The Assisted Decision-Making (Capacity) Act 2015: a discussion piece exploring some common questions arising for Psychologists.

Garret McDermott and Catherine O’Kelly

 

ADMA paper 2 image

Abstract

The aim of the current article is to provoke discussion and debate among Psychologists in Ireland in relation to the Assisted Decision-Making (Capacity) Act 2015. While we await the full commencement of the provisions of the Act many questions are being asked about how this will impact Psychological practice. Based on careful consideration of the Act, we discuss four such questions: (i) Who can carry out assessments of decision-making capacity?, (ii) How can Psychologists ensure that assessments of decision-making capacity are consistent with the Act?, (iii) How can Psychologists fulfil the responsibility to maximise decision-making capacity among relevant persons? and (iv) Is there a role for cognitive or neuropsychological testing in assessments of decision-making capacity under the Act?  A schedule of questions to help guide the Psychologist will be provided in answering the second of these questions while practical suggestions are provided in answering the third of these questions. Other questions remain, some of which are highlighted.

 

Introduction

The implications of the Assisted-Decision Making (Capacity) Act (2015)1 (hereafter referred to as the Act) for practice among Psychologists in Ireland remain unclear.  In recent years we have seen this topic come up time and again at training events, team meetings, and in supervision sessions. The current article builds on the overview of the Act published separately in our companion article. The authors note that many questions about the Act have arisen for Psychologists.  Here, we discuss some of those that we have encountered.

Firstly, one question that has come up relates to who is qualified to complete an assessment of decision-making capacity. We briefly outline what the Act says about this.  Current custom and practice appears to differ across the country. The Act is quite clear and opens the way for a range of healthcare professionals to play a role in such assessments.

A second question common question relates to how Psychologists can ensure that their assessments are consistent with the Act. Such questions are perhaps typical during any period of legislative change (e.g. the introduction of the Mental Health Act, 2001).  It is one thing to understand the Act but another to change and transform/reform practice. Building on the outline of the Act we provide in our companion article, we have devised a short schedule of questions that Psychologists can ask themselves to try to stay true to the definition of decision-making capacity in the Act as well as the Act’s guiding principles. We intend this schedule to be classed as a work in progress and we hope that it will spur on discussion.  It is not intended as an instructional guide nor is it a replacement for legal advice.

As outlined in our companion article, the onus is on those assessing decision-making capacity to maximise capacity among relevant persons. This forms the subject of our third question. In our view, such an onus represents a significant step.  If implemented conscientiously it should greatly help to maintain the integrity and quality of decision-making assessments. We offer some initial views on this subject.

The fourth and final question relates to the role of cognitive or neuropsychological testing during assessments of decision-making capacity. There is a debate in the field on this topic and the authors accept that is not yet resolved. We offer our view based on our understanding of the Act. In short, such testing is likely to have a limited, if any, role in assessments of decision-making capacity under the Act.

There are many other questions that we will not touch on, some practical and some conceptual. We hope that our views trigger discussion and debate in the coming months while we await further developments in terms of the Act being fully commenced.

 

Question 1: Who can carry out assessments of decision-making capacity?

The Act specifies that medical and other relevant healthcare professionals are appropriately qualified to conduct assessments of decision-making capacity in relation to matters relevant to consent to treatment or examination. While there is a tradition in Ireland of such assessments being conducted by medical professionals, such as psychiatrists, and – perhaps to a lesser extent – by psychologists, the Act recognises that members of other professions may be the most relevant persons in certain circumstances.  The professional assessing capacity should be the person with the best knowledge of the decision to be made.  In most circumstances, it is the professional that requires a specific decision to be made that will have responsibility for ensuring that the person’s decision-making capacity is maximised.

Differing views among healthcare professionals relating to whether or not a relevant person has capacity to make a specific decision may be a key factor that leads to an assessment of decision-making capacity. The HSE published draft guidance on the Act in 201713 which offers broad guidance about this eventuality in more detail than is possible here. Their guidance emphasises the importance of following due process under the Act and ensuring that the functional definition of capacity is used. In cases where it is not possible to reconcile conflicting views among professionals following appropriate assessments, the professional that requires the decision to be made must either act in good faith on behalf of the relevant person or refer the case to court. At present, codes of practice to support this are not available.

