Mental Competence and Legal Issues Barry S Fogel
Mental Competence and Legal Issues Barry S. Fogel, MD Brigham Behavioral Neurology Group Harvard Medical School
Themes of This Presentation n n n Executive Function and Metacognition Why Assessors May Disagree Neuropsychological Testing versus Performance in a Natural Setting Assessing Driving Ability Assessing Legal Competence Communicating the Findings of an Assessment
Executive Function and Metacognition n Executive function is the most important cognitive factor determining performance of social and instrumental activities. This cuts across diagnoses: True for Alzheimer’s disease, non-Alzheimer dementia, traumatic brain injury, schizophrenia. Patients with equal MMSE scores can show substantial differences in functional status.
The Role of Executive Function n n Executive impairment, measured quantitatively by instruments such as the EXIT or neuropsychological tests (verbal and figural fluency, trail-making B, clock drawing, etc. ), explains much of the variance in multivariate models of instrumental function. However, education and culture influence scores for particular functions such as driving or managing finances, and current circumstances influence the quality of decision making.
The Importance of Metacognition n n People aware of their cognitive or sensory impairments will ask others (family and friends) for advice and assistance; people unaware of their limitations won’t ask for help, often refuse to accept help when it is offered, and may persist in doing things that have become dangerous. People who know their driving abilities are impaired will curtail their driving. Normal old-old people reduce their driving miles per year. n Very low annual mileage – less than 3000 per year – is associated with a high risk of accidents
Metacognition and Awareness of Deficits n Awareness of deficits (or, inversely, denial of deficits) is related to the same brain systems as metacognition. n n n Sensory impairments Somatic diseases and disabilities Behavioral abnormalities Impaired judgment Patients with bv. FTD typically minimize or completely deny their changes in behavior and judgment.
Metacognition and Safety n n n A recent driving simulator study showed nondemented old people with could improve their driving performance with training. The first step was acknowledging their impairments. With adequate self-awareness, cognitivelyimpaired drivers can avoid situations such as poor lighting, heavy traffic, and fatigue that increase the risk of accidents. Of all types of dementia, FTD has the strongest association with dangerous driving, and behavioral changes can make driving dangerous at a time when an MMSE might be normal, or only slightly below normal.
FTD and Driving: Results of Recent Studies n n Studies using a driving simulator (de. Simone et al 2007) and caregiver questionnaires (Ernst et al. 2010). Drivers with FTD (both bv. FTD and SD) n n n Drove more aggressively Drove too fast Ran red lights and stop signs Had more crashes Lacked insight into their poor driving Typical AD driving behaviors: n n n Driving unsteadily Getting lost Some awareness of driving problems (though severity may be minimized)
Cognition and Metacognition Are Partially Independent n n n AD - Patients with relatively more right hemisphere and frontal involvement are more likely to be unaware of their cognitive deficits (or deny their significance) FTD – Patients with the behavioral variant are most likely to have impaired metacognition. Va. D – Metacognition is most impaired with multifocal cortical disease that involves frontal lobes and/or right parietal lobe.
Drugs and Metacognition n n Some drugs - e. g. , benzodiazepines -may cause cognitive impairment accompanied by denial of impairment. Other drugs - e. g. , anticholinergics -cause impairment of which the patient usually acknowledges (but doesn’t necessarily volunteer, or attribute correctly).
Dimensions of Metacognition n Different dimensions of metacognition have different anatomy n n n “Feeling of Knowing” – inferior frontal lobes Confidence in one’s knowledge – right parietal The biggest practical problem, high confidence in wrong answers, may be more common in cortical dementias like AD than in subcortical dementias. n Metacognition, or awareness of deficits, is greatest in the behavioral variant of FTD, where patients acknowledge no problem at all despite major changes in functional performance.
Initial Clinical Assessment of Metacognition n n Before and after concluding clinical or laboratory testing of cognition, hearing, or vision, ask the patient whether they are having trouble in that area, or what they think their tests will show. Explain test results, then ask again. If the patient initially is reluctant to accept the findings, give them a written report and ask again on the next visit. Ask the family if the patient’s behavior reflects awareness of limitations.
