Mental Competency

1. In a patient with a diagnosis that may increase the likelihood of cognitive and/or functional impairment (e.g., dementia, stroke, severe mental illness, head injury):
   • Assess the patient’s level of competence in the context of the decision(s) that the patient needs to make, recognizing that higher-risk decisions require higher cognitive capacity
   • Explain the purpose of the assessment and attempt to gain permission before you begin the assessment
   • Include other professionals when appropriate
2. In an otherwise well patient with subtle changes in function (e.g., family concerns, medication errors, repetitive questions, decline in personal hygiene):
   • Perform an appropriate assessment of cognitive and functional abilities
   • Refer for further assessment when necessary
3. When a patient is making high-stakes care decisions (e.g., surgery/no surgery, resuscitation status) think about the need to assess their decision-making ability.
4. When capacity assessment is required, actively assess the patient’s ability to understand, appreciate, reason, and express a choice.
5. When impaired decision-making ability is identified, attempt to establish severity, reversibility, and duration in order to plan treatment and regular reassessment.
6. When a patient refuses to participate in capacity assessment:
   • Document their refusal
   • Continue to engage in the provision of safe care that is acceptable to the patient
   • Revisit the assessment when indicated
   • Pursue the need for a substitute decision maker when necessary

General Overview

• Mental capacity implies a clinical status established by a healthcare professional
  • Capacity may change over time, and in the context of specific domains (medical, cognitive, functional)
• Mental competency refers to a legal status judged by a legal professional
  • Situation-specific (care for self, sign out AMA, stand trial, sign a POA, change a will, financial decisions)
    • May be competent to make care decisions but not financial decisions
• For consent to be considered valid:
  • Must be voluntary (without duress/coercion)
  • Patient must have the mental capacity to consent
    • Understands nature of proposed options, anticipated effect of options, and consequences of refusing
  • Patient must be properly informed
    • Diagnosis, proposed investigation/treatments, chance of success, alternatives, consequences of refusing

Assessment

• Standardized screening tests for cognitive decline (MMSE, MoCA)
• Capacity and competence
  • Clinical interviewing
    • Understand information relevant to the decision
      • Cognitive ability to remember the information long enough to make the decision
        • Ask the patient to explain the nature of the condition/treatment/alternatives
    • Appreciate the reasonably foreseeable consequences of a decision or lack of decision
      • Weigh up information relevant to the decision
        • Possible outcomes of treatment, alternatives, lack of treatment
        • Realistic expectations
    • Communicate their decision – by talking, or any other means
  • Collateral information
  • Further assessment (eg. Occupational therapy - on-road assessment, kitchen-cooking assessment)
• Advance Care directive (Living Will) prior to onset of impairment or early in progressive conditions
• Substitute decision maker
  • If not assigned, by hierarchy:
    • Guardian appointed by the court
    • Power of Attorney for personal care
    • Representative appointed by Consent and Capacity Board
    • Spouse, common-law spouse or partner
    • Child (if >16yo) or parent (custodial)
    • Parent with right of access only (non-custodial parents)
    • Brother or sister
    • Any other relative
    • Office of the Public Guardian and Trustee