In practical terms, seeking the assistance of other appropriate health and social care professionals may be necessary in the course of an assessment of decision-making capacity. This may also reflect ethical practice. Indeed, some assessments of decision-making capacity in health, social care and mental health settings may be carried out by more than one professional.  For example, one of the authors has conducted a number of decision-making capacity assessments in an acute psychiatric unit for older adults together with an Occupational Therapist where the decisions have pertained to choosing where to live. On these occasions, it was clear when planning the assessment that the Psychologist possessed skill required to maximise communication and experience in conducting such assessments while the Occupational Therapist possessed expertise regarding the person’s functional and daily living skills and needs. Both professionals had pre-existing relationships with the patients.

The question of who can and should carry out an assessment of decision-making capacity is of particular interest to Psychologists. Anecdotally, we are aware that in many settings there is a reliance on Psychology to carry out such assessments. It is common that other healthcare professionals are reluctant to engage in assessments of decision-making capacity even though they may be the most well-placed to ascertain the person’s will and preference as well as their decision-making capacity. In contrast, in other settings, there may be reluctance to cede the role of assessing decision-making capacity to Psychology even where a Psychologist might be the most well-placed professional. This contrast highlights that the full commencement of the Act may impact Psychologists across settings differentially. It cannot be assumed, for example, that all Psychologists will have a significant increase in referrals for assessments of decision-making capacity. In some settings, however, this likelihood is a risk.

At this stage, without full commencement of the Act and clear codes of practice, it is worth emphasising the spirit of the Act: it does not aim to increase the number of formal assessments but is rather aimed at ensuring that relevant persons are involved to the greatest extent possible in decision-making. Current practice is already consistent with many aspects of the Act.  The HSE draft guidance for health and social care professionals13 indicates that a functional approach to capacity has already been taken by Irish courts.  Furthermore, this guidance document highlights elements of the Act that are consistent with the National Consent Policy14, with which all health and social care staff should be familiar, as well as guidance from HIQA in relation to supporting people’s autonomy and decision-making15.

Psychologists are among the professions in health and social care settings that can reasonably hold a strong position in relation to maximising the capacity of relevant persons. This is covered in further detail in Question 3, below. It may be the case that Psychologists can offer training, education and support to healthcare colleagues in relation to this. Even though the Act remains incompletely enacted at present, it is our view that ethical practice guides us to operate within the spirit of the Act in this way.

 

Question 2: How can Psychologists make sure that assessments of decision-making capacity are consistent with the Act?

Based on the overview of the Act provided in our companion article, a schedule of questions has been designed to support Psychologists to ensure that their assessments of decision-making capacity are consistent with the Act (see Table 1, below). In designing this, we paid specific attention to the definition of (functional) capacity as well as to the guiding principles of the Act. Effort has also been made to briefly outline the rationale for each question posed in the schedule. This should allow transparency in relation to our interpretation of the Act and allow debate. The Act is not prescriptive in relation to assessments of decision-making capacity. However, within health and social care settings best practice considerations must be taken. There is no set form or pro forma for conducting an assessment. Given the range and breadth of contexts in which an assessment will be carried out and also the range of professionals and, indeed, non-professionals to be involved this helps to support the spirit of the Act. In fact, drawing on documents from other jurisdictions must also be done cautiously given the differences between the Irish Act and its equivalent in other countries.

We do not expect that this schedule provides an exhaustive guide that will ensure that all assessments meet all the requirements of the Act. It is, however, intended to be a prompt that will help Psychologists to plan and conduct their assessments. As such, the schedule is intended to support reflection and learning. It does not replace legal advice. This is our summary of key points. We encourage Psychologists to engage with the Act and further develop this basic schedule.   A similar schedule is provided in the recently published BPS document What makes a good assessment of capacity?16

Table 1: Schedule of questions suggested to help ensure that assessments of decision-making capacity are consistent with the definition of capacity in the Act and with the guiding principles of the Act

Question

(Before the assessment)

Rationale for Question

What was done to support this person to make this specific decision at this time?

Before deciding if a decision-making capacity assessment is required, efforts to enhance/maximise capacity should be made. This supports a person’s right to autonomy. The implication here is that we must support decision-making and the development of capacity as an inherent part of our work. In some settings, this may entail ensuring appropriate methods of communication are in place. Being explicit about such supports will help to ensure that the relevant person’s rights under the Act are respected.  It may be that efforts should be focussed on this prior to commencing a formal assessment. This is not specific to a professional completing an assessment of decision-making capacity but rather holds true within health and social care settings.

