What does the Redstone affair mean to LTC practitioners?
by Dan Osterweil, MD, FACP, CMD
CEO, CALTCM
 

A fascinating chain of events has unfolded  over the last few weeks regarding capacity determination of the billionaire Mr. Redstone. Personal details that usually are kept in the privacy of a person or family have hit the news headlines. The issue at the core of this story has been determination of one’s capacity to make decisions that is then used in a court of law to determine competence. In this case there were several legal issues happening in tandem, which I will not attempt to analyze, but suffice it to say that some parties were interested in Mr. Redstone being declared competent to make certain decisions, while the other parties’ interest leaned the opposite way.

From a clinician’s point of view, it was fascinating to read the two opposing expert opinions, authored by two professional colleagues of mine, Dr. Stephen Read testifying on behalf of Redstone’s companion who was dismissed by Mr. Redstone as his health care proxy, and Dr. James Spar, one of the architects of one of the statutes that determines capacity to make health decisions, testifying on behalf of another party, contesting the dismissal of two trustees by Mr. Redstone.

The case is still evolving, but there are a few lessons we can all learn and teach our patients and their families. (1) It is wise to express one’s wishes for intensity of medical treatment in a clearly written document. This should be done early, when the individual involved is alert, oriented, lucid and capable of expressing his/her wishes; (2) When complex estate issues are at stake, seek the help of a competent elder law or estate planning attorney to assist you; (3) Everyone over 18 should have an advance health care directive or Durable Power of Attorney for Health Care. The assistance of an attorney for DPAHC is not necessary, but it is very important for each person to name individuals to make decisions on whom they can rely to honor their wishes, and to speak up for them when they are unable to speak for themselves; and (4) Individuals with advanced, chronic or progressive illness should have a conversation with their health provider and execute a Physician’s Order for Life Sustaining Treatment (POLST) form as they near the end of life. 

The skill for determining decisional capacity should be acquired by all physicians caring for elderly patients; indeed, we are tasked with making a general determination of capacity on most nursing home history and physical documents. Also we should keep in mind that capacity decisions by their very nature may be decision specific.  This means that individual decisions may be open to challenge.   However, I was advised by one of my geropsychiatry colleagues, that  a PCP or treating Psychiatrist should  consider referring their  patient to another physician for a consultation to determine capacity—especially when it may not be completely clear from the attending physician’s initial evaluation. Another reason to consider this course of action has to do with physician-patient relations and possible conflict of interest or lack of objectivity.

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