THE INTERFACE BETWEEN SOCIAL WORK AND LAW Hospital social work and decision making capacity

Who Decides That They Can’t? Leading the challenge of assessing decision- making capacity in the hospital setting. Melissa D’Or Director Social Work Fraser Coast Health Service Sunshine Coast-Wide Bay Health Service District

Context Ageing population Life expectancy continues to increase. Prevalence of cognitive impairment steadily increases with age. Increasing rates of elder abuse, particularly financial abuse. Very few Australians plan for incapacity.

Legal Capacity Key Concepts: Legal construct Presumption of capacity Specific capacity has replaced notion of global capacity. Domain specific, decision specific & time specific. Can this person make this decision? Valid trigger must be present.

Decision Making Capacity A person with decision making capacity is able to: Understand the nature and effect of the decision; Freely and voluntarily make the decision; Communicate the decision in some way. Impaired decision making is the inability to go through the process of making a decision and putting it into effect.

Darzins, Molloy & Strang 2000 “In performing assessments of decision-making capacity, practitioners should really be looking for evidence of incapacity. If they do not find evidence of incapacity the presumption of capacity is allowed to stand”.

Incapacity is not: Ignorance Eccentricity Different ethical views Cultural diversity Poor communication Poor judgment Poor decision making

Elements of Capacity Understanding: basic understanding of the facts involved in the decision. Appreciation: understanding of the nature and significance of the decision & nature & meaning of potential alternatives. Reasoning: ability to derive conclusions from the information presented. Choice: ability to express a choice. Values: weighing risks & benefits of various options and choosing one over another, requires values.

Assessment of Capacity No widely accepted standardised assessment for measuring capacity. Substantial variability between assessments. Tools for assessing intelligence have been used for assessing capacity. Is intelligence the same as capacity? MMSE is only a screening tool and should be used as an indicator that further assessment is required.

Significance in a Primary Health Care Setting Patients need to make decisions about their healthcare, including discharge plans. Consent is required for medical procedures/treatment. Health professionals have a “duty of care” to their patients. Vulnerability of those who lack capacity.

1.Medical investigations: CT scan, MRI, blood and urine testing. 2.Cognitive screening: MOCA, MMSE. 3.Assessment of independent living skills. 4.Psychosocial assessment. 5.Purpose-built capacity test eg. Six step capacity assessment process. 6.Consultation with Geriatrician. 7.Multi-disciplinary team consultation and decision- making. Assessing Decision-Making Capacity Framework

The Six Step Capacity Assessment Process Darzins, Molloy & Strang, 2000, Memory Press 1.Ensure a valid trigger is present. 2.Engage those being assessed. 3.Information gathering. 4.Education. 5.Capacity Assessment. 6.Act on results.

The Challenges for Social Work Who is responsible for assessing capacity? Lack of specific training for professionals. Lack of specific skills to assess capacity. Lack of understanding by patients, relatives and other health professionals. Pressure for beds results in the need for timely discharge. Assessment of a patient’s capacity takes time. Competing demands.

Challenges for Social Work contd Impact of patient not having capacity: what action is required? Increasing numbers of socially isolated persons, elder abuse, & patients with complex social circumstances. Role of families & significant others in a patient’s decision making process. Those being assessed are often unwell and in an unfamiliar environment.

The Future: Social Work Leading the Way. Social Work can play a pivotal role in the assessment of capacity: Our profession is underpinned by a strong ethical base with an emphasis on social justice. Expertise in Psychosocial assessment. Wholistic approach: the profession straddles the medical, psychosocial and practical spectrums. Social Workers possess the knowledge.

The Future contd What more is required? Access to ongoing and relevant professional development. Greater resourcing: increased staffing levels. Prioritising of this work: balancing workplace demands to ensure this is a priority for SW. Multidisciplinary decision making: setting up processes/pathways to facilitate this. Identification of “experts” within the profession.