What is the evidence that an assessment of capacity is required? This is in line with the Presumption of Capacity guiding principle. Cognitive impairment is not synonymous with impairment of decision-making capacity.  As such, a diagnosis of, say, Acquired Brain Injury, Intellectual Disability or dementia alone does not provide sufficient evidence that such an assessment is required.

Explicitly articulating who has questioned that the relevant person may lack capacity and why they are concerned will also help to maintain clarity and ensure the Presumption of Capacity is respected. Identifying what is triggering the need for the assessment will also help to clarify the purpose of the assessment.

What is the specific decision being assessed? This is both time and situation specific and fits with the functional definition of capacity.  This calls into question a consideration of timing issues: can the decision be deferred until the person is in a better position to make the decision?

 

What is the pertinent information regarding the decision? The assessor needs to be fully informed about the decision and should have the best knowledge of the reasons for and against the proposed decision.

 

Question

(Before and During The Assessment)

Rationale for Question

(Before and During The Assessment)

What is the person’s will and preference about the decision being assessed?

This is in line with the Will & Preference guiding principle.  It may touch on the person’s right to make an unwise informed decision. It also allows for the person having the right to change their mind. This will entail the practitioner discussing the specific decision to be made with the relevant person.

This also opens up consideration of how the person wishes the assessment of decision-making capacity to proceed and also issues pertaining to consent to the assessment. The person’s will and preference in relation to loss or potential loss of capacity should also be taken into account.

(During The Assessment)

Is the person able to understand information relevant to the decision being made?

This is a core part of the functional definition included in the Act. A general understanding of the most essential points of information may be sufficient.

 

(During The Assessment)

Is the person able to retain the information long enough to make a voluntary choice?

 

This is a core part of the functional definition included in the Act.  Note:  the person does not need to be able to retain the information for longer than the time required to weigh it up as part of their decision.

 

(During The Assessment)

Is the person able to weigh up the information as part of the decision-making process?

 

This is a core part of the functional definition included in the Act.  It is only necessary to demonstrate an ability to use and weigh-up the key points rather than every detail.

 

(During The Assessment)

Is the person able to communicate the decision made (by any method)?

This is a core part of the functional definition included in the Act.  Note: this communication can be by any method and is not necessarily verbal.

 

(During The Assessment)

What efforts to enhance capacity have been put in place?

The onus is on the assessor to maximise capacity under the Act. In contrast to the first question in the schedule, here we indicate that efforts to enhance capacity can form part of the assessment process as required.

Question

(Following The Assessment)

Rationale for Question

Is a clear statement of the outcome of the assessment made? A clear statement of the outcome of the assessment should be made. Where the person is deemed not to have capacity to make the specific decision, then the basis for this should also be articulated. This should be discussed with the relevant person if possible.

 

Are any interventions required and, if so, are they proportionate and least intrusive?

This is in line with the Proportionate and Least Intrusive Interventions (only when needed) guiding principle. It may also touch on the stepped levels of support indicated in the Act. Such interventions should be consistent with the person’s will and preference, beliefs and values, even where it is found that they currently lack decision-making capacity.

 

 In the experience of the authors, many of the questions in the schedule can (or should) form part of a comprehensive psychological assessment and be reflected in an assessment report. Again, these questions are not designed to structure a report, but it might be an instructive exercise to compare a completed report to this list. Finally, it is also the view of the authors that many Irish Psychologists have already been conducting assessments of decision-making capacity that meet most of these criteria for a number of years. As above, in awaiting the full commencement of the Act, such attention to the spirit and provisions of the Act is appropriate in our view.

 

Question 3: How can Psychologists fulfil the responsibility to maximise decision-making capacity among relevant persons?

One of the responsibilities falling to the assessor is to maximise the decision-making capacity of the relevant person. The onus to maximise decision-making capacity emerges from the rights orientation of the Act: this supports autonomy and self-determination and protects those who may have cognitive impairment (and, indeed, those without cognitive impairment) that fundamentally have the capacity to make specific decisions or be involved in decision-making. As implied above, capacity building should not be limited to the course of a formal assessment: efforts to support and enhance decision-making capacity should be built into typical clinical practice.

Various authors and bodies have given advice about maximising capacity. British Psychological Society2 guidance, for example, broadly indicates that consideration must be given as to whether it would be possible to improve decision-making capacity through supporting the person’s functional abilities by:

 

(a) Offering education or additional support in relation to the decision to be made and/or

(b) By simplifying information about the decision to be made (e.g. by providing pictorial and other augmentative communication aids).