Increasing Levels of Metacognitive Deficit n n n Acknowledges impairment but doesn’t act consistently with awareness of deficit Denies or underestimates impairment before testing, but not after Denies or underestimates impairment after testing but not after explanation of results Acknowledges impairment only after repeated explanations Denies impairment despite all efforts
Formal Testing of Metacognition n Neuropsychological testing including metacognitive measures. n n Formal: Memory tests that ask subjects how sure they are of their answer. Informal: Systematic observations and questions by the neuropsychologist Occupational therapy assessment. Comparison of self-rated, clinician-rated, and family-rated scales of cognition and everyday functioning.
Why Assessors Disagree n n Different performance criteria or thresholds for determining competence or functional independence. Differences in testing methods. Context-dependency of performance, especially when executive function is impaired. Fluctuations in performance, especially those related to medical illness or mood.
Neuropsychological Testing v. Observed Performance n n n Comprehensive Quantitative Good norms Standardized context May disclose unexpected severity of impairment n n n Face validity Observed degree of benefit from contextual cues is relevant to clinical conclusions Results can be more persuasive to family or other interested parties
Driving: The Doctor’s Dilemma n n n Dementia impairs driving performance Dementia can impair the ability to distinguish safe from unsafe driving situations, and can diminish the ability to compensate for physical and sensory impairments – or even be aware of them. n It can lead to medication noncompliance or medication errors that have the consequence of exacerbating driving problems. But: The loss of a driver’s license can dramatically decrease independence, activity level, and self-esteem, leading to acceleration of decline, increased caregiver burden, earlier institutionalization, and even mortality.
Neuropsychiatric Expressions of Dementia Also Can Impair Driving n n Depression – Psychomotor slowing and decreased reaction time Psychosis – Response to hallucinations or distraction by internal stimuli while driving. Aggressiveness and impulsivity – Aggressive driving behavior Apathy – Failure to anticipate hazards n Driving consequences of apathy are mitigated by decreased desire to drive.
Driving Cessation in Dementia n n n Several recent studies have tracked driving cessation in dementia or memory clinic populations. In typical clinic populations with MMSE scores between 18 and 24, 20 -25% continue to drive. Almost half who have stopped driving did it on their own. The remainder were told to stop by physicians or family members. Of those who continued to drive between 25 -30% had at least one accident. A minority of patients with very mild or mild dementia will continue to drive safely for three or more years following their diagnosis. n This argues for an individualized approach to driving assessment in patients with CDR 0. 5 or 1. 0.
Who Quits Driving n n Of those who continue to drive 60% will quit within two years. Determinants of who quits driving are both mental and environmental n n Favoring quitting: Older age, worse cognition, apathy, hallucinations, good social supports and transportation alternatives Favoring continuing to drive: Living alone, nonurban location, agitation/aggressiveness
Source: Herrmann et al, CMAJ, 2006: 175(6): 581 -5
Specific Driving Errors Associated with Dementia n n n Slower and more variable speed Increased steering variability More errors at intersections – greater chance of rear-end collisions Less awareness of other drivers and pedestrians Worse lane control Unexpected braking
Driving Impairment is Rapidly Progressive n n n Investigators at Washington U. did road tests every six months on drivers with CDR 0, 0. 5, or 1. 0. At baseline 3% of non-demented drivers were unsafe, 14% of those with CDR 0. 5, and 41% of those with CDR 1. 0. Over half of the CDR 1. 0 drivers were unsafe 6 months later; over half of the CDR 0. 5 drivers were unsafe 1 year later.
Differences of Opinion n n Everyone agrees dementia impairs driving ability and increases accident rates. People differ on the balance between individual liberty and public safety. n n Some countries will revoke a driver’s license for one episode of driving while intoxicated. Others permit known alcoholics to continue driving.
Where Experts Agree n A 1994 International Consensus Conference and a 1996 California Department of Motor Vehicles expert panel agreed that: n n People with moderate to severe dementia (by clinical criteria) should not drive. (California and Utah require all dementia cases to be reported. People with mild dementia should have direct assessment of driving competence.
Testing Driving Performance n Driving simulation is the best one-shot test of driving ability. n n A standard road test can be insensitive to the greatest driving problem of mild dementia – failure to respond appropriately and quickly to an unexpected situation In sleep apnea simulation predicts crashes better than neuropsychological tests or polysomnography Nonetheless, failure on an official road test can get an incompetent driver off the road. Patients who have accidents during simulated driving are more likely to have accidents during actual driving. n However, data on this point are limited because crashes are relatively rare, even in patients with dementia, because most will significantly reduce their miles driven.
