Ethical Issues in Making Capacity Decisions
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“Capacity” is a medical determination that is broadly used to describe a person’s ability to act in a legal environment, as well as the level to which they are accountable or responsible for their actions. The incidence of cases in which capacity is an issue has grown substantially in the past few years because of the aging demographic and the increasing number of cases involving serious mental illness, substance and/or alcohol abuse, or other related mental health concerns. In civil matters, capacity issues arise as to contracts (e.g. is the party capable of entering into, or suing pursuant to a contract), executing advance directives, such as a Healthcare Proxy, Living Will, or Power of Attorney, in Guardianship proceedings under Article 81 of New York’s Mental Hygiene Law, and as to a patient’s right to consent to and/or refuse medical treatment. As such, different statutes will define capacity as it is applicable to that particular area of law. This CLE program will address the difference between “capacity” versus “competence”, review ABA Model Rule 1.14: Client with Diminished Capacity, and analyze the standards of capacity for specific legal transactions.
Carolyn Reinach Wolf, Esq.
Carolyn Reinach Wolf is a Partner in the law firm of Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP and Director of the Firm's Mental Health Law practice. Ms. Wolf holds a J.D. from Hofstra University School of Law, an M.S. in Health Services Administration from the Harvard School of Public Health and an M.B.A. in Management from the Hofstra University School of Business. She is admitted to practice in New York State and Federal Courts as well as the U.S. Supreme Court. Prior to practicing law, Ms. Wolf is a former hospital administrator and Director of Hospital Risk Management.
Ms. Wolf's practice concentrates in the areas of mental health and health care law, representing mental health and health care professionals, major hospital systems and community hospitals, institutional and community outpatient programs, skilled nursing facilities, higher education institutions, individuals and families. Her expertise includes mental hygiene law, including retention and treatment over objection psychiatric cases, mental health warrants, capacity determinations, informed consent and medical treatment cases, confidentiality and release of records matters, interaction with law enforcement in health care facilities and institutions of higher learning, Kendra's Law applications (Assisted Out-Patient Treatment Orders), Article 81 and 17-A guardianship proceedings, civil and criminal litigation and negotiation specific to mental health issues, consultation and advice in navigating the mental health system and legal interventions in the inpatient and outpatient treatment settings as well as mental health issues in the higher education setting. She also consults with health care institutions on issues of end of life decision making, development and ongoing functioning of ethics committees, advance directives, and institutional review boards.
Ms. Wolf is a frequently invited speaker and consultant to health care and mental health organizations as well as institutions of higher education, specifically university counseling centers and administrators, and professional associations throughout the country regarding mental health law issues. Her topics include: mental health legal issues, health and risk management from a mental health care law perspective, the increasing rate of student suicides, serious mental illness on campus, drug and alcohol abuse, date rape, law enforcement, confidentiality, parental notification, documentation and the increasing liability of campus staff, administrators, mental health professionals and the institutions themselves.
She has developed seminars, published many articles for professional journals, lectured, and has been interviewed by the media, including print, radio and TV, extensively in these and other areas of mental health and health care law, providing education to professionals in all legal, medical, and educational disciplines, health care providers, attorneys, laypersons and members of the judiciary.
Ms. Wolf has and continues to hold elected positions in the Association for Healthcare Risk Management of New York State: President-elect, 2006, President, 2007, Chairperson of the Education Committee; Nassau County Bar Association, Hospital and Health Law Committee (Vice Chairperson); New York State Bar Committee on Mental Health Issues (Co-Chairperson). She is also an active member of the Article 81 Advisory Committee, New York County (Co-Chairperson Integrated Guardianship Part Subcommittee), Healthcare Executives Club, American Counseling Association, American College Counseling Association and the National Association of College and University Attorneys. Ms. Wolf also serves as Counsel to County Coalitions of Mental Health Centers. She is also one of the founding members of NaBITA (the National Behavioral Intervention Team Association), a new membership association for higher education, which is dedicated to the support and professional development of behavioral intervention teams whose purposed is to make campuses safer through education, prevention and intervention. Ms. Wolf's title is Vice President for Strategic Initiatives. NaBITA's membership benefits include support and networking for higher education campuses specific to the development, ongoing functioning and planning for either existing or formulation of Behavioral Intervention Teams.
Ms. Wolf is the Founder and President of a higher education consulting company called Campus Behavioral Health Risk Consultants (CBHRC), LLC. CBHRC is a consortium of legal, clinical, public policy and law enforcement experts offering consultation, evaluation, training and education to assist the various disciplines on campus in formulating strategic responses, making informed decisions, creating effective policy and preparing for a variety of evolving, urgent and emergent situations. To learn more about CBHRC please visit their website... www.campusriskconsultants.com .