 

Moye and colleagues3 offer a detailed range of practical clinical strategies for maximising decisional capacity in their review of neuropsychological predictors of decision-making capacity in dementia. These strategies are similar to the kinds of strategies that Psychologists typically employ when working with any service-user. Their suggestions consist of the following:

  1. Minimize background noise; speak slowly and directly; make eye contact with the patient;
  2. Break diagnostic and treatment information into small segments;
  3. Discuss one segment of information at a time;
  4. Inquire about understanding of such information with simple questions;
  5. Use cues, such as bulleted lists with key information, pictures, and diagrams;
  6. Allow extra time for responses and, in general, slow down the discussion process;
  7. Repeat and rephrase information that may not be understood;
  8. Summarize key aspects of information, such as reviewing key risks and benefits of each treatment, prior to asking the patient for treatment preference;
  9. Provide corrective feedback if the patient has misunderstood key information;
  10. Inquire directly about values or concerns that may underlie treatment preferences including concerns about pain, consideration of ‘‘being a burden,’’ worries about finances, fears of dying, religious and cultural traditions;
  11. Focus on the most salient information for the patient in light of personal preferences and values, to minimize the amount of information the patient must balance when weighing preferences.

 

The recent BPS16 document outlines that where a person has been deemed to lack capacity, an awareness of the reasons for this may indicate specific inputs to increase capacity.  They offer broad suggestions similar to those by Moye and colleagues for situations in which lack of capacity relates to mood, learning or intellectual disability/cognitive impairment, lack of knowledge of the necessary procedure, and cognitive decline due a neuro-degenerative condition such as dementia.

In their editorial on moving toward an inclusionary approach to decisional capacity, Peisah and colleagues4 introduce the acronym ASK ME as a practical model to maximise participation in decision-making. This stands for:

  • ASSESS: being aware of strengths and deficits may help the assessor to construct the assessment in a way which best simplifies the task and maximises understanding;
  • SIMPLIFY: limit the assessment to covering the decision to be made. Move away from global decisions to specific decisions. Pitch information at the person’s level of understanding;
  • KNOW: being aware of who the person is, what they prioritise in their life, what their values are, and their past patterns of decision making may set the assessor in the best place for an assessment that is as collaborative as is possible. In short, find a common ground with the person by learning about what is important in their life right now.
  • MAXIMISE: Scaffold the person’s ability to understand by adapting information. Attend to factors that may detract from the person’s ability to engage with the assessment. Find the most appropriate way to communicate (e.g. use of visual aids, translators, written materials, worksheets etc.). Based on your knowledge of the person, conduct the assessment at a time that is best for them;
  • ENABLE: tailor the degree of support as required to facilitate the person’s participation in the assessment. If the assessment takes multiple sessions, then allow for that.

By emphasising the onus on the assessor to maximise capacity, the need for the most appropriate person to carry out the assessment is clear. Different healthcare professionals will be differently qualified to complete specific assessments. This may raise challenges to the individual or collective power base within healthcare settings.  The onus also makes it clear that great efforts should be applied before a final conclusion is reached – an assessment of decision-making capacity is not a simple thing. This is only fitting, in our opinion, given the often great implications of assessments of decision-making capacity.

As outlined in the schedule of questions to support a Psychologist to meet their obligations under the Act (Table 1, above), the person conducting the assessment may also be involved in developing a programme to support and enhance capacity development following the assessment. This may entail seeking input of other health and social care professionals.

The above suggestions are useful in helping Psychologists plan how to maximise capacity. Although written in the context of other jurisdictions, these ideas seem clinically applicable and consistent with the Act. Based on the experience of the authors with conducting assessments of decision-making capacity across a range of settings, we offer the additional generic pointers outlined in Table 2, below.

