Adult Protective Services – Capacity to Consent (Memo)
STATE OF OKLAHOMA
DEPARTMENT OF HUMAN SERVICES
To:George Miller Date: November 29, 1988
Assistant General Counsel
Subject:Adult Protective Services Capacity Consent
I have reviewed your memorandum of November 15, 1988, and Chase Gordon’s memo to you of November 10, 1988, regarding a Comanche County Adult Protective Services case, and have the following comments.
The Question you posed – if a client has not been found incompetent, does he have the right to rain in a “threatening” situation even though it is obviously not in his best interests? – cannot be answered simply. First, the best-interests test applies generally to children and to those adults who are legally (court adjudicated) incompetent. That test, however, does not apply to adults in general. Absent special circumstances, adults have the right to make their own decisions even when the consequences are detrimental to them. That does not necessarily mean that in a situation where an adult can “say” he does not want protective services the Department is required to accept that decision. Chronologically, the way the Protective Services for the Elderly and for Incapacitated Adults Act (Title 43A Ccs. Supp. 1987 §10-101 et seq.) reads first a report of abuse, neglect or exploitation is made; second, the Department is required to make a prompt and thorough investigation of that report; third, if the Department determines that the person needs protective services, the Department is required to provide or arrange for the provision of those services “in the least restrictive manner, provided the person affirmatively consents to receive, these services” (S10-106A emphasis added). In such cases the services are voluntary protective services. If however, the person does not consent or withdraws consent, the services shall be terminated “unless the Department determines that the person lacks the capacity to consent it which case the Department may seek court authorization to provide services” (510-106, C, emphasis added). At this point (protective services needed but refused), the first issue is whether or not the person lacks the capacity to consent.
The issue of capacity to consent is one which has been the topic of many lengthy discussions both in specific cases and various training workshops. Briefly stated the following instructions have been given to workers dealing with this issue. If the person does not understand the circumstances of his situation, he does not have the capacity to consent. If the person does understand the circumstances of his situation, a second question must be asked: does the person understand the risks and/or consequences to him if he does not receive the protective services? If he does understand the risks or consequences, he has the capacity to consent.
To illustrate the above I relate three actual cases with almost identical physical conditions of the persons involved – a gangrenous foot that could not be saved but required amputation or would eventually cause death. In all three cases the person refused to consent to the surgery and a referral to Adult Protective Services was made. In one case the elderly man with one healthy foot and one totally black foot told the worker while both were looking at his feet that there was nothing wrong with the diseased foot and “it looked just like the other one.” Clearly the man, denying the obvious, did not understand the circumstances of his situation; therefore, he did not have the capacity to consent. In the second case, an elderly woman understood that she had gangrene, that it was serious enough to cause her death, and that the only known treatment was amputation, but she emphatically refused because “Jesus had come to her room and told her He would heal her foot.” She understood the circumstances of her situation but was unrealistic about the consequences and was awaiting divine intervention to save her. This also was viewed as a lack of capacity to consent. In the third case an elderly man understood both the circumstances and the consequences even stating he preferred to die over losing his foot. In view of the fact that, barring a miracle, death was certain and the man was so convincing in his understanding and stating his position, the worker was advised to have his attending physician obtain a psychiatric consultation on the man’s mental state. The psychiatrist confirmed that the man was capable of giving or refusing to give informed consent to the surgery; therefore, he had the capacity to consent and his refusal had to be accepted (he later consented to the surgery). I would add that I reject the test of “no one in his right mind could do that” as the sole basis for determining that the person lacks the capacity to consent. That test is totally subjective and involves the complete substitution of judgment by a person who is not capable of total empathy (taking all factors, tangible and intangible, into account). Choosing to die is not in and of itself enough to determine the person lacks the capacity to consent as indicated above in the third scenario.
Concerning this case it is not clear what protective services were available and offered to the client. Apparently relocating her to another residence was offered. That would have been appropriate if it had been established that her home could not be made fit for human habitation or if the move had been considered temporary while extermination and cleanup could be accomplished. I hope that she was offered assistance to obtain medical attention (it is not clear what, if any, involvement Adult Protective Services had to get her to the hospital). The response attributed to the worker that if the client is competent, i.e. if she can say no, then nothing else can be done is, on its face, accurate, however, competent means more than never having been adjudicated incompetent – it means in fact competent as well (as I hope I have explained above). It is true that many Adult Protective Services clients have chosen lifestyles that are appalling even to seasoned workers, but those lifestyles usually consist of poor personal hygiene and living in cluttered and filthy homes with the clients healthy and content (unlike) with their choices. Even in those situations available voluntary services are offered.
Based on the information stated in the memos, it appears the client was offered assistance in moving permanently with no alternatives of cleaning up her home explored an expeditious choice for a solution. Given the fact that she accepted medical attention, she might have likewise consented to assistance to clean up her home even if she had to leave temporarily. Her refusal to leave may have been the result of that lack of alternatives and her home, such as it was, better in her view than a permanent move.