably wouldn't want to test the law in this way.

 

[sloop]

I think they are implicitly talking about a generalized deficit here:

shall be supported by evidence of a deficit in at least one of the following mental functions, subject to subdivision (b), and evidence of a correlation between the deficit or deficits and the decision or acts in question

I don't think you can define the deficit by the clinical information itself, since they are asking you have to show a correlation between the two.

If I'm practicing in California, I probably wouldn't want to test the law in this way.

Regardless of what you think it might imply, the fact that it needs to be supported by only “at least one” deficit explicitly leaves open the possibility that one isolated (I.e. not generalized) deficit could result in incapacity.

If it meant to require a generalized deficit, it would have required a showing of a deficit in “all of the following” or “two or more of the following” domains.

In the case of poor health literacy, these elements are about as obvious as I can imagine. Is there one or more mental deficit? Yes. What’s the mental deficit? Information processing, specially a deficit in processing medical information. What’s the correlation between that deficit and the decision in question? They’re trying to make a medical decision, so their deficit in processing medical information is impairing their ability to make the medical decision.

 

[G Sheb]

Regardless of what you think it might imply, the fact that it needs to be supported by only “at least one” deficit explicitly leaves open the possibility that one isolated (I.e. not generalized) deficit could result in incapacity.

If it meant to require a generalized deficit, it would have required a showing of a deficit in “all of the following” or “two or more of the following” domains.

Why? By generalized I mean not that it needs to involve different criteria, but it needs involvement of situations outside the clinical situation directly involved here.
Like you can't argue one has a 'deficit in information processing' only when they are talking about the particular clinical situation. 'Information proessing' itself is an abstraction (i.e a generalization). It has to apply to situations outside the direct clinical context. And I think it's evidence enough since they are asking for a correlation between the two.

 

[Mass Effect]

Again you’re telling me stuff I already know, if you have a need to be right then I hope you satisfied yourself today

And if you have questions about Maryland why don’t you Google it... I see you have a history of nitpicking peoples posts without adding anything to the conversation

Yeah yeah people say this but actually when you're determining someone to lack capacity you're also determining them incompetent de-facto at that time. It is rather pedantic.

Competency and the Capacity to Make Treatment Decisions: A Primer for Primary Care Physicians

Common law dictates that individuals possess autonomy and self-determination, which encompass the right to accept or refuse medical treatment. Management of medical treatment can be complicated in situations when the ability of the patient to make reasonable ...

www.ncbi.nlm.nih.gov

"The patient evaluated by a physician to lack capacity to make reasoned medical decisions is referred to as de facto incompetent, i.e., incompetent in fact, but not determined to be so by legal procedures."

The "competency is a legal determination" thing matters most when you have someone who is chronically deemed incompetent (ex. an individual with moderate ID, dementia, etc) who the courts then appoint a legal guardian since it is assumed they will be incompetent for extended periods of time in multiple domains by the legal system. Or competency to stand trial for instance.

Actually, it's not pedantic and no you're not calling people who lack capacity incompetent at the same time. Your link is wrong. These are legal terms that should be used appropriately. To suggest anyone lacking capacity for this or that is incompetent is not only wrong, but it can have far-reaching consequences for the patient. Capacity is very limited in scope and it refers to informed consent and that's it. What we do is based exclusively on medical decision-making and even more exclusively on one specific procedure or test or situation. You can lack capacity and not be incompetent. You can also lack capacity for one thing and not for another. Someone can have the capacity to refuse a specific treatment, but not have capacity to leave AMA. These people are not incompetent.

 

[sloop]

Why? By generalized I mean not that it needs to involve different criteria, but it needs involvement of situations outside the clinical situation directly involved here.
Like you can't argue one has a 'deficit in information processing' only when they are talking about the particular clinical situation. 'Information proessing' itself is an abstraction (i.e a generalization). It has to apply to situations outside the direct clinical context. And I think it's evidence enough since they are asking for a correlation between the two.

How do you figure? This would be like saying that someone with very poor verbal reasoning should not get IEP accommodations because their full scale IQ is normal, so obviously they don’t have “deficits in intellectual functioning.” I would contend that such an isolated deficit is nonetheless a deficit in intellectual functioning. It is obviously a deficit, and that deficit obviously lies in the category of intellectual functioning. How, then, is it not a “deficit in intellectual functioning?”

Same thing here. Inability to process medical information is obviously some form of deficit. It is also a deficit in the mind’s ability to do something, so it is a “mental deficit.” Furthermore, it is a deficit in the category of information processing, so it is a “deficit in information processing.”

 

[Mass Effect]

no i just clicked on your name and saw you historically correcting people's spelling and grammar and other minor details and responded to you with the energy you (probably unknowingly) bring

You're blaming him for your prickly response? Just so we're clear, I'm replying to you with the energy you (probably unknowingly) brought to the thread.

 

[Mass Effect]

You don’t think that a person who is impervious to education about medical facts has a deficit in information processing?

No, not necessarily. Information processing deficits means they are unable to understand/process the information. Choosing not to hear the information does not mean they would be unable to understand it if they heard it.

 

[G Sheb]

How do you figure? This would be like saying that someone with very poor verbal reasoning should not get IEP accommodations because their full scale IQ is normal, so obviously they don’t have “deficits in intellectual functioning.” I would contend that such an isolated deficit is nonetheless a deficit in intellectual functioning. It is obviously a deficit, and that deficit obviously lies in the category of intellectual functioning. How, then, is it not a “deficit in intellectual functioning?”