Recent Review of Dementia and Driving Studies (JAGS 2007) n n n Man-Son-Hing et al. reviewed all controlled studies of driving and dementia published from 1996 through 2006. All showed dementia patients drive worse than controls, but only one directly showed higher crash rates. No studies yet to answer critical questions n n Whether remedial training helps Whether technology helps Whether cognitive enhancers help Whether restricted drivers’ licenses hlp
Driving Simulation n n The University of Iowa 2005 international driving simulation conference proceedings – available online – are an outstanding update on the state of the art. Inexpensive, well-validated simulators are available, for example, the STISIM system, which is made by a company that also makes flight simulators.
Cognitive Impairments are Associated with Road Accidents n n n General cognitive decline – if moderate or worse – makes driving unsafe. Visual processing and executive deficits can impair driving even when general impairments are mild (e. g. , MMSE>25) Impaired motion detection – due to dysfunction of the medial temporal cortex – may precede gross memory deficits
Some Neuropsychological Tests Predicting Road Accidents n n n Verbal memory (Recalls 2 or fewer of 4 words) Trails B (> 180 seconds) Useful Field of View (> 250 msec) Multiple-choice figure completion or complex figure copy Time to navigate simple mazes (with paper and pencil, or touch screen)
Examples of Maze Tasks Associated with Road Test Performance (Ott et al. 2008) Time to complete middle maze had a. 57 correlation with the total road test score.
Face-Valid Reasons to Advise Driving Cessation n n Recent at-fault accidents. If a patient has had one they are very likely to have another if they continue to drive. Disorientation Inability to comprehend road signs Falls getting into or out of a car
Non-Cognitive Reasons to Stop Driving n Common physical and sensory impairments of older people may be reasons to stop driving, especially when they occur in combination. n n n Hearing (impaired in half of adults over 85) Vision (especially peripheral vision) Limb strength and mobility (>10 seconds to walk 10 feet, turn, and come back is associated with double the rate of auto accidents) Diminished neck mobility Driving cessation because of these impairments may be more acceptable to patients than quitting because of cognitive problems.
Visual and Cognitive Function Are Interconnected n n n Useful field of view is the area in which information can be acquired in a brief glance. It is tested by computer. It reflects attention and visual processing capacities as well as static visual fields and acuity. In one recent study the rate of crashes doubled when the useful field of view declined by 40%.
Options for Testing in the Physician’s Office n n n n MMSE or equivalent cognitive screen Clock Drawing (CLOX scoring system standardizes interpretation) Executive Interview Test (EXIT) 5 -item memory test Visual acuity and visual fields Letter cancellation Traffic sign naming
Still a Role for Clinical Judgment n n Driving simulators will become more common as technology gets cheaper. Authorities will press for standardization. But, driving abilities are context-dependent, and With adequate insight and metacognition, patients can restrict their driving to relatively safe situations (e. g. good light, local roads, good weather, light traffic, no distractions)
Cell Phones Belong in the Glove Box, Not the Driver’s Hand n n n The use of cellular phones while driving – even with a headset – is associated with a marked increase in accident rates. The adverse effect of cell phone use on driving will be greater in a person with dementia, who is less able to deal with distractions and conflicting stimuli. A cell phone in the glove box is a must for security, but in the hands of the driver it may be lethal.
Regulation of Older Drivers n Mandatory testing of drivers 70 or older in 27 States n n n Mandatory testing is associated with lower rates of crash-related fatality Written test of rules of the road in 8 States Mandatory reporting of “diminished physical or mental capacity in 9 States n n More frequent renewal required Vision tests In-person renewals Physicians may be legally liable for crashes if they fail to report Therefore: Know the rules in your state!
Guns! n n Older people are more likely to own guns than younger ones. 80% of homicides committed by people over 65 are done with guns. More than half of suicides committed by people over 65 are done with guns. Agitation, aggressiveness and depression are common in patients with dementia.
Guns! n 21 State VA study found that 40% of veterans with mild to moderate dementia lived in homes where there was a firearm. n n n 21% of those with firearms kept them loaded 61% stored their firearms in an unlocked location Study in a university memory clinic n n 60% of demented patients had a firearm in their home 45% of the firearms were kept loaded
Legal Competence n Competence for what? n n n n Deciding on medical procedures Making a will Advance medical directives Making financial decisions Involvement in litigation De facto standard is higher for “unreasonable” decisions. Interviews with lay people show that they understand that competence is task-specific and that a person with dementia may be competent to make a healthcare decision but not a financial one, for example.
