Confirmation of Clients’ Capacity

By Tom Smith, Ph.D.

 

When talking about “confirmation of capacity” we are talking about the client’s ability to understand their situation and make their own decisions. In legal terms, this ability, or lack thereof, is called “competence”. The question is, if the particular person is capable (capacity) and to what degree to care for him/herself, engage in activities of daily living; e.g., hygiene, food preparation, laundry, etc., to drive a car, to make medical or legal decisions or take on various responsibilities. If it is legally determined that the person is not capable, the court will appoint a guardian or conservator to care for the individual’s basic needs.

With HIV, it may or may not be clear if cognitive impairment is interfering with the person’s ability to make decisions; therefore, a mental status exam may be required. It may be difficult for the provider to point out to the person that they are impaired, particularly if the HIV person is in a state of denial regarding their abilities. A person with HIV who presents with apparent cognitive impairment is a problem with legal, clinical and ethical aspects.

Firstly, the clinician must confirm and affirm the safety of the client by thoroughly assessing the client’s mental state, which includes stability of mood and rational cognitive functioning. One must be sure that the client is under the care of a physician and is following medical advice. Problems in cognitive functioning can be a result of many things; among them, other medical problems, medical side affects, mental disorders, AIDS dementia, or drug reactions. Differential diagnosis is important to establish appropriate treatment. Under these circumstances it is critical that there be cross-consultation, with written informed consent by the client, between all allied health care providers, including the primary care physician, psychiatrist, social worker or counselor. The physical diagnosis is critical. The physician may determine that certain drugs or an organic condition are contributing to impairment that precludes the client from operating dangerous machinery or driving a car, for example. The central focus is to be on the client’s safety. They may think that everything is just fine, but an objective assessment may determine otherwise.

Even after determining that there is impairment, an HIV client may refuse medical treatment or supervision. They may become agitated or angry that someone is interfering in their life or taking away their freedom to self-determination. This presents an ethical dilemma for the practitioner. One must decide, with consultation, when the right time is to intervene contrary to the client’s wishes for their safety and that of others; for example, if the client insists on driving and it is clear that they are not able. This is a common ethical problem also with people who are not HIV positive, but suffer from cognitive impairment for whatever reasons.A central issue is, “Does the client have the capacity to consent to treatment?” Cognitive impairment is not by itself sufficient to mean that a person cannot make treatment decisions. They are considered competent unless it can be shown otherwise and proven, in some circumstances, by the courts. They may still be able to have an understanding of the situation, what needs to be done and the risks and benefits of accepting or not accepting treatment and be able to make an informed choice. It may not be the choice that the practitioner may desire, but it is, nevertheless, their choice.

Every situation is specific and different. Certain questions need to be answered: Is the client obviously impaired to a layperson? Is the client taking medication properly or not; for example, taking the Demerol to relieve pain and then driving the car? Are they aware and cautious when cooking or bathing? Do they drink alcohol and how much? Do they use other recreational drugs? Are they paying their bills? Is there food in the house? Are their clothes clean? Are they clean or do they have strong body odor? Have they had traffic citations? Have they been arrested? Have they fallen? Is there any injury to their person that one can see; for example, bruises or cuts? Can they make it up the stairs? The client may be aware that they are having these problems and may choose to avoid others or worse, treatment, because they want to preserve their independence. Again, this may not be the choice family or care providers may choose, but it is a rational choice and must be respected; albeit, the situation monitored closely. If rash behavior is still being expressed, the therapist should sit down with the person and honestly discuss their difficulties in daily living, pointing out the behavior that is dangerous to the person and others. Often, this is driving the car or cooking. It can be suggested that they now take the bus or use cabs or enroll in a program like San Francisco’s “Project Open Hand” for food and social contact. They should be warned of the danger and all of this documented scrupulously. If they still insist on driving, for instance, then a call to the Department of Motor vehicles may be appropriate or if they are arriving impaired to the provider’s office, the police may need to be called or a family member or friend to pick them up.It is important that the HIV/AIDS client be empowered to run their life as they see fit as long as they can. Family members or caregivers may object because it is causing inconvenience or embarrassment or that they are frightened by witnessing the decline. The matter may be resolved by connecting the client to a trusted friend or neighbor who will agree to check in with the client daily or who will ensure that the bills are paid and that there is food in the house. There may be a “meals on wheels” delivery service that comes every day not only with food, but social contact and an extra set of eyes and ears.

If it becomes clear to the clinician that the client obviously is not able to care for their self, with the client’s written informed consent, they can call the client’s family or other support network together to assess the situation and reach some resolution regarding next steps. Only as a last resort is the patient’s freedom taken away through the legal appointment of a conservator or guardian. If there is no family or support system in place and the person is “gravely disabled” as defined under the law, then, Adult Protective Services are to be called.

Best Practices regarding confirmation of capacity.

First, foremost and before any other action, a thorough medical evaluation is required if an HIV client is presenting cognitive impairment or changes in mood or normal behavior. If must needs be, make the referral and see that it is carried out. Most determinations of capacity are reached by a medical doctor and should be handled by the client’s primary care physician.

Once medical management is in place, other support resources should be sought with the informed written consent of the client and put in play, including family members, close friends, church members, other social service agencies and any other existing support systems the client may already have in place.

Be aware of ALL the HIV/AIDS resources in the community and use them. This includes AIDS Drug Assistance Programs, free dental and medical services available through teaching hospitals or dental schools, pro bono legal services, rehabilitation services, employment assistance, food delivery, home health aides, housekeeping assistance, volunteer services for those who are homebound to offer emotional or spiritual support and any other services.

Use customary social service resources that are available in most communities.

Do what is necessary for the HIV/AIDS client remain empowered to run their life as they wish as long as they are able.

References

Beckett, A., & Kassel, P. (1994). Neuropsychiatric dysfunction: Impact on psychotherapy with HIV-infected gay men. In S. A. Cadwell & R. A. Burnham Jr & et al. (Eds.), Therapists on the front line: Psychotherapy with gay men in the age of AIDS (pp. 147-162). Washington, DC: American Psychiatric Press, Inc.

Cadwell, S. A., Burnham Jr, R. A., & Forstein, M. (Eds.). (1994). Therapists on the front line: Psychotherapy with gay men in the age of AIDS. Washington, DC: American Psychiatric Press, Inc.

Folkman, S., & Chesney, M. (1995). Coping with HIV infection. In M. Stein & A. Baum (Eds.), Chronic diseases (pp. 115-133). Hillsdale, NJ: Lawrence Erlbaum Associates, Inc.

Lane, Steven R., and Levine, Richard N., Caring for Homeless People With HIV Disease in Focus: A Guide to AIDS Research and Counseling (04/90) Vol. 5, No. 5, P. 1.

Ostrow, D. G. (1996). Mental health issues across the HIV-1 spectrum for gay and bisexual men. In R. P. Cabaj & T. S. Stein (Eds.), Textbook of homosexuality and mental health (pp. 859-879). Washington, DC: American Psychiatric Press, Inc.

Wood, G., Marks, R., and Dilley, J. (1992) AIDS Law for Mental Health Professionals. Berkeley, Celestial Arts 1501 Words