Same thing here. Inability to process medical information is obviously some form of deficit. It is also a deficit in the mind’s ability to do something, so it is a “mental deficit.” Furthermore, it is a deficit in the category of information processing, so it is a “deficit in information processing.”

Not at all. The right analogy would be saying: someone who couldn't solve one verbal analogy involving covid but solves every other one correctly doesn't have a 'deficit in verbal reasosning'. Likewise, this patient doesn't have a 'deficit in understanding or communicating others' or a 'deficit in information processing' if she understands everything you tell her , can normally communicate perfectly well..etc except about that particular information that she has covid. She may even 'understand' that but disagrees due to other beliefs, which I think is what we are dealing with here, which wouldn't even fall in 'information processing deficits' to start with.

In any case, I guess we'll agree to disagree. It's a minor point I think, because in general I agree that pathology/etiology is not a pre-requisite in quite a few states. I mentioned NJ and here is Oregon:

OAR 309-114-0010 – Gen. Policy on Obtaining Informed Consent to Treatment & Training

(1)(a) Basic Rule. Patients, or parents or guardians of minors, or guardians on behalf of legally incapacitated patients, may refuse any significant…

oregon.public.law

"A person committed to the Division may be deemed unable to consent to or refuse, withhold, or withdraw consent to a significant procedure only if the person currently demonstrates an inability to reasonably comprehend and weigh the risks and benefits of the proposed procedure, alternative procedures, or no treatment at all including, but not limited to, all applicable factors listed in (3)(a) of this rule. The patient’s current inability to provide informed consent is to be documented in the patient’s record and supported by the patient’s statements or behavior; and may be evidenced in the treating physician’s or psychiatric nurse practitioner’s informed consent form, the evaluation form by the independent examining physician and forms approving or disapproving the procedure by the superintendent or chief medical officer;"

Again cause does not play a role. California is probably the exception.

 

[calvnandhobbs68]

Actually, it's not pedantic and no you're not calling people who lack capacity incompetent at the same time. Your link is wrong. These are legal terms that should be used appropriately. To suggest anyone lacking capacity for this or that is incompetent is not only wrong, but it can have far-reaching consequences for the patient. Capacity is very limited in scope and it refers to informed consent and that's it. What we do is based exclusively on medical decision-making and even more exclusively on one specific procedure or test or situation. You can lack capacity and not be incompetent. You can also lack capacity for one thing and not for another. Someone can have the capacity to refuse a specific treatment, but not have capacity to leave AMA. These people are not incompetent.

Did you actually read this article which was written by a CL psychiatrist? Yeah we get the difference between legal competence (a more global term generally attempting to cover multiple decisions over time in certain domains like medical decision making, finances, ability to make a will, stand trial, etc) and limited capacity assessments, the fact stands that you are presumed overall competent to make medical decisions if you are found to have capacity and are de facto incompetent to make that decision if you lack capacity.

The comment was just trying to “gotcha” another psychiatrist who is currently working in a forensic hospital and has done many capacity assessments and very likely understands the difference between capacity assessments and legal competence.

Edit: CL not forensic

 

[Mad Jack]

Poor health literacy is not grounds for deeming a pt lacks decision making capacity! Similarly, a pt does not lack capacity because someone didn't explain something to them properly.
The key point is capacity. It's not where someone does/does not understand something, it is whether they have the capacity to do so. If they are incapacitated, that must be because something is impairing their mental functions (such as coma, delirium, dementia, psychosis, intellectual disability). This is clear in the law. It is especially clear in the case of criminal competencies (e.g. competency to stand trial), but also for civil competencies (of which medical decision making capacity is the most common, along with testamentary capacity, contractual capacity etc.) I would find it hard to believe there are any states that would allow someone to be deemed incompetent/incapacitated without a mental impairment (though have not read the statutes for every state).

In my state, the law is very clear that mental impairment is a pre-requisite, it is not sufficient to not meet one of the 4 prongs of the Appelbaum and Grisso criteria. As I mentioned before, this is very poorly taught. My program was very C-L heavy and we did not learn this. It was not until I did my forensic fellowship I really understood this.

Here is the california law for example:

Law section

leginfo.legislature.ca.gov

I think this is very state dependent. I trained in Pennsylvania, and there someone must be able to communicate a choice that is consistent with their intelligence and level of education. Some people, regardless of how many times or simplified manners a procedure or other medical decision was explained, would show no understanding of the decision they were making, even one that was consistent with their developmental and educational level. These individuals under PA state law do not have capacity. There need not be any disability or illness present, merely an inability to provide informed consent or nonconsent to medical treatment due to a failure to understand the information provided

https://www.disabilityrightspa.org/wp-content/uploads/2018/04/CompleteGuideCapacityConsentSubDecMakingFEB2018.pdf

Specifically, capacity is determination of informed consent, as defined in PA commonwealth law:

 

[sloop]

No, not necessarily. Information processing deficits means they are unable to understand/process the information. Choosing not to hear the information does not mean they would be unable to understand it if they heard it.

Without somehow getting them to demonstrate some form of understanding, how exactly do you propose that we reliably differentiate between someone who chooses not to hear the information versus somebody who can’t understand it.

Say this person dies and their family sues you because they believe he didn’t understand what he was doing when he refused treatment. If he never demonstrated that he actually did understand, what is your response going to be on cross-examination. “He was just refusing to listen when I tried to educate him about what he was doing.” That’s not a great defense.

Realistically, someone who refuses to listen to the information you present to them in such a way that they can’t affirmatively demonstrate understanding cannot be said to have capacity. Capacity is something the patient demonstrates, it is not something we can just divine.