Multiple Standards with Different Executive Requirements n n n Ability to understand the question and express a preference Ability to reason about the question Ability to express rational reasons Ability to appreciate context and personal significance Ability to conform behavior to expressed intentions
Why Assessors Disagree n n In practice, assessors of competence often disagree. Assessors disagree least often about patients’ capacity to understand the issue at hand. They disagree most often about patients’ appreciation of context and quality of reasoning. Overall judgments disagree for any of these: n n n Disagreement about which dimensions of competence are important. Disagreement about the measurement of individual dimensions of competence. Disagreement about thresholds or cutoffs for impairment.
Comparison of Formal Tests of Competence n n Guererra et al. (2007) compared three standardized tests of competency to consent to medical treatment in patients with mild to moderate dementia (N=79, VA setting) Generally poor agreement among test results n n Good agreement for understanding Fair agreement for overall competence (Kappa = 0. 62) Poor agreement for choice No better than chance for reasoning and appreciation of context.
Testamentary Capacity: Ingredients n n n Know what a will is Know what one’s assets are Know the people who have a reasonable claim to be beneficiaries Understand the impact of a particular distribution of the assets No delusions that would affect the decisions made Ability to express wishes clearly and consistently
Signs Suggesting Testamentary Incapacity n n n Radical change from previous will(s) Change made within a year of death Disinheriting of “natural” heirs Decisions made in context of probable delusions, misperceptions, misunderstandings, etc. Choices that disregard one’s personal history and reflect only one’s present circumstances Special situations n n No biological children Suspicion of undue influence
The “Modern” Option: Standardized Tests n n Hopkins Competency Assessment Test Standardized clinical vignettes Verbal fluency -- Key factor in ability to advance rational reasons for a decision Validity questions -- Reality is different and richer in cues and motivations than standardized vignettes
Competency to Vote n Relevancy of competency to vote in older voters with mild to moderate dementia has become more politically relevant recently n n n Studied with formal tests by Appelbaum and colleagues Understanding of voting and ability to express a choice are preserved in the majority of patients Political reasoning and appreciation of personal effects of election results are lost as dementia progresses A novel form of “identity politics” Ethical perspective
The Bugbear: Disproportionate Executive Impairment n n Disproportionate executive impairment can be found in FTD, Lewy body dementia, dementia of Parkinson’s disease, dementia associated with late life psychosis, chronic delirium -- and many other conditions. Patients with these disorders can give rational reasons but make irrational decisions because of unawareness of inconsistency, and lack of appreciation of context. The problem is especially severe when insight is lost. Families, lawyers, and courts may need introduction to the concept of selective cognitive impairment, and executive dysfunction in particular.
The Problem of Fluctuation n Fluctuating deficits are the rule in dementia n n n Intercurrent illness Drugs Stressful situations Depression They can produce intermittent incompetence including state-dependent treatment refusal Consider “Ulysses contracts” for cognitively unstable patients scheduled for high-risk surgery.
Preventing “Legal Emergencies” n n n Gray zones of competency can be anticipated based on the patient’s diagnosis. Problems will always be worse in a crisis situation. Therefore, durable powers of attorney, living wills, etc. should be done as early as possible in the course of the illness, when the patient still has insight.
Communicating the Findings of Assessment n n n Identify the interested parties and the key issues -- disability, competence, financial risks, needs for support and assistance, driving safety. Get permission to share information Estimate the knowledge of the audience and set the stage if necessary -- with an explanation of executive function, need for supervision, course of illness, etc.
Aids to Communication n n Prepare a written summary of findings and implications. Recommend readings, videos, etc. Deal early with issues of trust. Refer patients and families to community resources. Advise families with means to engage a lawyer knowledgeable about elder care.
Additional Advice n n n Incorporate screening for driving and firearm access into 100% of your evaluations (if you don’t already). Identify providers of driving evaluation, or develop the capacity within your practice setting Build a relationship with a specific lawyer who understands the relevant legal issues, has lots of relevant experience, and is educated by you or your specialist colleagues in the finer points of dementia, metacognition, executive function, etc.
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