Esther asks, could you say more?
Or maybe again the distinction you want to make between
confidence and capacity?
I've been taught, Esther, that confidence is a legal
determination
of broad in capacity, whereas capacity
is a clinical determination.
Yes, and unfortunately people teach this.
I have given talks in large forums filled with people,
and some people come up to the mic
and tell me that I'm wrong.
And that's why in different talks,
I actually have a slide
documenting why I say the following. Yes.
Capacity compensates. Decisional capacity.
Mental capacity.
All those term terms
refer to authority a person ought to have
if they have sufficient amount of functional abilities.
Okay, so that's what it means.
All those terms mean the same thing.
The distinction between legal and clinical
before they're adjudicated or they
they are deemed to have capacity or not
based on legal sanction provided in laws
that clinicians are allowed to make
for certain decisions.
That distinction should be
just described as whether or not it's been determined by court.
So is it adjudicated or is it a clinical determining
ation?
But to say that decision making capacity is a clinical
and non-legal term is flatly contradictory
to all the laws
in this land and other places that use the term capacity,
mental capacity, decision making capacity in the laws
themselves.
Great.
So anyway Imma go ahead and then I'll come over to set.
Yeah I just had a question.
You had a slide about the abilities
that are relevant to capacity.
And one of them was communicating
a stable preference or decision or choice.
Yes. Can you say a little bit more
about what it means to communicate
a stable preference, and specifically
about the stability, because I'm imagining
a reasonable person who, you know,
might go back and forth sometimes.
Yeah. I'll give you an example.
So a person says, you come in and you say,
so is it okay if we do this procedure tomorrow
morning?
You said yes.
Next morning, you show up to take him to the
O.R.
and he says, oh, no, no, I never agreed.
I don't want that. So you can't take him.
So the attending shows up later that day and talks to him again.
He says, oh, yeah, doc, I really want that procedure.
The next morning you go try to do it again.
And he says, no.
This is an example that needs a little bit more
context
for you to understand because of this
background that, his illness.
But that's it.
So the definition really is stable enough
so that you can carry out
the procedure that he expressed, present preferences for.
If you can't even do that, you can't really,
say that you've met the criterion.
Okay.
So the stability has to do with the specific procedure.
Like yeah, yeah.
And it does vary depending on how.
So for example, there was a recent case in
Germany
where a doctor was convicted because,
he provided assisted suicide to a patient
and the person and they the court wanted evidence that
this person
had a very stable preference for this for an extended period.
And they disagreed with doctors attestation.
That was the case.
But so it really varies.
Sham. Okay.
So I think my question is related
to a number of things in your talk.
So at some point you
mentioned that possession of risk
factors does not equate in capacity.
Can you hear me? Okay.
And then, there are these four dimensions,
psychometric dimensions of what it means to have
capacity.
Abilities, ability. Right.
Or a sufficient degree to have capacity.
Right? Right.
And I think my question probably has more relevance for,
a clinical setting rather than a research
setting.
But I wondered,
for someone, for instance,
that has just really wacky background
beliefs about a certain standard
procedure, right?
This prevents that person either from
understanding what the actual treatment
will entail or from reasoning well,
with what the implications are.
How do we navigate in.
Those types of things?
So I actually it's a question of something like,
how do you know this isn't the person who is
Jehovah's
Witness with well-established understanding that,
you know, people can have these diverse
views and then have a good sign versus
somebody who's under a religious delusion,
right.
So yeah, so that falls under the criterion
appreciation.
Now, I didn't go through an elaboration
of all the abilities
because that's another topic.
But exactly.
So that's something that you'd have to
distinguish.
And there are,
definitions and procedures and,
and judgments that you have to make
that distinguish between the two. Yes.
Right.
Mirror.
I have a question about,
consent for like, clinical procedures
and things, in emergency situations.
So, like, say you're in someone's
in an emergency situation,
like they're bleeding out or whatever.
And like, the EMT has come take them to the emergency room,
and once they get there, they're like,
no, like, I don't.
Want.
You to do anything to me that would, like,
prevent me from bleeding out.
But if you don't do that, then they're going to die.
Like, in that situation, would you be able to
override their, like, clear
lack of consent?
Yeah, that's a great question.
So this would take a lot longer to answer it fully
because there are a variety of situations
like this.
And one, sometimes
the lack of consent seems obvious
but may not be there could be underlying.
For example, I have a I actually had an experience
where the person seemed like they were making a clear
preference.
And then three days later when I talked to
her, she said, are you kidding?
I was on another planet.
You know,
she thought she was in some other setting
and she was completely confused.
But at the time she was able to.
Other times they may have a particular
view
in which that makes sense and you may not be able to
override.
So it really effects sensitive.
Okay. Gotcha.
And and it would be different
in a clinical setting versus a research setting.
Right.
Although as Holly knows very well
that there are research
that's done in emergency settings
and this issue,
that there's a complicated set of issues
that come up.
So because an emergency means a broad set of things, like it's
a person on the field bleeding out,
that's like super urgent emergency,
but then there is a person who comes
in, is having a heart attack.
You know, it's a it's a cute,
but it's not like a, you know, two minutes.
It's. Yeah.
You know, unless they get an arrhythmia,
it's
more of a evolving thing in which you can still get
consent.
The question is, what kind of consent
and how do you assess?
Daniel.
Hi. So my question concerns,
like the hierarchies for surrogate decision makers.
And the answer to this might just be that,
like, it varies state to state,
but I'm wondering if there's any sort of pattern
or like,
if we have any, like, reason to skip over
someone, like, on the hierarchy.
That would be a perfectly capable
decision maker.
You know, like, not extremely old
and, like, knows the patient's, wishes,
but we might have other reasons to skip over them.
Like, they might not have the patient's
best interests.
Like it's the sort of thing that might be,
like, a reason to skip over them.
Like, I don't know, I'm thinking, like,
if a spouse like that, maybe the marriage is really on
the rocks
or that they're headed towards a messy
divorce, we might like skip over them,
and then pick like a adult child who similarly knows
the wishes of the patient. Yes.
So that's a good question.
And it varies on the context and what kind of concerns you
have.
I would
say generally your overall point that
how do you apply that hierarchy is what your question
is.
And yeah, and you don't just blindly
follow it.
If you have reason to suspect the spouse
who is 95.
And she herself may seems somewhat,
you know, impaired when you talk to her to get
consent.
Then you need to pursue that right?
So there are all these considerations
there.
Or, you know, honestly, even in this hospital, depending
for this
usually comes out for a clinical decisions
more than for research.
Consent is that availability
is a big factor.
You know, you're not required to, you know, hire a private
investigator
for a week to to locate the known person
that exists was higher up
than the person who's sitting in front of you,
right? So,
yes. So you have to
exercise some,
kind of the general rules of application.