 

[Mass Effect]

Did you actually read this article which was written by a forensic psychiatrist? Yeah we get the difference between legal competence (a more global term generally attempting to cover multiple decisions over time in certain domains like medical decision making, finances, ability to make a will, stand trial, etc) and limited capacity assessments, the fact stands that you are presumed overall competent to make medical decisions if you are found to have capacity and are de facto incompetent to make that decision if you lack capacity.

I did not because I'm waiting for my in-laws to get here. But I skimmed it and I did read the de factor incompetent. I disagree. I think these are distinct words. I don't think you are de facto anything when found to lack capacity. Competence should be reserved for judicial decisions only, as intended.

 

[sloop]

Not at all. The right analogy would be saying: someone who couldn't solve one verbal analogy involving covid but solves every other one correctly doesn't have a 'deficit in verbal reasosning'. Likewise, this patient doesn't have a 'deficit in understanding or communicating others' or a 'deficit in information processing' if she understands everything you tell her , can normally communicate perfectly well..etc except about that particular information that she has covid. She may even 'understand' that but disagrees due to other beliefs, which I think is what we are dealing with here, which wouldn't even fall in 'information processing deficits' to start with.

Except it is a deficit in intellectual functioning. It is not a global deficit in intellectual functioning, but it is a deficit. This is even more true when you consider two things:

Context matters, and in this context the decision being contemplated is a medical decision. An inability to process medical information is obviously a deficit in the context of making a medical decision.

The other thing is the way the law is constructed. It says “shall be supported by evidence of a deficit in at least one of the following mental functions.” Emphasis on “a deficit.” It does not say “a deficiency of one of the following.” It says “a deficit in.” This implies that there may be multiple types of deficits that can fall under the category of each mental function. It does not require multiple deficits in a given mental function, nor does it require a general deficiency of that mental function. It only requires “a deficit in at least one of the following mental functions.”

 

[Mass Effect]

Without somehow getting them to demonstrate some form of understanding, how exactly do you propose that we reliably differentiate between someone who chooses not to hear the information versus somebody who can’t understand it.

For example the case we're talking about. Just because this woman chooses not to hear anything about the existence of Covid does not mean she has an information processing deficit. She may very well be able to process the information just fine if she would allow for discussion of it.

Say this person dies and their family sues you because they believe he didn’t understand what he was doing when he refused treatment. If he never demonstrated that he actually did understand, what is your response going to be on cross-examination. “He was just refusing to listen when I tried to educate him about what he was doing.” That’s not a great defense.

I mean, the defense would be what's been stated about a dozen times or more in this thread already. We all interpret the law differently and I could go either way on this one. When I started the thread, I believed she didn't have capacity, but the more I read the points of view of others, I have my doubts. But I think if the family sued, there would be a viable legal defense steeped in the unusual circumstances and (I believe) division of the psychiatric community on this given allowances for other more acceptable false beliefs.

Realistically, someone who refuses to listen to the information you present to them in such a way that they can’t affirmatively demonstrate understanding cannot be said to have capacity. Capacity is something the patient demonstrates, it is not something we can just divine.

Yes and no. Someone who refuses to listen to risks and benefits, sure. If they refuse to consider the risks of leaving AMA, then they are said not to have capacity to leave AMA. But if they do consider the risks of leaving vs not, but refuse to acknowledge the existence of Covid for example, I'm not positive you can say they don't have capacity. She seemed to understand what the doctors were saying, she just didn't believe them.

 

[Mad Jack]

Without somehow getting them to demonstrate some form of understanding, how exactly do you propose that we reliably differentiate between someone who chooses not to hear the information versus somebody who can’t understand it.

Say this person dies and their family sues you because they believe he didn’t understand what he was doing when he refused treatment. If he never demonstrated that he actually did understand, what is your response going to be on cross-examination. “He was just refusing to listen when I tried to educate him about what he was doing.” That’s not a great defense.

Realistically, someone who refuses to listen to the information you present to them in such a way that they can’t affirmatively demonstrate understanding cannot be said to have capacity. Capacity is something the patient demonstrates, it is not something we can just divine.

There's a whole paper in, I believe it was The Journal of Medical Ethics on this where the consensus opinion was essentially that if a patient is unable to see the value in self-advocacy through the process of cooperating in a capacity evaluation with regard to a potentially life-altering decision then they by default do not have decision making capacity. I'll have to see if I can dig it up. This JAMA opinion basically advocates for a sliding scale approach, in which any refusal with regard to discussing a potentially life-saving treatment or decision should be treated as a patient not having capacity

When Patients Refuse Assessment of Decision-Making Capacity

When patients refuse beneficial treatment, the assessment of decision-making capacity plays a key role in determining the best course of action. However, situations in which patients refuse to explain their reasons occur. This can make an assessment of capacity impossible. In such cases...

jamanetwork.com

I very rarely find that people who are not delirious, suffering from some form of neurocognitive disorder, or are in the throes of severe mental illness do not have capacity, as most people that are even somewhat together can lay out a rationale for their decisions that is acceptable, even if the team might prefer otherwise. It has happened a couple of times and is usually quickly resolved by reaching out to family to either help the patient clarify their wishes or to serve as a substitute decision maker.

 

[G Sheb]

For example the case we're talking about. Just because this woman chooses not to hear anything about the existence of Covid does not mean she has an information processing deficit. She may very well be able to process the information just fine if she would allow for discussion of it.