 

Table 2: Additional generic ideas to help maximise decision-making capacity

Maximising decision-making capacity
  • Treat modifiable conditions (e.g. episodic mental health difficulties)
  • Treat delirium
  • Compensate for sensory difficulties where possible
  • Choose most appropriate location and time for assessment
  • Augment and adapt communication styles where required
  • Make use of multiple assessment sessions if needed
  • Provide appropriately pitched information and education to the person to deepen their knowledge of the decision to be made. This can be in multiple formats (written, audio, video)
  • Encourage the person to ask questions
  • Help the person to fully understand their rights
  • Devise vignettes to help the person understand the pertinent information
  • Provide pertinent information to the person if required
  • Conduct the assessment in a familiar environment if this supports the person to engage
  • Make use of formal assessments of decision-making capacity only where they are relevant and best suited to the person’s circumstances

 

 

Question 4: Is there a role for cognitive or neuropsychological testing in assessments of decision-making capacity under the Act?

A question that frequently arises is whether decision-making capacity assessments should include cognitive or neuropsychological testing. Conceptually, decision-making capacity may be classified as either a purely cognitive task, a purely procedural task or a mix of both5. Moye and Marson5 outline, for example, that capacity to consent to treatment may be considered primarily a cognitive task whereas capacity to drive may be primarily a procedural task. Capacity regarding independent living and financial management, both of which frequently come up in clinical practice, may involve elements of both. Given that decision-making capacity is so often at least partly a cognitive task, it is understandable that Psychologists conducting assessments of decision-making capacity ask this question.

 

A growing body of research has investigated the neuropsychology of decision-making capacity often with an emphasis on neuropsychological correlates or predictors of decision-making capacity. A full literature review is beyond the scope of the current paper but consider, for illustration, decision-making capacity among people living with dementia. One relevant study by Palmer and colleagues6 explored the neuropsychological correlates of the capacity to consent to taking part in clinical research and to appoint a research proxy among those with Alzheimer’s Dementia. Their findings indicated that different elements of decision-making capacity were correlated with different patterns of cognitive functioning. The capacity to appoint a proxy and to consent to a drug trial were predicted by performance on the conceptualisation and initiation/ perseveration subscales used while the capacity to consent to a neurosurgical RCT was predicted by the memory subscales used. The authors advise caution due to the exploratory nature of the study but note that the results are consistent with our current understanding of Alzheimer’s Dementia and also with previous research findings.

 

A range of other studies and reviews converge on the general point that cognitive testing in people with dementia predicts or correlates with decision-making capacity3,7,8,9,10. Overall, the literature might appear to make a compelling case for conducting assessments of cognitive functioning as part of decision-making capacity assessments. In the view of the authors, however, Irish Psychologists should be aware that this may not always be consistent with the Act. Our reasoning for this is outlined below.

Firstly, the use of general measures of cognitive or mental status, such as the Mini Mental State Examination (MMSE) or Montreal Cognitive Assessment (MoCA), is discouraged in assessments of capacity. They are screening measures designed to identify the presence of cognitive impairment with reasonable sensitivity and specificity. They were not designed for judging a person’s ability to make a specific decision at a specific time. The HSE draft guidance document13 states clearly that tests of cognition and intelligence should not be used for assessing decision-making capacity. As Grisso and colleagues state, cognitive dysfunction cannot be considered to be synonymous with critical impairment of decision-making abilities11. It is our view that the use of such tests to determine decision-making capacity would be consistent with the status or global approach to capacity. This would be inconsistent with the functional approach enshrined in the Act. If a score below a cut-off that indicates the presence of cognitive impairment is interpreted to indicate that the person lacks decision-making capacity, this could be seen to contravene the presumption of capacity. Similar reasoning may apply to broad measures of current or premorbid intellectual functioning.

 

Secondly, the current research literature, as touched on above, broadly demonstrates the unsurprising association between significant impairment and lack of decision-making capacity. It seems a truism to state that cognitive impairment is a strong predictor of decision-making capacity. However, the way in which cognitive functioning and capacity are associated remains incompletely understood. For example, discrepancies between global cognitive ability as measured on standardised neuropsychological tests and decision-making capacity in relation to financial and healthcare decisions may be more common among older adults than some Psychologists anticipate. Han and colleagues12 recently demonstrated that in a sample of 689 older adults almost 24% of their sample showed a significant discrepancy between the two. Within this, two patterns were found; in some, the level of decision-making capacity fell below the level of global cognition while for others it surpassed the level of global cognition. Han and colleagues conclude that this finding supports the idea that cognition and decision-making capacity are in fact separable constructs. This also reinforces the point made by Palmer and Harmell7 that conclusions cannot easily be drawn about the associations between cognitive deficits and impairments of decision-making capacity. There is a clear need for further research and the development of appropriate tools in this area.

