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Application: Challenges in Capacity and Decision Making

Patient rights include the right to informed consent, which entails that patients receive adequate information to make medical decisions. But many questions can arise if patients appear to lack the capacity to understand their medical condition or options. How is capacity determined? Who decides on behalf of the patient if the patient is determined to lack capacity? How should a surrogate decide on behalf of a patient? In this Application Assignment, you will analyze the legal and ethical issues around patient capacity and surrogate decision making by focusing on the following scenario: An 83-year-old diabetic male, Mr. Jones, is brought in to the emergency department because of respiratory distress, by his care-giving daughter, with whom he lives. In examining him, the emergency department physician discovers that Mr. Jones has gangrene on his right foot up to his ankle. Mr. Jones' daughter reports that her father has been diagnosed with Alzheimer's disease. A preliminary capacity assessment is consistent with mild dementia, but one of the nurses suggests that Mr. Jones' confusion might be the result of his respiratory distress, coupled with the disorienting atmosphere of the emergency department. The clinical recommendation is to perform a below-the-knee amputation. The patient refuses this surgery, saying he has lived long enough and wants to die with his body intact. His daughter disagrees and says she wants everything done so that she can take him home as soon as possible, and says that she will sue the hospital if they do not perform the amputation. A social worker comments that the daughter might be afraid of an elder-neglect investigation if her father dies. Mr. Jones does not have an advance directive of any kind and is not under guardianship. Assume that the applicable law in your state is the same as Sections 5, 7, and 11, of the Uniform Health-Care Decisions Act, available athttp://www.uniformlaws.org/shared/docs/health%20care%20decisions/uhcda_final_93.pdf To preparefor the Application:

• Review Appelbaum, P. S. (2007). Assessment of patients' competence to consent to treatment.New England Journal of Medicine, 357(18), 183440.Also review the section of the Merck Manual on surrogate decision making,http://www.merckmanuals.com/home/fundamentals/legal_and_ethical_issues/surrogate_decision_making.html?qt=&sc=&alt=. Refer to these readings as well as to the laws as described in Sections 5, 7, and 11 of the Uniform Health-Care Decisions Act in order to identify legal and ethical issues that apply to the scenario above.
• Consider the role that capacity assessment must play in health care. Why is it important? What are the consequences of not adequately assessing a patient's capacity?
• Read Chapter 4, "Health Care Ethics Committee," in Legal and Ethical Issues for Health Professionals (required reading in Week 6). In what ways would a health care consultation or committee be able to address the ethical challenges in this scenario? How do you think a bioethicist would deal with this case in terms of the procedures he or she would engage in?

To completethis Application Assignment,write a 3- to 4-page paperin which you would address the following questions:

• What are the relevant legal issues at stake? What are the legal rights of the patient and his daughter?
• What are the relevant ethical issues at stake?
• Why does capacity assessment matter?
• How might the hospital's ethics committee or ethics consultation service help in addressing this? Include a description of how an ethics consultant or committee might become involved in this case.