I mean, the defense would be what's been stated about a dozen times or more in this thread already. We all interpret the law differently and I could go either way on this one. When I started the thread, I believed she didn't have capacity, but the more I read the points of view of others, I have my doubts. But I think if the family sued, there would be a viable legal defense steeped in the unusual circumstances and (I believe) division of the psychiatric community on this given allowances for other more acceptable false beliefs.



Yes and no. Someone who refuses to listen to risks and benefits, sure. If they refuse to consider the risks of leaving AMA, then they are said not to have capacity to leave AMA. But if they do consider the risks of leaving vs not, but refuse to acknowledge the existence of Covid for example, I'm not positive you can say they don't have capacity. She seemed to understand what the doctors were saying, she just didn't believe them.

Well, she seemed clearly unable to understand the risks and benefits of leaving the hospital. I think by understanding there's an implicit agreement here; if you don't agree that these are the risks and benefits then you don't meet the criteria imo. I think it's still a clear case by most state laws, unless you could argue for states that need to have a medical/psychiatric cause behind the lack of capacity.

 

[Mad Jack]

For example the case we're talking about. Just because this woman chooses not to hear anything about the existence of Covid does not mean she has an information processing deficit. She may very well be able to process the information just fine if she would allow for discussion of it.




I mean, the defense would be what's been stated about a dozen times or more in this thread already. We all interpret the law differently and I could go either way on this one. When I started the thread, I believed she didn't have capacity, but the more I read the points of view of others, I have my doubts. But I think if the family sued, there would be a viable legal defense steeped in the unusual circumstances and (I believe) division of the psychiatric community on this given allowances for other more acceptable false beliefs.



Yes and no. Someone who refuses to listen to risks and benefits, sure. If they refuse to consider the risks of leaving AMA, then they are said not to have capacity to leave AMA. But if they do consider the risks of leaving vs not, but refuse to acknowledge the existence of Covid for example, I'm not positive you can say they don't have capacity. She seemed to understand what the doctors were saying, she just didn't believe them.

If a patient comes in with, say, a very operable and emergent surgical condition after an accident, for instance, and you clearly explain it to them but they state they understand what you are saying but they do not believe they have the condition and would like to leave immediately, well... They don't have capacity. They have failed to demonstrate an understanding of the facts as required to provide an informed decision. This is the same as a patient that simply doesn't believe they have COVID because it doesn't exist even though they are dying of it.

 

[Mass Effect]

Well, she seemed clearly unable to understand the risks and benefits of leaving the hospital. I think by understanding there's an implicit agreement here; if you don't agree that these are the risks and benefits then you don't meet the criteria imo. I think it's still a clear case by most state laws, unless you could argue for states that need to have a medical/psychiatric cause behind the lack of capacity.

I don't think that's true. A patient is allowed to learn the information and disagree with a prognosis, so long as they're not disagreeing with facts. Example: if I have cancer and the doctor shows me the cancer on X-ray. I'm not going to deny I have cancer. Doctor says you will die if you don't get chemo. I am allowed to say I understand you think I'm going to die without chemo. I don't believe I will die without chemo. I believe I can go home and recover just as I did before. I have faith and I believe I will pull through.

Are you going to tie me down and give me chemo because I disagreed with your prognosis?

 

[Mass Effect]

If a patient comes in with, say, a very operable and emergent surgical condition after an accident, for instance, and you clearly explain it to them but they state they understand what you are saying but they do not believe they have the condition and would like to leave immediately, well... They don't have capacity. They have failed to demonstrate an understanding of the facts as required to provide an informed decision. This is the same as a patient that simply doesn't believe they have COVID because it doesn't exist even though they are dying of it.

It's not that straight forward. Remember, the woman said she knows she has pneumonia. She just doesn't believe it's Covid pneumonia. It isn't open and shut. I kind of agree with you, but I kind of don't. Even the (at least) two forensic psychiatrists aren't in agreement. This is why I say I don't think this is a losable case in court if it ever got that far.

 

[G Sheb]

I don't think that's true. A patient is allowed to learn the information and disagree with a prognosis, so long as they're not disagreeing with facts. Example: if I have cancer and the doctor shows me the cancer on X-ray. I'm not going to deny I have cancer. Doctor says you will die if you don't get chemo. I am allowed to say I understand you think I'm going to die without chemo. I don't believe I will die without chemo. I believe I can go home and recover just as I did before. I have faith and I believe I will pull through.

Are you going to tie me down and give me chemo because I disagreed with your prognosis?

I mean we could run two liner hypothetical scenarios all day long, but I don't think it's going to be helpful as the devil is in the detail. There is a lot of murky stuff there which I'm hesitant to get into.

For this particular scenario from the information you provided, this patient does not believe she has a serious illness that will likely make her die shortly if she leaves the hospital without treatment. That is not an appreciation of risks and benefits, and so I don't think she has capacity. If she says 'I understand the risk, but I still like to go home' then indeed it gets murky. Which is why what is verbalized in capacity evaluations is extremely important. More often the key is that they are able to understand what is at stake if they do this or that and are able to communicate their decision making based on the provided medical facts. If they are basing their decision on critically false information even after the information is communicated to them (to be differentiated from medical decision the doctor is pushing), then imo no capacity.

 

[Mad Jack]

It's not that straight forward. Remember, the woman said she knows she has pneumonia. She just doesn't believe it's Covid pneumonia. It isn't open and shut. I kind of agree with you, but I kind of don't. Even the (at least) two forensic psychiatrists aren't in agreement. This is why I say I don't think this is a losable case in court if it ever got that far.

