Academic journal article The Journal of Rehabilitation

A Conceptual Framework for Utilizing a Functional Assessment Approach for Determining Mental Capacity: A New Look at Informed Consent in Rehabilitation

Academic journal article The Journal of Rehabilitation

A Conceptual Framework for Utilizing a Functional Assessment Approach for Determining Mental Capacity: A New Look at Informed Consent in Rehabilitation

Article excerpt

In the United States, the right of persons with disabilities to refuse or accept medical, physical, and mental health treatment has received wide attention in recent years (Gardner & Chapman, 1990; Tor & Sales, 1994). With informed consent a requirement of many federal and state guidelines (e.g., Rehabilitation Act of 1973, Omnibus Budget Reconciliation Act of 1987, Joint Commission of Accreditation of Hospitals), the assessment of a person's decision-making capacity or ability to give informed consent has become of paramount importance to physicians (Appelbaum & Grisso, 1988; Herr & Hopkins, 1994; Wear & Brahams, 1991), rehabilitation professionals (Stebnicki, 1994), and other providers of health care services (Saulo & Wagener, 1996). Because informed consent is inherent in every rehabilitation treatment interaction, it has become a frequent care-management issue in evaluating the decision making capacity for individuals with disabilities such as traumatic brain injury, psychiatric and developmental disabilities, as well as persons with irreversible neurological impairment.

The development of functional assessment instruments to evaluate a person's decision making capacity represents the most recent approach for addressing issues concerning informed consent for persons with disabilities (Marlett, 1984; Tor & Sales, 1994). The functional assessment approach is, in part, a result of legislative changes requiring more stringent measures for the courts to determine the need for persons with disabilities to be appointed a substitute or surrogate decision maker, such as a guardian of the person. Although no single evaluation instrument can determine a person's mental or psychological capacity for decision making, the functional assessment approach advocates that courts look more objectively at behavioral evidence of functional abilities in the person's daily activities when determining the individual's need for a substitute decision maker (Nolan, 1984).

This article will provide rehabilitation professionals with useful guidelines for determining when and if a referral for a substitute decision maker needs to be made, and how much assistance is needed in obtaining an informed consent for rehabilitation services, without imposing unnecessary restrictions on the person's autonomy. A conceptual framework for developing functional assessments will be presented that will provide an approach to assist rehabilitation professionals in evaluating information that many state laws now require in court hearings to establish decision making capacities among persons with disabilities. By operationalizing such legal concepts as "unable to care for self or property" and "unable to make or communicate decisions", this article supports functional assessments that will ultimately provide a more informed, specific, and individualized recommendation to the court regarding a person's decision making capacity.

Determining Capacity and Incapacity

In Search of a Uniform Definition

Although the term "mental incapacity" and "mental incompetency" are used interchangeably, there is a movement in the literature as well as the revised state probate codes to use the term "mental incapacity" so as to avoid the stigma of the person being referred to as "mentally incompetent". Probate codes in general hive been criticized as being vague, ambiguous, and inconsistent in its application (Scogin & Perry, 1986; Tor & Sales, 1994; Veatch, 1986). Presently, the concept of incapacity can (a) vary by jurisdiction, (b) differ legally and clinically, and (c) depend on the type of informed consent decisions confronting the person with a disability (Gutheil & Appelbaum, 1982 Parry, 1990). Also, when probates use different values and assessment measures, the definition of capacity fails to appreciate that a person may have the capability to make an informed decision in one area of their life, but may in fact lack substantial capacity in other areas (Apolloni & Cooke, 1984; Tor & Sales, 1994). …

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