 

Thirdly, the limits of the tools available to us also influence how we understand the association between cognitive function and decision-making capacity. Palmer and Harmell7, in their review of healthcare related decision-making capacity, cogently outline that such research, their own included, does not allow empirically based conclusions to be drawn about the associations between specific deficits in cognition and impairments in decision making capacity. This, they outline, is in part associated with the psychometric characteristics of available tests of decision-making capacity. We would add that this holds true for neuropsychological tests too. For example, floor effects may interfere with the Psychologist’s ability to accurately interpret performance and adequate norms are not always readily available (e.g. for older adults or for people with intellectual disabilities). The range of contexts in which Irish Psychologists may find themselves asked to assess decision-making capacity further emphasises this point about the available tools. Many neuropsychological tests and other psychometric tools are heavily verbally loaded. This may pose challenges for people with limited verbal skills for reasons that are developmental (such as some of those with Autism Spectrum Disorders) or acquired (such as some of those who have had a stroke). Sensory and motor difficulties may also impact reliability due to necessary subtle shifts from standardised administration. All Psychologists are expected to be aware of and account for such factors that may affect test taking performance.

Fourthly, returning to the nature of the tests available to us, some areas of cognitive functioning may be more easily measured than others. We invite Psychologists to engage with this debate critically. Many of us have access to tools that will measure abilities such as acquiring and retaining new visual and verbal information or measuring basic receptive and expressive language abilities. We do not, however, have ready access to reliable tools that tap into complex skills that may involve the interplay between cognitive and procedural elements. Our assessments of complex reasoning, problem-solving and judgment tend to have lower reliability. The ecological validity of such assessments may also be questioned.

 

It is our view that the use of specific cognitive or neuropsychological tests, such as memory tests, should be judicious. Well-chosen neuropsychological or psychometric tests may add depth for the Psychologist once the above cautions are recognised. Such tools have many uses including helping to assess insight, reasoning, specific cognitive functions, establishing a baseline of functioning, and finding sensible ways to support a person’s decision-making. The recent BPS document indicates the value such tools add in aiding the Psychologist to form an opinion regarding capacity, helping the Psychologist prepare for interview with the relevant person, and helping to clarify how best to support the person’s capacity16. However, even when a person performs very poorly on a well standardised tool, it does not necessarily imply a lack of capacity. Under the functional approach to capacity, the person must only retain the information long enough to make the decision voluntarily. Efforts to maximise the person’s capacity in this case should aim to compensate for a memory impairment.

 

Conclusion

Psychologists, and other healthcare professionals in Ireland, await the full commencement of the Assisted Decision Making (Capacity) Act 2015. In the interim it is our view that Psychologists should work within the spirit of the Act. Familiarity with the guiding principles of the Act, the National Consent Policy, and documents such as HIQA’s guide to supporting autonomy15 and the recent BPS document16 are useful resources in this respect. It is expected that the HSE’s draft guidance on the Act13 will be updated following the initial consultation process.

We remain uncertain of the exact implications of the Act for Psychologists. We believe this is reflected in the conversations about the Act that take place within multi-disciplinary teams and among groups of Psychologists. In this paper we have discussed four questions that we have come across frequently in recent years. Our aim was to encourage discussion and debate regarding the Act. We hope that Psychologists will use this paper as a departure point for this. There are many other questions to which we have not attended. We hope that others may begin to weigh these up. Included among the other questions we have heard with some frequency are:

 

  • If there is a significant rush for assessments when the Act is fully commenced, how can Psychologists manage this?
  • What resources does a Psychologist require when conducting an assessment of decision-making capacity?
  • What happens in a case where the person says all of the things appropriate to pass the assessment but does not/cannot apply any of them in their day to day life? Is this related to the frontal lobe paradox that is written about in the context of Acquired Brain Injury and can we accommodate this under the Act?
  • What supports and protections will exist for a Psychologist when the relevant person wishes to make a decision that may be deemed as unwise?
  • How do we reliably establish the person’s current and past will and preference?
  • Can we resolve the tension between ‘best interests’ and ‘will and preference’ in a healthcare setting where there is a clear duty of care?
  • Are we really ready for the emphasis on will and preference and all of the challenges that it entails?
  • What are the implications for Psychologists when people refuse to engage in an assessment of decision-making capacity?
  • How does the Act interact with the Mental Health Act and how does it pertain to those involuntarily detained?
  • How does the Act deal with the topic of advance healthcare directives?
  • How will our professional code of ethics align with the provisions of the Act?
  • When will a question be referred to court and what process will be in place around this?