If she appreciates she has pneumonia and could very well die but leaves, it doesn't matter whether she thinks it is COVID or not. The question then becomes is her desire to live, and if so why is she leaving. Really a challenging case without personally interviewing the patient

 

[nexus73]

Poor health literacy is not grounds for deeming a pt lacks decision making capacity! Similarly, a pt does not lack capacity because someone didn't explain something to them properly.
The key point is capacity. It's not where someone does/does not understand something, it is whether they have the capacity to do so. If they are incapacitated, that must be because something is impairing their mental functions (such as coma, delirium, dementia, psychosis, intellectual disability). This is clear in the law. It is especially clear in the case of criminal competencies (e.g. competency to stand trial), but also for civil competencies (of which medical decision making capacity is the most common, along with testamentary capacity, contractual capacity etc.) I would find it hard to believe there are any states that would allow someone to be deemed incompetent/incapacitated without a mental impairment (though have not read the statutes for every state).

In my state, the law is very clear that mental impairment is a pre-requisite, it is not sufficient to not meet one of the 4 prongs of the Appelbaum and Grisso criteria. As I mentioned before, this is very poorly taught. My program was very C-L heavy and we did not learn this. It was not until I did my forensic fellowship I really understood this.

Here is the california law for example:

Law section

leginfo.legislature.ca.gov

So a nexus is required

 

[docksan]

Competence and capacity are very, very different things.

 

[hamstergang]

Even the (at least) two forensic psychiatrists aren't in agreement. This is why I say I don't think this is a losable case in court if it ever got that far.

I fear this means the court case would be unwinnable! A very qualified forensics psychiatrist can be found to disagree with whatever decision you make.

 

[Mass Effect]

I fear this means the court case would be unwinnable! A very qualified forensics psychiatrist can be found to disagree with whatever decision you make.

And another one can be found to agree. When there's disagreement, I believe the default would be patient autonomy.

 

[clausewitz2]

Competence and capacitance are very, very different things.

Especially because so few of us cross-trained as electricians.

 

[docksan]

Especially because so few of us cross-trained as electricians.

Seems most likely that some of us are cross trained in nitpicking.

 

[clausewitz2]

Seems most likely that some of us are cross trained in nitpicking.

A jest, clearly not appreciated

 

[FrustratedFamDoc]

Perhaps I'm more callous but if it were an alternative diagnosis, would such resources be utilized? How about cancer deniers? Renal failure requiring dialysis? COPD? Stroke? Liver failure? CAD needing bypass? If psych evals were called for all of these....

Most of these are allowed to leave all the time and capacity is rarely questioned. We as docs will never ultimately be able to save people from themselves.

 

[Mass Effect]

Perhaps I'm more callous but if it were an alternative diagnosis, would such resources be utilized? How about cancer deniers? Renal failure requiring dialysis? COPD? Stroke? Liver failure? CAD needing bypass? If psych evals were called for all of these....

Most of these are allowed to leave all the time and capacity is rarely questioned. We as docs will never ultimately be able to save people from themselves.

The difference is that most Covid deniers subscribe to a belief system that is based in delusional thinking. Covid denying is just one of the tenets of that belief system. Whether or not it constitutes lack of capacity is one thing, but it can't be compared to a cancer patient saying "no chemo".

 

[FrustratedFamDoc]

Would the same standard apply to non-westerners whose belief system is 180 degrees from us? How about Rastafarians? Buddhist monks, etc. We could easily interpret their belief system as very delusional.

I straight up have people who deny every health malady imaginable. It's a routine part of my day.

 

[clausewitz2]

Would the same standard apply to non-westerners whose belief system is 180 degrees from us? How about Rastafarians? Buddhist monks, etc. We could easily interpret their belief system as very delusional.

I straight up have people who deny every health malady imaginable. It's a routine part of my day.

If you look up thread, you will see we have discussed this very question at some length.

 

[whopper]

I've seen something similar come up in competency to stand trial evaluations in people who believe they are sovereign citizens. They reject the authority of the police, court, prosecutors, for a variety of made up reasons usually hinging on some misinterpretation of the Magna Carta or Maritime law or old legal dictionaries from 100 years ago. They refuse to work with attorneys because they imagine they can pull out all this legal nonsense and get themselves out of the charges, and when their defense attorney advises them against it they fire them. Of course, these people are NOT delusional. They just believe in this false ideology, almost like a religion. No antipsychotic is going to fix it. So you've ultimately just gotta let them go to court and likely get destroyed by their own bad decisions. It's kind of like Wesley Snipes believing he didn't have to pay taxes because of some misinterpretation of the IRS being an illegitimate government agency. Snipes wasn't delusional, he just really didn't want to pay his taxes and was willing to let himself be taken in by a similar ideology.

This issue has been researched in Journal of the American Association of Psychiatry and the Law (JAAPL). Courts have found these people competent to stand trial in most cases and found that simply because the person claims to have a certain belief structure out of ignorance doesn't mean they don't understand the basic principles needed to go through a court trial.

Bravo. I was thinking the same thing because these are parallel issues. The "Sovereign Citizen" movement was gaining some traction and at AAPL conferences lectures were presented on what to do if you get such a person, and the case-law so far.

Just cause you want to believe you're Hugh Hefner and ought to have sports cars and super-models doesn't mean it's going to happen and doesn't justify you stealing the car and trapping the ladies in your basement.

 

[sloop]

This issue has been researched in Journal of the American Association of Psychiatry and the Law (JAAPL). Courts have found these people competent to stand trial in most cases and found that simply because the person claims to have a certain belief structure out of ignorance doesn't mean they don't understand the basic principles needed to go through a court trial.

