Patients Lacking Decision-making Capacity

by Mark Hughes, MD, MA

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    00:01 Now, there are also going to be cases where we have patients that do not have the ability to make their own decisions.

    00:07 We're going to have another lecture on assessment of decision making capacity.

    00:11 But in this case, when the patient can't make their own decisions, we need to find an alternatives decision maker or what we would call a surrogate decision maker.

    00:21 So this is, in cases where the patient lacks decision making capacity.

    00:26 There's an authority that says this is the other person that makes decisions for them on behalf of them for making medical treatment decisions.

    00:38 So the actual patient may still be communicative, they may still be able to talk to you and so on.

    00:45 But they just don't have the reasoning ability or the ability to understand all the information to process it, to make their own decision.

    00:52 We still say they might be able to accent or descent.

    00:56 So accent would mean, they can express a willingness to accept the plan and descend would say, a lack of willingness to accept the plan.

    01:05 So you can think of a child.

    01:07 A child does not have decision making capacity.

    01:09 Their parents might need to make decisions for that child.

    01:13 But the child might still be able to say, "Yes, I'm willing to take this pill to make me feel better." The parent does the informed consent process on their behalf.

    01:23 The child may still be able to say yes or no to taking the medication.

    01:29 And there's another interesting thing that been talked about in medical ethics realms about use of designated support persons.

    01:37 So is there any opportunities to bolster the patient who lacks decision making capacity in making decisions.

    01:45 So they can't make decisions all by themselves, but they still might be able to reach a decision if they have the support of a loved one.

    01:52 So bringing in a family member who they trust, that can sort of guide them through the decision making process.

    01:59 It's still only an ascent or descent by that patient lacking capacity.

    02:03 But that designated support person who's really trying to integrate information they know about the patient and what the patient is saying in front of them to then reach a decision that's going to work in the best interest of the patient.

    02:15 So how do we decide on surrogate decision makers who's going to be best able to represent a patient in decision making process? So think for yourselves. How you would think about finding a decision maker for a patient? I will tell you that it depends on the jurisdiction.

    02:32 So where you practice medicine or practice nursing, different jurisdictions might have a different way of choosing surrogate decision makers.

    02:41 I'm going to give you a typical ordering, but you should really check at your own institution, where you practice, about how they decide on surrogate decision makers.

    02:53 So a typical ordering would be something called an Advanced Directive.

    02:58 The patient while they had decision making capacity, while they add the competence to make decisions, completed a form that said, "I named this person to be my proxy, to be my healthcare agent." My other term is called durable power of attorney for health care.

    03:15 I want this person to make medical decisions for me when I can't make them for myself.

    03:21 If that's never been completed, there might be the need to go to the court and have a court appointed guardian.

    03:28 So this is a person that will speak on behalf of the patient and make those medical decisions for them.

    03:35 It might be that the guardian has discretion over lots of decisions by the incapacitated patient. Their finances, where they live, not just their medical care, but for our purposes, we're thinking about a court appointed guardian for medical decisions.

    03:52 And then short of those two things, generally, it's going to be the case that you're going to rely on family or friends to help in making decisions.

    04:00 And the typical ordering, you know, for to go by priority might be a spouse or significant other.

    04:07 Next, would be an adult child, then it could be a parent, adult sibling of the patient, or any other relative or friend.

    04:18 If it's the case that the surrogates there multiple people at the same level, they all have equal decision making authority on behalf of the patients.

    04:27 So if it's you're thinking about adult children, and if there are more than one child, and all of them have to agree on the decisions, reach consensus amongst themselves, to make decisions on behalf of the patient.

    04:41 And one of the jobs of the clinical team is going to be working with those loved ones, to reach a decision that they think is going to work for the patient.

    04:54 And how do surrogates make decisions? Well, there are two standards.

    04:58 The first would be something called substituted judgment.

    05:01 So they're substituting themselves and making judgments based on what they know of the patient.

    05:07 So the patient's own values, what they know about the patient's preferences, what they know about the patient's ideas about well being, all of those are factored into making decisions about the patient.

    05:19 These medical decisions that will impact the patient in their life.

    05:24 Maybe that they've had prior conversations with the patient.

    05:27 And now they just have to apply to this particular medical circumstance to say, "Well, this is my substitute judgment of what the patient would want." Short of that, when there isn't the opportunity to do substituted judgment, the surrogate decision maker should rely on best interest.

    05:44 So this is gathering all the information that's been done in the informed consent process.

    05:49 The surrogate weighs all that information, and decides what's going to be best in the best interest of the patient.

    05:55 What would avoid harm to the patient? If they can factor in things like, will it relieve suffering? Will it preserve function? Will it help to attend to the patient's quality of life? All of those things speak to the patient's best interest.

    06:10 And that's what the surrogate rely on when they really don't know for sure how the patient would have made the decision for themselves.

    About the Lecture

    The lecture Patients Lacking Decision-making Capacity by Mark Hughes, MD, MA is from the course Informed Consent and Capacity.

    Included Quiz Questions

    1. A person who makes decisions for a patient who cannot decide on their healthcare.
    2. A judge who makes decisions for a patient who cannot decide on their healthcare.
    3. A lawyer who makes decisions for a patient who cannot decide on their healthcare.
    4. A judge who makes decisions for a depressed patient who is unable to decide on their healthcare.
    5. A lawyer who makes decisions for a depressed patient who is unable to decide on their healthcare.
    1. Healthcare proxy named in an advance directive
    2. Court-appointed guardian
    3. Friend
    4. Spouse
    5. Child
    1. Substituted judgment
    2. Best guess
    3. Second best interest
    4. Presumed judgment
    5. Kind judgment

    Author of lecture Patients Lacking Decision-making Capacity

     Mark Hughes, MD, MA

    Mark Hughes, MD, MA

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