The Act makes clear that a range of healthcare professionals can (and should) be involved in conducting assessments of decision-making capacity. We offered a schedule of questions to help Psychologists to judge whether their assessments are in line with the definition of capacity and with the guiding principles of the Act which departs slightly form similar Acts in other jurisdictions. Psychologists also need to consider the practical ways in which we can maximise capacity among relevant persons. Finally, it is our current view that cognitive or neuropsychological testing in assessments of decision-making capacity may not always be consistent with the guiding principles of the Act. We advise cautious and limited use of these tests in this context. We look forward to future developments regarding the Act and to continuing this conversation.

 

Authors

Dr. Garret McDermott, Principal Clinical Neuropsychologist, Psychology Department, Tallaght University Hospital, Tallaght, Dublin. Corresponding author, contact: garret.mcdermott@tuh.ie

 

Dr Catherine O’Kelly, Clinical Psychologist, St. Vincent’s Hospital Fairview Mental Health Rehabilitation Team, Dublin.

References

1. Assisted Decision-Making (Capacity) Act 2015, Ireland [statute on the internet] , c.2015, [cited 2018 October 06]. Available from:

http://www.irishstatutebook.ie/eli/2015/act/64/enacted/en/pdf

2. British Psychological Society. Assessment of Capacity in Adults: Interim guidance for Psychologists. Leicester, UK; 2006.

3. Moye J, Karel MJ, Gurrera RJ, Azar AR. Neuropsychological Predictors of Decision-Making Capacity over 9 months in Mild-to-Moderate Dementia. Journal of General Internal Medicine. 2006; 21: 7 – 83.

4. Peisah C, Sorinmade OA, Mitchell L, Hertogh CMPM. Decisional capacity: toward an inclusionary approach (A Guest Editorial). International Psychogeriatrics. 2013; 25(10): 1571 – 1579.

5. Moye J, Marson DC. Assessment of decision-making capacity in older adults: an emerging area of practice and research. The Journals of Gerontology. Series B. Psychological Sciences and Social Sciences. 2007; 62B(1): 3 – 11.

6. Palmer BW, Ryan KA, Kim HM, Karlawish JH, Appelbaum PS, Kim SY. Neuropsychological correlates of capacity determinations in Alzheimer disease: implications for assessment. American Journal of Geriatric Psychiatry. 2013; 21(4): 373 – 381.

7. Palmer BW, Harmell AL. Assessment of healthcare decision-making capacity. Archives of Clinical Neuropsychology. 2016; 31: 530 – 540.

8. Earnst KS, Marson DS, Harrell LE. Cognitive model of physicians’ legal standard and personal judgments of competency in patients with Alzheimer’s disease. Journal of the American Geriatric Society. 2000; 48: 919 – 927.

9. Jefferson AL, Lambe S, Moser DJ, Byerly LK, Ozonoff A, Karlawish JH. Decisional capacity for research participation in individuals with mild cognitive impairment. Journal of the American Geriatric Society. 2008; 56: 1236 – 1243.

10. Marson DC, Cody HA, Ingram KK, Harrell LE. Neuropsychological predictors of competency in Alzheimer’s disease using a rational reasons legal standard. Archives of Neurology. 1995; 52: 955 – 959.

11. Grisso T, Appelbaum PS, Mulvey EP, Fletcher K. The MacArthur Treatment Competence Study. II: Measures of abilities related to competence to consent to treatment. Law and Human Behavior. 1995; 19(2): 127 – 148.

12. Han SD, Boyle PA, James BD, Yu L, Barnes LS, Bennett DA. Discrepancies between cognition and decision making in older adults. Aging Clinical and Experimental Research. 2016; 28(1): 99 – 108.

13. Health Service Executive. Assisted Decision-Making Act (2015): a guide for health and social care professionals (draft form for consultation). March 2017.

14. Health Service Executive. National Consent Policy. May 2013. Available from: https://www.hse.ie/eng/about/who/qid/other-quality-improvement-programmes/consent/national-consent-policy-august-2017.pdf.

15. Health Information and Quality Authority. Supporting people’s autonomy: a guidance document. Dublin, Ireland; 2016.

16. British Psychological Society. What makes a good assessment of capacity? Guidance. Leicester, UK; 2019.

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