Bravo. I was thinking the same thing because these are parallel issues. The "Sovereign Citizen" movement was gaining some traction and at AAPL conferences lectures were presented on what to do if you get such a person, and the case-law so far.

Just cause you want to believe you're Hugh Hefner and ought to have sports cars and super-models doesn't mean it's going to happen and doesn't justify you stealing the car and trapping the ladies in your basement.

That is interesting that the courts have found that, but I don’t think I would generally opine a sovereign citizen competent to stand trial. Perhaps if someone had those beliefs because they were just misinformed, or if they somehow only believed that the process was abstractly illegitimate but acknowledged that they were still being prosecuted, could go to prison, the court process was nonetheless fair, and their charges were not evidence of unfair persecution. But, in general, I don’t think this is the case.

Sovereign citizen stuff often involves beliefs that are considerably more idiosyncratic than even COVID denial. These people often believe that they’re immune from any sort of legal prosecution based on some obscure technicality of the law. What is the justification for not diagnosing these people with delusional disorder? They have a fixed, false, idiosyncratic belief and can’t be convinced otherwise regardless of what evidence you proffer. That delusion poses obvious problems with regard to understanding the nature and object or, in Dusky language, the “rational as well as factual understanding” of the proceedings against him.

I have opined people IST for delusions that are significantly less impairing than a sovereign citizen belief when it comes to their legal understanding.

The other thing is that I imagine that many of these people will wind up in a situation where they are going to insist on representing themselves, which brings up a whole different issue. Competence to proceed pro se is not the same as competence to stand trial with the aid of an attorney.

As to your last point, I agree that a delusion about being Hugh Hefner does not justify theft of a motor vehicle and false imprisonment. However, isn’t that a separate issue? A sovereign citizen who murders someone doesn’t necessarily lack culpability for that crime even if they aren’t competent to stand trial. That is basically the realm of NCR/NGRI, specific intent, and similar issues. Many people who are IST are ultimately fully culpable in the sense that they are criminally responsible and the circumstances of their mental illness don’t lead to any sort of diminished capacity.

 

[whopper]

That is interesting that the courts have found that, but I don’t think I would generally opine a sovereign citizen competent to stand trial. Perhaps if someone had those beliefs because they were just misinformed, or if they somehow only believed that the process was abstractly illegitimate but acknowledged that they were still being prosecuted, could go to prison, the court process was nonetheless fair, and their charges were not evidence of unfair persecution. But, in general, I don’t think this is the case.

Sovereign citizen stuff often involves beliefs that are considerably more idiosyncratic than even COVID denial. These people often believe that they’re immune from any sort of legal prosecution based on some obscure technicality of the law. What is the justification for not diagnosing these people with delusional disorder? They have a fixed, false, idiosyncratic belief and can’t be convinced otherwise regardless of what evidence you proffer. That delusion poses obvious problems with regard to understanding the nature and object or, in Dusky language, the “rational as well as factual understanding” of the proceedings against him.

I have opined people IST for delusions that are significantly less impairing than a sovereign citizen belief when it comes to their legal understanding.

The other thing is that I imagine that many of these people will wind up in a situation where they are going to insist on representing themselves, which brings up a whole different issue. Competence to proceed pro se is not the same as competence to stand trial with the aid of an attorney.

As to your last point, I agree that a delusion about being Hugh Hefner does not justify theft of a motor vehicle and false imprisonment. However, isn’t that a separate issue? A sovereign citizen who murders someone doesn’t necessarily lack culpability for that crime even if they aren’t competent to stand trial. That is basically the realm of NCR/NGRI, specific intent, and similar issues. Many people who are IST are ultimately fully culpable in the sense that they are criminally responsible and the circumstances of their mental illness don’t lead to any sort of diminished capacity.

And I also oversimplified. E.g. if someone believed they were a "sovereign citizen" out of a psychotic belief structure and also had Schizophrenia that'd be one thing. Believing one is a sovereign citizen without an Axis I mental illness is another thing. I wrote the above in an "all things being equal" presumption and didn't clarify this. Some people are adhering to this sovereign citizen belief more so out of an entitlement, anger at society, etc, but not in relation to an Axis I. Others are. Complex to say the least.

The Sovereign Citizen phenomenon is complex. Several who adhere to this believe might cite erroneous or even factual law to back their arguments but the factual law is presented out of context that could lead the psychiatrist and courts to have to reread and research the laws to make sure they're not making a mistake.

Also the Hefner analogy was sarcastic. If someone truly believed they were Hugh Hefner, for real, obviously this person has a mental illness, but this person, again everything else being there-cognition etc, would be competent to stand trial on charges of kidnapping, sexually assault, and auto theft.

 

[sloop]

And I also oversimplified. E.g. if someone believed they were a "sovereign citizen" out of a psychotic belief structure and also had Schizophrenia that'd be one thing. Believing one is a sovereign citizen without an Axis I mental illness is another thing. I wrote the above in an "all things being equal" presumption and didn't clarify this. Some people are adhering to this sovereign citizen belief more so out of an entitlement, anger at society, etc, but not in relation to an Axis I. Others are. Complex to say the least.

The Sovereign Citizen phenomenon is complex. Several who adhere to this believe might cite erroneous or even factual law to back their arguments but the factual law is presented out of context that could lead the psychiatrist and courts to have to reread and research the laws to make sure they're not making a mistake.

