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Esther asks, could you say more?

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Or maybe again the distinction
you want to make between

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confidence and capacity?

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I've been taught, Esther,
that confidence is a legal

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determination

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of broad in capacity, whereas
capacity

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is a clinical determination.

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Yes, and unfortunately people
teach this.

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I have given talks in large
forums filled with people,

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and some people come up to the
mic

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and tell me that I'm wrong.

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And that's why in different
talks,

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I actually have a slide

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documenting why I say the
following. Yes.

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Capacity compensates. Decisional
capacity.

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Mental capacity.

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All those term terms

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refer to authority a person
ought to have

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if they have sufficient amount
of functional abilities.

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Okay, so that's what it means.

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All those terms mean the same
thing.

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The distinction between legal
and clinical

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before they're adjudicated or
they

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they are deemed to have capacity
or not

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based on legal sanction provided
in laws

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that clinicians are allowed to
make

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for certain decisions.

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That distinction should be

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just described as whether or not
it's been determined by court.

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So is it adjudicated
or is it a clinical determining

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ation?

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But to say that decision
making capacity is a clinical

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and non-legal term is flatly
contradictory

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to all the laws

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in this land and other places
that use the term capacity,

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mental capacity, decision
making capacity in the laws

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themselves.

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Great.

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So anyway Imma go ahead
and then I'll come over to set.

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Yeah I just had a question.

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You had a slide about the
abilities

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that are relevant to capacity.

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And one of them was
communicating

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a stable preference or decision
or choice.

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Yes. Can you say a little bit
more

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about what it means to
communicate

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a stable preference, and
specifically

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about the stability, because I'm
imagining

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a reasonable person who, you
know,

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might go back and forth
sometimes.

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Yeah. I'll give you an example.

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So a person says, you come in
and you say,

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so is it okay
if we do this procedure tomorrow

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morning?

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You said yes.

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Next morning,
you show up to take him to the

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O.R.

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and he says, oh, no, no, I never
agreed.

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I don't want that. So you can't
take him.

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So the attending shows up later
that day and talks to him again.

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He says, oh, yeah, doc,
I really want that procedure.

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The next morning
you go try to do it again.

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And he says, no.

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This is an example
that needs a little bit more

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context

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for you to understand because of
this

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background that, his illness.

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But that's it.

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So the definition really is
stable enough

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so that you can carry out

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the procedure that he expressed,
present preferences for.

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If you can't even do that,
you can't really,

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say that you've met the
criterion.

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Okay.

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So the stability has to do
with the specific procedure.

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Like yeah, yeah.

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And it does vary depending on
how.

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So for example,
there was a recent case in

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Germany

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where a doctor was convicted
because,

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he provided assisted suicide to
a patient

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and the person and they
the court wanted evidence that

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this person

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had a very stable preference
for this for an extended period.

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And they disagreed with doctors
attestation.

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That was the case.

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But so it really varies.

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Sham. Okay.

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So I think my question is
related

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to a number of things in your
talk.

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So at some point you

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mentioned that possession of
risk

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factors does not equate in
capacity.

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Can you hear me? Okay.

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And then, there are these four
dimensions,

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psychometric dimensions
of what it means to have

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capacity.

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Abilities, ability. Right.

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Or a sufficient degree to have
capacity.

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Right? Right.

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And I think my question
probably has more relevance for,

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a clinical
setting rather than a research

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setting.

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But I wondered,

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for someone, for instance,

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that has just really wacky
background

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beliefs
about a certain standard

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procedure, right?

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This prevents that person either
from

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understanding what the actual
treatment

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will entail or from reasoning
well,

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with what the implications are.

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How do we navigate in.

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Those types of things?

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So I actually it's a question
of something like,

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how do you know
this isn't the person who is

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Jehovah's

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Witness with well-established
understanding that,

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you know, people can have these
diverse

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views and then have a good sign
versus

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somebody who's under a religious
delusion,

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right.

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So yeah, so that falls under the
criterion

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appreciation.

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Now, I didn't go through an
elaboration

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of all the abilities

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because that's another topic.

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But exactly.

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So that's
something that you'd have to

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distinguish.

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And there are,

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definitions and procedures and,

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and judgments that you have to
make

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that distinguish between the
two. Yes.

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Right.

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Mirror.

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I have a question about,

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consent for like, clinical
procedures

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and things, in emergency
situations.

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So, like, say you're in
someone's

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in an emergency situation,

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like they're bleeding out or
whatever.

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And like, the EMT has come
take them to the emergency room,

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and once they get there, they're
like,

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no, like, I don't.

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Want.

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You to do anything to me that
would, like,

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prevent me from bleeding out.

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But if you don't do that,
then they're going to die.

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Like, in that situation,
would you be able to

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override their, like, clear

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lack of consent?

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Yeah, that's a great question.

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So this would take a lot longer
to answer it fully

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because there are a variety of
situations

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like this.

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And one, sometimes

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the lack of consent seems
obvious

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but may not be there could be
underlying.

