Tenn. Comp. R. & Regs. 0940-01-06-.05 - ASSESSMENT

(1) Validity of the assessment. If an examiner concludes that a service recipient is unable to make an informed decision about a subject to which these rules apply, then the service recipient lacks capacity for a decision about the subject matter at that time.

(2) Performing the assessment.

(a) The examiner must approach the evaluation of a service recipient's capacity to make an informed decision on the presumption that the service recipient has capacity.

(b) The examiner must take every reasonably practicable step to conduct the assessment in a way that enables the service recipient to show capacity to make informed decisions about the procedure or treatment. The examiner must, at the minimum, perform steps 1 and 2 below, as well as those stated in subdivision (2)(c) of this rule.

1. The examiner must:

(i) Determine the service recipient's most effective method of taking in and processing information and convey information in that way;

(ii) Adjust the examiner's communication to allow for physical, educational, socio-economic, cultural and linguistic differences between the service recipient and examiner; and

(iii) Minimize the impact of anything that may cause stress on the service recipient.

2. The examiner must provide all information that is necessary for the service recipient to show capacity to make decisions on:

(i) The issue to be decided;

(ii) The reason a decision is needed;

(iii) The proposed procedure or treatment and the risks and benefits of the proposed procedure or treatment;

(iv) The risks and benefits of any available alternatives;

(v) The service recipient's right to refuse or later withdraw from participation in the procedure or treatment and the risks and benefits of refusal or withdrawal; and

(vi) Any consequences of accepting or refusing the procedure or treatment.

(c) The examiner must seek responses from the service recipient on the following points, at least, before deciding whether the person lacks capacity:

1. The person's understanding of the proposed procedure or treatment;

2. The person's understanding of the issue the person is to decide;

3. The person's understanding of what could happen if the procedure or treatment is carried out;

4. The person's understanding of what could happen if the procedure or treatment is not carried out;

5. The person's understanding of the procedure's or treatment's side effects;

6. The person's understanding of other ways the issue could be addressed;

7. The person's understanding of the risks and benefits of any available alternative procedure or treatment;

8. The person's understanding that the procedure or treatment can be refused and what will happen if the procedure or treatment is refused;

9. The person's understanding of whether the procedure or treatment can be stopped after it begins;

10. The person's understanding of the result of any of the other ways of addressing the issue, refusing to address the issue, or stopping the procedure or treatment after it has begun;

11. The person's ability to communicate the person's own wishes with respect to the proposed procedure or treatment; and

12. The person's ability to maintain a choice by continuing to express the same decision about the issue at various times during the assessment process.

(3) Recording the assessment. The examiner must record the form and method of the assessment, including:

(a) The issue which required an informed decision;

(b) Specific actions, statements, or behaviors of the service recipient that initially gave reason to question the service recipient's lack of capacity;

(c) How information was provided in the service recipient's most effective method of taking in information;

(d) Communication adjustments that the examiner made to allow for physical, educational, socio-economic, cultural, and linguistic differences between the service recipient and examiner;

(e) Measures that the examiner or others took to minimize the impact of anything, which may have caused stress on the service recipient;

(f) Specific actions taken by the examiner to assist the service recipient in demonstrating understanding of the risks and benefits of the proposed procedure or treatment and any alternative procedure or treatment, including actions taken to assist the service recipient's communication of the person's own decision on the issue;

(g) Specific service recipient statements or behaviors that support the examiner's conclusion about the service recipient's capacity to make an informed decision;

(h) The examiner's conclusion on the service recipient's capacity to make an informed decision; and

(i) The examiner's signature, credentials, and the date of the assessment.

Notes

Tenn. Comp. R. & Regs. 0940-01-06-.05

Original rule filed December 29, 2005; effective March 14, 2006.

Authority: T.C.A. §§ 4-4-103, 4-5-202, 4-5-204, 33-1-101, 33-1-302, 33-1-305, 33-1-309, 33-2-301, 33-2-302, 33-3-217, and 33-3-218.