Also the Hefner analogy was sarcastic. If someone truly believed they were Hugh Hefner, for real, obviously this person has a mental illness, but this person, again everything else being there-cognition etc, would be competent to stand trial on charges of kidnapping, sexually assault, and auto theft.

I guess what I’m saying is that I think it borders on tautological that an individual with a sovereign citizen belief that couldn’t be corrected despite legal education from their attorney has an Axis I disorder. Namely, that would be a delusional disorder.

Sovereign citizen beliefs are definitely idiosyncratic. I would imagine that these people only get evaluated for competency if the court and their attorney have not been able to correct the belief. Such people have a fixed belief. You mentioned that you would have to figure out if it’s false, but I’m not sure that’s as complicated as you make it out to be. While I’m a forensic psychiatrist, I’m not a lawyer. The appropriate step here is to call their attorney and ask them if their belief is legally correct. If they tell me it is not, then for all practical purposes I can view such a belief as false. Taken together, this is a fixed false belief or, in other words, a delusion. The delusion is about their legal standing in an active prosecution, so it is obviously functionally impairing. This would, at the very least, qualify for a diagnosis of delusional disorder.

This kind of gets back to my point I was making upthread about capacity, and the fact that, even if you wanted to, there is really no way to distinguish a stubborn misinformed person from a delusional person. We cannot read minds and these people are going to behave in the same way. They’re going to be motivated by false beliefs to take improper actions, and nobody is going to be able to convince them not to or that their beliefs are incorrect. I understand why people might want to draw a distinction between these groups but I can’t think of a way that it would be reliably possible to do so. The only thing I can think of would be if, after much struggle, the individual eventually relinquishes the false belief and begins to behave rationally. That might help to exclude delusional disorder, but it would also just obviate the entire question of competency or capacity.

 

[watto]

You can hold just about any belief, but give the appearance of behaving rationally, and save everyone a lot of time and $.

 

[Stagg737]

If someone has some sort of belief that they can’t die, and because of it they are making a decision to forego life-saving treatment, I think they lack capacity. They fundamentally do not understand the decision they are making and its consequences. That is what it means to lack capacity.

That's a pretty hyperbolic interpretation of the argument...

these all sound clear cases of lacking capacity.

Are you arguing that all devout Christian Scientists lack capacity to make medical decisions? That sounds like what you're arguing and would surely be struck down by any court as an unconstitutional interpretation of the law.

An isolated inability to understand medical facts is nonetheless a mental deficit.

I disagree with your interpretation of the situation. Refusal to accept a fact is NOT the same as the inability to accept a fact. I've had this exact situation occur where a patient refused to believe they had a kidney injury (refused to believe the labs were accurate) but was able to state that if he did have an AKI that it could be potentially dangerous. He was willing to accept that risk but did not actually believe it was there. . Both attendings I worked with (one forensics trained, one with 40+ years of psych experience) agreed that he had capacity to refuse treatment specifically for the AKI.

My question to the above was does the patient fail to appreciate how the diagnosis and treatment applied to himself, but they argued that because he acknowledged the diagnosis and outcomes were possible he retained capacity. His refusal to accept his situation was NOT an inability to understand.

 

[Stagg737]

It just says “mental function deficit.” An isolated inability to understand medical facts is nonetheless a mental deficit.

By this argument I could claim almost every patient lacks capacity in some way, including many physicians...

 

[Stagg737]

Without somehow getting them to demonstrate some form of understanding, how exactly do you propose that we reliably differentiate between someone who chooses not to hear the information versus somebody who can’t understand it.

Say this person dies and their family sues you because they believe he didn’t understand what he was doing when he refused treatment. If he never demonstrated that he actually did understand, what is your response going to be on cross-examination. “He was just refusing to listen when I tried to educate him about what he was doing.” That’s not a great defense.

Realistically, someone who refuses to listen to the information you present to them in such a way that they can’t affirmatively demonstrate understanding cannot be said to have capacity. Capacity is something the patient demonstrates, it is not something we can just divine.

No, you don't say that they lack capacity. You say that they were unwilling to participate and therefore cannot demonstrate capacity. Lacking capacity and refusing to participate are not the same thing and the latter should lead to an ethics and/or legal consult by the primary team. In the case of a true life-threatening emergency you give them treatment under the arguments of non-maleficence and beneficence.

 

[WisNeuro]

No, you don't say that they lack capacity. You say that they were unwilling to participate and therefore cannot demonstrate capacity. Lacking capacity and refusing to participate are not the same thing and the latter should lead to an ethics and/or legal consult by the primary team. In the case of a true life-threatening emergency you give them treatment under the arguments of non-maleficence and beneficence.

Exactly, people really need to be reading their state laws. In many instances, assumed capacity and competency is the default and lack of such is what needs to be proven, not the other way around. Also, this is where informed consent in laymen's terms is essential. They have a right to refuse the capacity evaluation after you explain what could and could not happen as a result of said evaluation.

 

[sloop]

Exactly, people really need to be reading their state laws. In many instances, assumed capacity and competency is the default and lack of such is what needs to be proven, not the other way around. Also, this is where informed consent in laymen's terms is essential. They have a right to refuse the capacity evaluation after you explain what could and could not happen as a result of said evaluation.

It makes no logical sense that someone can refuse a capacity evaluation. They might have the right to refuse a capacity evaluation, but only if they have capacity to refuse the capacity evaluation. The fact that a capacity evaluation is being performed itself calls that into question.