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For example, I have a
I actually had an experience

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where the person seemed like
they were making a clear

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preference.

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And then three days later when I
talked to

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her, she said, are you kidding?

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I was on another planet.

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You know,

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she thought she was in some
other setting

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and she was completely confused.

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But at the time she was able to.

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Other
times they may have a particular

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view

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in which that makes sense
and you may not be able to

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override.

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So it really effects sensitive.

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Okay. Gotcha.

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And and it would be different

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in a clinical setting
versus a research setting.

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Right.

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Although as Holly knows very
well

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that there are research

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that's done in emergency
settings

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and this issue,

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that there's a complicated set
of issues

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that come up.

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So because an emergency means
a broad set of things, like it's

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a person on the field bleeding
out,

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that's like super urgent
emergency,

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but then there is a person who
comes

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in, is having a heart attack.

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You know, it's a it's a cute,

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but it's not like a,
you know, two minutes.

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It's. Yeah.

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You know,
unless they get an arrhythmia,

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it's

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more of a evolving thing
in which you can still get

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consent.

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The question is, what kind of
consent

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and how do you assess?

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Daniel.

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Hi. So my question concerns,

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like the hierarchies
for surrogate decision makers.

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And the answer to this might
just be that,

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like, it varies state to state,

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but I'm wondering
if there's any sort of pattern

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or like,

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if we have any, like, reason to
skip over

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00:08:03,720 --> 00:08:06,086
someone, like, on the hierarchy.

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00:08:06,086 --> 00:08:08,108
That would be a perfectly
capable

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decision maker.

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00:08:10,023 --> 00:08:11,958
You know, like, not extremely
old

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00:08:11,958 --> 00:08:16,463
and, like, knows the patient's,
wishes,

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00:08:16,463 --> 00:08:19,666
but we might have other reasons
to skip over them.

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Like, they might not have the
patient's

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00:08:21,227 --> 00:08:21,868
best interests.

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00:08:21,868 --> 00:08:23,915
Like it's the sort of thing that
might be,

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00:08:23,915 --> 00:08:25,572
like, a reason to skip over
them.

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00:08:25,572 --> 00:08:26,639
Like, I don't know, I'm
thinking, like,

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00:08:26,639 --> 00:08:29,483
if a spouse like that,
maybe the marriage is really on

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00:08:29,483 --> 00:08:30,009
the rocks

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00:08:30,009 --> 00:08:31,557
or that they're headed towards a
messy

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00:08:31,557 --> 00:08:33,146
divorce, we might like skip over
them,

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00:08:33,880 --> 00:08:37,083
and then pick like a adult child
who similarly knows

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00:08:37,083 --> 00:08:40,186
the wishes of the patient. Yes.

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00:08:40,587 --> 00:08:42,922
So that's a good question.

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00:08:42,922 --> 00:08:46,158
And it varies on the context
and what kind of concerns you

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00:08:46,158 --> 00:08:46,493
have.

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00:08:49,529 --> 00:08:49,863
I would

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say generally your overall point
that

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00:08:53,633 --> 00:08:57,728
how do you apply that
hierarchy is what your question

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00:08:57,728 --> 00:08:58,037
is.

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00:08:58,671 --> 00:09:02,428
And yeah,
and you don't just blindly

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00:09:02,428 --> 00:09:03,576
follow it.

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00:09:04,210 --> 00:09:07,586
If you have reason to suspect
the spouse

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00:09:07,586 --> 00:09:08,515
who is 95.

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00:09:08,848 --> 00:09:12,619
And she herself may seems
somewhat,

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00:09:13,286 --> 00:09:15,798
you know, impaired
when you talk to her to get

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consent.

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00:09:16,890 --> 00:09:19,959
Then you need to pursue that
right?

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00:09:19,959 --> 00:09:22,541
So there are all these
considerations

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00:09:22,541 --> 00:09:23,029
there.

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00:09:23,029 --> 00:09:26,795
Or, you know, honestly,
even in this hospital, depending

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00:09:26,795 --> 00:09:27,400
for this

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00:09:27,400 --> 00:09:29,672
usually comes out for a clinical
decisions

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00:09:29,672 --> 00:09:30,970
more than for research.

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00:09:31,704 --> 00:09:34,908
Consent is that availability

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00:09:35,975 --> 00:09:37,310
is a big factor.

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00:09:37,310 --> 00:09:40,799
You know, you're not required
to, you know, hire a private

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00:09:40,799 --> 00:09:41,581
investigator

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00:09:41,581 --> 00:09:44,513
for a week to to locate the
known person

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00:09:44,513 --> 00:09:46,419
that exists was higher up

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00:09:46,419 --> 00:09:49,489
than the person
who's sitting in front of you,

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00:09:49,489 --> 00:09:50,223
right? So,

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00:09:51,391 --> 00:09:54,394
yes. So you have to

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00:09:54,627 --> 00:09:57,530
exercise some,

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00:09:57,530 --> 00:10:00,166
kind of the general rules of
application.