Competent Capacity Determination
Competent
Capacity Determination
Disease and Legal Standards
Often it is necessary to evaluate the functional ability of a family member. Accurate assessment will help avoid major conflicts within the family. The following information outlines the importance of neuropsychological testing.
Many families, judges and attorneys, need a measurement of an individual's abilities to assist in making important decisions.
Attorneys wishing to protect their clients by providing the most comprehensive scientific assessment, and conversely, avoid malpractice entanglements, are obliged to consider the Due Process in Competency Determinations Act. The practice of probate/family law requires that on occasion, determinations be made regarding a client's capacity to manage their affairs or execute wills.
The new progressive legal changes (California Due Process in Competency Determinations Act, DPCDA, Code 6100.5, Section 812) have outlined a method that suggests a standard of practice for such assessment. This new standard of determining a client's capacity includes requirements in many areas of mental functioning that had not previously been outlined. DPCDA establishes a new standard impacting legal practice.
Forensic evaluations in the form of neuropsychological assessments are very effective and the need for a quantifiable measure of a client's capacity has never been greater. It is important that a clear understanding of a patient's capacity be determined prior to critical medical-legal situations. Agreements for medical procedures, for instance, signed by patients under extreme stress or while receiving strong medication, may fall short of a reasonable standard of informed consent. Many patients facing a critical surgery process are unable to understand the complex legal wording in a release to proceed with a dangerous medical procedure. Newly enacted code, DPCDA, spells out in a clear and straightforward manner the mental and emotional guidelines of determining the capacity of someone entering into a contract. Those persons establishing a will of their estate, for instance, may find their decisions questioned at a later date if they are not currently or were not previously fully functioning.
We know that interview information alone is unreliable when formulating a diagnosis and certainly would be insufficient in establishing one's capacity to proceed in important legal decisions. For instance, significant disagreement is observed when physicians are asked to judge the competency of patients with mild Alzheimer's disease. (Marson D.C., et al., Consistency of Physician Judgment of Capacity to Consent in Mild Alzheimer's Disease, Journal of American Geriatric Society, Volume 45, Number 4, April 1997). The authors of these reports conclude that the previous accepted "gold standard" of physician judgment of dementia is not accurate or reliable. When neuropsychological test measures were added to provide further information in this study, degrees of deterioration and subsequent capacity of these Alzheimer's patients were determined.
Three levels of capacity were assessed in an Alzheimer's patient group.
Cognitive abilities related to legal standards ranging from a patient's capacity to "evidence a treatment choice" to the ability to "understand the treatment situation and choices" were measured in the above study. Alzheimer's patients were categorized based on cognitive performance. The conclusions of the research indicated that patients' levels of ability can be accurately assessed using neuropsychological test measures. The correspondence of a patient's cognitive abilities measured by these tests with the severity of their illness demonstrates a neurological model of competency that correlates substantially with legal standards of capacity. The use of well-standardized measures of functioning (neuropsychometric testing) across the range proposed by Probate Code 6100.5, Section 812, would comply with the needs of the statute and furthermore present a comprehensive picture of functioning regarding an individual's strengths and weaknesses. These procedures establish a professional, scientific measure of capacity. The neuropsychological measurement of ability combined with information from other sources leads to the most accurate and least refutable information of a person's capacity. The addition of actuarial data can add to diagnostic accuracy and in most cases is found to be superior to clinical impression. Retrospective estimates of an individual's functional ability are more problematic and open to question.
Informed consent to proceed with medical procedures, the execution of a will, or any contract may require legal input. Each area of law relies on the perception of a client's individual judgment and their ability to appreciate and fully comprehend what is being required of them. The neuropsychological evaluation provides the most comprehensive picture of an individual's ability.