Yes, capacity is the default position, but by the time that you’re evaluating it formally, somebody has concerns that they actually lack capacity. At the point that there are things that suggest that someone lacks capacity, the default is no longer that someone has capacity. If someone expresses a choice that appears to the entire team to be irrational, without additional information the person can only be said to lack capacity. You’re supposed to do that your due diligence and actually evaluate their capacity, because it’s possible that the person can explain their decision in a way that actually proves they have capacity to make it. In that sense, when there are concerns about the patient lacking capacity, it is in a sense “on them” to prove that they have it.

In my state, capacity is a clinical decision and the state does not regulate it other than to say that physicians need to certify that the patient has incapacity for the decision. It does not define how capacity should be determined. Things get more complicated when you are trying to establish guardianship, but that’s not strictly a simple capacity determination.

 

[WisNeuro]

It makes no logical sense that someone can refuse a capacity evaluation. They might have the right to refuse a capacity evaluation, but only if they have capacity to refuse the capacity evaluation. The fact that a capacity evaluation is being performed itself calls that into question.

Yes, capacity is the default position, but by the time that you’re evaluating it formally, somebody has concerns that they actually lack capacity. At the point that there are things that suggest that someone lacks capacity, the default is no longer that someone has capacity. If someone expresses a choice that appears to the entire team to be irrational, without additional information the person can only be said to lack capacity. You’re supposed to do that your due diligence and actually evaluate their capacity, because it’s possible that the person can explain their decision in a way that actually proves they have capacity to make it. In that sense, when there are concerns about the patient lacking capacity, it is in a sense “on them” to prove that they have it.

In my state, capacity is a clinical decision and the state does not regulate it other than to say that physicians need to certify that the patient has incapacity for the decision. It does not define how capacity should be determined. Things get more complicated when you are trying to establish guardianship, but that’s not strictly a simple capacity determination.

It makes perfect sense that someone can refuse a capacity evaluation. As it is a clinical service and it is their right to do so. As part of that informed consent, you would inform them that refusing the evaluation does not preclude the possibility that the care team or hospital ethics committee may still deem that they do not have medical decision making capacity. But, they definitely have the right to refuse.

And, if that care team has concern about capacity, they should be able to document in a compelling way that the patient does not have that capacity to support their clinical opinion regarding capacity. If a formal evaluation has not been done due to refusal, that is noted and the opinion clearly states what their opinion is based on.

Medical decision making capacity, while a clinical decision, very often has statutes attached to it. I would be very surprised of your state does not have laws regarding this, particularly as it applies to the determination, and later the authorities and duties of the health care agent who has assumed the capacity should the patient be deemed to not have that capacity.

 

[sloop]

I disagree with your interpretation of the situation. Refusal to accept a fact is NOT the same as the inability to accept a fact. I've had this exact situation occur where a patient refused to believe they had a kidney injury (refused to believe the labs were accurate) but was able to state that if he did have an AKI that it could be potentially dangerous. He was willing to accept that risk but did not actually believe it was there. . Both attendings I worked with (one forensics trained, one with 40+ years of psych experience) agreed that he had capacity to refuse treatment specifically for the AKI.

My question to the above was does the patient fail to appreciate how the diagnosis and treatment applied to himself, but they argued that because he acknowledged the diagnosis and outcomes were possible he retained capacity. His refusal to accept his situation was NOT an inability to understand.

I did not evaluate your patient, but I would say that a patient who cannot accept that he himself has an AKI lacks appreciation. Part of capacity is being able to apply medical knowledge to your own situation. A delusional person with schizophrenia could tell me that they understood that sepsis could kill someone but that his labs didn’t show sepsis because it was part of a conspiracy to trap him in the hospital. That person would lack capacity. Even though they abstractly understand the consequences of foregoing treatment, they do not appreciate their own medical circumstances.

Appreciation is an important aspect of capacity. If you let the above schizophrenic person refuse treatment and die of sepsis, I think that you could be legitimately sued for letting someone make a decision they did not have capacity to make. Maybe there are details you didn’t disclose about your patient that distinguish it, but I don’t think that someone who rejects the validity of their medical test results and denies the fact that they have a serious medical problem has capacity.

By this argument I could claim almost every patient lacks capacity in some way, including many physicians...

No it couldn’t. Many people have some form of mental deficit, yes. But most people do not have mental deficits that severely impair their abilities to make decisions.

Also, whether this is true is irrelevant. My point is that the law cited did not preclude a determination of incapacity in the absence of a diagnosis, as was claimed. It only requires a “mental function deficit.” If you have a problem with what that phrasing allows physicians to do, you need to go have a conversation with the California legislature, not me.

No, you don't say that they lack capacity. You say that they were unwilling to participate and therefore cannot demonstrate capacity. Lacking capacity and refusing to participate are not the same thing and the latter should lead to an ethics and/or legal consult by the primary team. In the case of a true life-threatening emergency you give them treatment under the arguments of non-maleficence and beneficence.

And how exactly did you come to your determination that they were simply unwilling to participate and not unable to participate? Somebody obviously had concerns that the patient may lack capacity, which is why you’re evaluating them. You go in and they don’t say anything, so you determine that they’re volitionally refusing to talk to you. How exactly do you know that? What were your methods?

My point is that unless you can somehow read someone’s mind, you can’t necessarily tell why someone is not talking to you. As I mentioned above, absent all other information, it’s true that the default assumption is that a patient has capacity. But this is an explanation for why we don’t question capacity on everyone on entering the hospital, not guidance for how we evaluate someone when the question of capacity is raised. When someone raises the question of capacity, there are obviously reasons to believe they might lack it. In the absence of the patient demonstrating that they have it, the reasons for believing they lack capacity will generally prevail by default.