Ethics in Capacity Assessment

Gary Goldsand

Clinical Ethicist, Royal Alexandra Hospital

and Alberta Health Services

Assistant Clinical Professor, Faculty of

Medicine and Dentistry, University of Alberta

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Upcoming Lunchtime Sessions

• March 14th Gary Goldsand / David Campbell

• Pros and Cons of Harm Reduction

Practices in Clinical Settings

• March 28th Gary Goldsand

• How Much Truth? The Ethics of Honesty

in Clinical Settings

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Alberta Health Ethics

Week – March 4 - 8

• “An Examination of Patient Autonomy: The role of the patient

in planning ethically reasonable outcomes.”

• “The Allocation of Resources in Stroke Rehabilitation”

• "It's My Right! An Interdisciplinary Exploration of Patient

Rights Claims at the Foothills Medical Centre.”

• Short Snappers on Ethical Dilemmas in the Community

• "Why Zebras Don't Get Ulcers: Understanding & Dealing With

Moral Distress".

• “Vulnerable but Reluctant Recipients of Care: Ought there be

limits to our efforts?”

• For more info and to register…….go to

• https://vcscheduler.ca/schedule20/calendar/calendar.aspx?ID=1268

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General Goal of Ethical

Analysis of Common

Clinical Practices…..

• To understand the gap between current

practices and ideal practices.

• To collectively close that gap.

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Today’s goals

• To reflect on what capacity assessment is, and what it is

supposed to be.

• To discuss the role of bedside clinicians in the ongoing

assessment of capacity, and how this might relate to

“formal” capacity assessment.

• To share thinking about how to keep improving the way we

incorporate capacity assessment into sound decision

making processes.

• To continue suggesting that “Shared Decision Making,”

properly understood, is the desired model when patients’

capacities are in question.

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Some ethical challenges in

Capacity Assessment

• The extreme greyness of the line between capacity and

incapacity.

• How specific to be about determining what to test.

• When formal assessment is needed and when not.

• Balancing respect for patients’ liberty with concern for

their safety.

• Knowing what patients “would have said” when they

were more capable.

• When you suspect that substitute decision makers need

capacity assessment more then the patient.

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Relationship between Law and Ethics

• Intended to be a dynamic relationship.

• Laws are based on ethical foundations, and if

the law does not quite “get it right,” revision is

possible, and expected.

• Reasonable for clinicians to consider both the

law, and ethical obligations, in the practical

interpretation of a patient’s capacity.

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The Anatomy of a Good Decision

• 1. Excellent initial conversations about diagnostic tests

and clinical histories.

• 2. Patient or surrogate is capable of understanding

the situation, and appreciating likely consequences.

• 3. Patient or surrogate actually understands the clinical

situation, and likely consequences.

• 4. Physician and team actually understand the pt’s

situation.

• 5. Physician is aware of how patient wishes to share the

decision, and facilitates this.

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What Should we Be Assessing?

• Global capabilities? • eg. “competent or incompetent”

• Domains? • eg. “health decisions” or “whom they can

associate with.”

• Specific questions? • eg. “where do you want to live?” or “whom do you

trust to help you with decisions?”

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Formal and Informal Assessment

• Formal testing can be done by physicians or

Designated Capacity Assessors – DCAs.

• Whatever the results, informal assessment of

patients’ day to day capacities ought to happen.

• Can be difficult to know when ongoing informal

assessment needs to be formalized.

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Capacity Assessment

as an Ongoing Process

• Fluctuating cognition and awareness are pretty

common among our patients.

• Whenever patients face a decision of

significance, clinicians should be aware of 1)

are they capable of understanding options, and

2) Do they actually understand the options?

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After the Assessment….

• Patients must still be consulted by their agents, as

part of a shared decision making process.

• Clinicians can and should record in the chart any

significant opinions stated by patient.

• Potentially vulnerable patients ought to be

“watched” by the health care system when well-

being is in question.

• Agents and informal decision makers need to be

aware of core standards of substitute decision

making.

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Refresher on Decision Making Standards

1. Ask the patient.

2. If pt. cannot guide decisions, seek a

substituted judgment – what would the pt.

have wanted when capable?

3. If we do not know, then use the best interests

standard – what is best for this patient,

considering her history and values?

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Conflicts of Interest

• Do not ignore these if they come to your

attention.

• Understand the challenges they can raise for

decision makers.

• Be willing, potentially, to advocate for patient if

you fear the substitute decision maker is

“succumbing” to conflicted interests.

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Role of individual Clinicians in C.A.

• As a team, to talk to each other about how well

“marginal patients” are understanding things

today.

• To watch for instances where the “capable”

patient may not be understanding things, or

when the “incapable” patient is.

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Is there a problem “out there?”

In my experience, yes.

1. We tend to assess capacity, but not whether pt. actually

understands situation.

2. Substitute decision makers are not held to decision

making standards by anyone.

3. Not enough awareness of how patients want to share

decisions.

Our assessors do a great job with difficult assessments,

but all bedside clinicians need to be aware of their roles.

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Beware of:

• Merely identifying a decision maker, without

holding them to proper standards.

• Failures to include all people who ought to

share decisions.

• Failing to recognize that between capacity

assessment, and a good decision, is a process

of ensuring decision makers are well-informed.

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Optimizing substitute decision making

• Awareness of decision-making standards.

• Consult with patients regularly and thoroughly, for as long as possible.

• Understand that the purpose of legislation is to amplify and preserve the voice of the patient.

• Safety concerns must be balanced by liberty considerations.

• Get to know this patient’s story.

• Ensure situation is revisited appropriately, by caregivers.

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Other Challenges

• Assessing the capacity of surrogate decision

makers…..?

– How should this be done?

– What reasonably triggers action if a

surrogate’s capacity is in question?

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Questions for discussion:

• What role do you see for yourself in assessing the capacities of your patients?

• In your experience, what situations require formal capacity assessment?

• When patients have poor insight and poor memory, but retain wishes that place them at risk, does our capacity assessment process serve them well? (Does our current system manage to respect persons well?)

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Gary Goldsand Clinical Ethicist, Royal Alexandra Hospital and

Alberta Health Services

Assistant Clinical Professor, Faculty of Medicine

and Dentistry, University of Alberta

780 735 5330

gary.goldsand@albertahealthservices.ca

Discussion? ……Thanks