| HOME | ARCHIVE | SEARCH | TABLE OF CONTENTS |
|---|
| ||||||||||||||||||||||
COMMENTARY |
Schools of Law and Medicine, Southern Illinois University, Carbondale, Illinois.
Address correspondence to Marshall B. Kapp, JD, MPH, Garwin Distinguished Professor of Law and Medicine, Southern Illinois University, 1150 Douglas Drive, Carbondale, IL 62901-6804.
THE legal and ethical principle of autonomy is central to the enterprise of making decisions about major life activities, including medical care and the management of one's financial affairs, in modern American culture. To be truly autonomous, a choice must be made voluntarily, based on sufficient relevant information, and by a capable decision maker. Thus, the ability to accurately assess their decision-making capacity is essential to protecting the rights of capable older people regarding personal and financial integrity while safeguarding those individuals without sufficient self-protective capacity against undue risks of harm stemming from their vulnerabilities. Our ability to separate older persons with severe impediments to autonomous decision making from those who presently are able to make their own choices has always been important in medical and financial affairs, but it grows increasingly so as the movement toward consumer-driven or consumer-directed health care and home- and community-based long-term care pick up momentum.
Hence, the productive efforts by Jennifer Moye and Daniel Marson and their respective colleagues to develop better methods for assessing the medical and financial decision-making capacity of older adults should be applauded. In their review article in this issue (Moye & Marson, 2006
), they articulately summarize the significant progress made recently regarding the validity and reliability of emerging decision-making capacity assessment techniques. Certainly, replacing the virtually unguided subjectivity that historically has characterized the process of capacity assessment with, as much as possible, more consistent and objective measures represents progress. Such progress notwithstanding, this legal skeptic will outline four cautions and queries, mainly in the form of suggestions for further research by Moye, Marson, and other investigators in this sphere.
First, it would be useful for researchers to compile data on just how prevalent the problem is in which older adults lack sufficient capacity to make their own medical or financial decisions. Moye and Marson observe that the capacities being assessed in the studies they review, "although technically legal capacities, are rarely subject to judicial review." In many instances, it probably is desirable from a policy perspective that capacity assessments both take place and are acted on outside of the formal legal system (Kapp, 2002). However, sometimes legal involvement, mainly though the guardianship process, is necessary to adequately protect the interests of the involved parties; therefore, it would be useful to have a better grasp of the prevalence of decisional incapacity so as to gauge how much of a strain really would be placed on the judicial structure were we to encourage medical and financial professionals, as well as older individuals and their families, to initiate more judicial oversight over the determination of decisional incapacity and the aftermath of that determination. Put differently, even if we wanted the courts to be more involved in reviewing the presence or absence of legally pertinent decision-making capacities in older people, would the number of potential legal cases make a more official approach unrealistic? Conversely, is the actual number of significantly incapacitated elders who have failed to execute advance directives so small that greater utilization of the courts is highly feasible?
Second, Moye and Marson correctly note that the term capacity generally is employed "to refer to a dichotomous (yes or no) judgment" about an individual's ability to make a particular kind of choice. The dichotomous approach, embodied in the legal doctrine of informed consent, makes good sense if we assume that, for every decision, there is one and only one decision maker—namely, either the affected, capable individual or a surrogate who has officially or unofficially taken over decision-making authority from the incapable individual about whom decisions need to be made. This is a dubious proposition, though. We should subject to empirical investigation the question of whether most medical and financial decisions involving older persons are made in this fashion, or whether instead a large percentage of these decisions actually are made in an informal, shared way that combines the input of family and friends with that of the individual for whom the decision is being made. Current legal structures do not deal well (particularly in the medical arena) with the model of decision making as a shared enterprise rather than one dependent on a single, lone decision maker; if the shared decision-making model often reflects reality, however, then capacity assessment researchers will need to develop tools to determine when an older person is capable, but only with adequate assistance, or capable, but only to share decision-making authority with others.
Third, research should be conducted on how often capacity assessments conducted by different professional team members on the same patient or client differ and how those differing conclusions about the individual's capacity are resolved. To what degree is consensus among multiple assessors the norm? How is consensus among team members achieved when the initial evaluations conflict? Does the involvement of multiple team members in the assessment process eliminate or make more likely the possibility of invoking the judicial process to definitively determine an individual's decision-making capacity?
Finally, little if any research has been conducted thus far regarding how the courts, as well as medical and financial professionals, put to use the results of formal capacity assessments when they are available. Do judges, health care professionals, and business people simply translate a specific numerical score on a standardized instrument into an automatic finding of competence or incompetence, or is their treatment of assessment scores more sophisticated than that? Alternatively, do the courts and medical and financial professionals ignore the results of standardized assessment tools in favor of continuing their own subjective determinations? We must know more about the ways in which clinical assessments are used by those who interact with older persons regarding major life decisions if we are to devise educational and legal strategies for protecting the vulnerable while respecting the autonomous.
The careful review by Moye and Marson of progress in the field of decision-making capacity assessment impresses the reader with how far the pertinent science has come in the past few years. This progress has great potential legal significance, as illustrated by the queries briefly posed here. Future researchers will have much to say about how society deals with the legal implications of progress in capacity assessment.
Footnotes
Decision Editor: Thomas M. Hess, PhD
Received for publication July 26, 2006. Accepted for publication August 3, 2006.
References
| ||||||||||||||||||||||
| HOME | ARCHIVE | SEARCH | TABLE OF CONTENTS |
|---|
