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COMMENTARY |
University of Colorado at Colorado Springs.
THE inevitable tension between clinical practice and science is no more evident than in this area of decision-making capacity. Clinicians who participate in legal decisions about guardianship are faced with highly complex tasks that require an examination of assessment data in the context of ethics as well as research findings on cognition and environmental factors that shape daily functioning. The emergent field of cognitive aging has an impressive trajectory of development that has been remarkably disconnected from practice applications until very recently (e.g., Brown & Park, 2003
). The Moye and Marson article lays out a way that this substantial body of literature can contribute to one of the most significant practices in the life of an elder: the decision about the capacity to maintain fundamental legal rights.
Although science systematically examines particular functions within a narrow range of contextual variation, clinicians inevitably function within ever broadening contexts of information and action. Cognitive aging research looks at the contexts of cognitive performance by investigating which cognitive domains change, in what direction (decline or growth), by what increment, over what period of time, and in which populations as measured by which instruments. The assessment of decision-making capacity extends those questions to include a critical linkage to daily functioning by asking how cognitive performance predicts function in which domains of daily life and with what outcomes. The problem leads back to the framework developed by M. Powell Lawton, whose contributions to clinical psychology were always rooted in a contextual, person–environment fit framework (Lawton, 1982).
Clinicians always must view behavior in context because the fit of person to context generates adaptive or maladaptive behavior. Thus, the core question for clinicians working in this area of decision-making capacity extends beyond what is available in the cognitive aging research base, to examine in intricate detail the relationship between one person's cognitive capacity and that person's ability to be safe in a particular environment. Although informed by research, this clinical role requires a complex judgment based on performance scores that rely on normative comparisons, the assessment of values and attitudes, risks and benefits, and awareness of immediate complexities in the person–environment fit.
Moye and Marson describe well the complexity of that process when the task is to evaluate the potential for improving decision-making capacity in a person whose life contains normal complexities. However, many individuals who are evaluated for decision-making capacity have illnesses and take medications that are highly likely to be adversely affecting cognition (in ways that our normative databases do not calibrate). They may live in cultural contexts unfamiliar to the clinician, which limits the clinician's ability to know whether behavior reflects capacity or a cultural prescription for a particular social role. There may even be more proximal environmental conditions such as high neighborhood crime rates or a spouse's chronic anger that is sufficiently anxiety provoking to alter performance.
The clinician's perspective suggests that there are important research questions to address about the context in which the assessment and legal judgment processes are conducted. I want to focus on three research areas related to the contexts of this process that would have an immediate impact on this emerging field of practice: the context of the question of capacity, the context of the assessment, and the context of the presentation of the data.
The question about a person's capacity arises in a context that shapes every aspect of the assessment and judgment process. To date, we know almost nothing about the relationship between how the question of capacity arises and characteristics of the procedures that must unfold to address it. Recently, a deputy district attorney raised for me a series of questions about assessment in the cases of fraud and exploitation. For example, what assessment is needed when a woman raises questions about her 90-year-old mother's judgment capacity after the mother gave her son $20,000 to start a business? when a nursing home questions the capacity of a resident to make decisions about refusing medication? when a son questions his father's capacity to manage his finances after a major investment loss? How does the context in which the capacity question arises shape the assessment process, data, and outcomes? What aspects of the environment (physical spaces, social relationships, and financial contexts) have to be evaluated?
What type of relationships must be formed between clinicians and other participants to achieve "truth" about capacity? Although our legal system has primarily operated on the assumption that adversarial approaches enhance truth finding, as is typical in criminal and civil courts, family courts recognize that "truth" in families is rarely elucidated through adversarial investigations. So, what is the clinician's fundamental approach to the role of assessment in finding the truth about a person's capacity: collaborative or adversarial, and with which players?
The assessment of cognitive capacity occurs in particular contexts that seem capable of shaping the findings, but we have remarkably little data on the details of the relationships between performance and context. The cognitive aging literature is replete with evidence of the deleterious effects of distraction on cognitive performance. When evaluating a very ill resident of a nursing home, however, clinicians rarely have the luxury of ensuring an absence of distractions. How does the assessment of a resident in bed influence outcomes? How does the fact that the assessment occurs in the same room in which the resident was introduced to the facility (usually the social worker's office) impact assessment? How do the beliefs and expectations of the person being evaluated influence outcomes? There is a rich research literature on the effects of physical environments on mood and motivation that could form the basis for examination of some of these questions, for example.
An area of research that is ripe for collaboration with our colleagues in psychology and law relates to the presentation of our data on the decisions that are made within the legal system. Jennifer Moye recently presented as yet unpublished data regarding the presentation format of evidence of diminished capacity (Moye, 2006). She and her collaborators found remarkable diversity in the types, amount, and format of evidence presented in guardianship hearings in four different regions of the United States. How do these variations influence decisions? What factors influence judicial perceptions of cognitive capacity? What factors influence the guardians who informally make decisions about their wards' rights to make small choices within their daily environments? Who actually knows the specific findings about cognitive strengths and limitations that are available in the assessment report? The final legal outcome about level of capacity is all that is typically consumed by the court and health providers.
Assessment reports are full of rich information that could be used for purposes as varied as environmental design and social interventions to enhance capacity or support the caregivers of persons without capacity. How do family caregivers make decisions about how to include elders in daily decisions? Families, whether they are official guardians or informal "responsible decision makers" (the designation given to the official contact person by nursing homes, hospitals, and housing) have enormous influence in shaping the range of choices a frail elder can make. The vast majority of restricted legal freedoms are accomplished without legal decisions, within the daily world of frail elderly persons whose immediate social network provides compensatory support that often restricts autonomy. Restricting my father-in-law from driving did not involve the legal system—it was accomplished with familial social pressure alone, based on assessment data from a neuropsychologist.
Finally, I would note that the increasing urgency of researchers and clinicians entering this work is driven by both the demographic imperative and the rising visibility of legal and quasi-legal processes involved in end-of-life decision making. Obviously, incapacity is not new, nor is it new to have social contexts be so integral to the ways the decisions are made. However, gerontologists bring a distinctive expertise in viewing individuals in context that can inform this process if we accept the challenges of listening to the multiple players in these life-and-death dramas. Judges, lawyers, and clinicians from many disciplines face daily dilemmas that point to rich directions for future research on the contexts of capacity decision-making assessments. Moye and Marson are sounding the call for the need for more and different research that can help inform this process so it can become a truly empirically based field of practice.
Footnotes
Decision Editor: Thomas M. Hess, PhD
Received for publication July 26, 2006. Accepted for publication August 3, 2006.
References
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