Decisional Capacity: Rethinking the Standard of Care with Dr. Omar Mirza

Mark Mullen: [00:00:00] Welcome back to Psychiatry Bootcamp. I am over the moon excited to be bringing you this episode. We are discussing decisional capacity again, but actually at this time, we're taking a critical look at how decisional capacity is discussed. I first encountered our guest today, Dr. Omar Mirza at a consultation liaison, psychiatry conference in Austin, Texas.

He was a speaker during a workshop looking at alternative models for assessing decisional capacity, and the session was an absolutely packed house. I almost mistook it for a Taylor Swift concert inside the hotel, but it turns out. Just an academic, presentation by Dr. Mirza, truly standing room only a bunch of people spilling out the doors.

and I was absolutely enraptured by Dr. Mirzas ideas, and he delivered them both with a fiery passion that you don't often see at academic conferences and an [00:01:00] appropriate bit of humor, which was very refreshing. So when I saw your presentation in San Antonio, I was en raptured by it, and I found it really intriguing, but I also found it deeply disturbing and really uncomfortable to sit through, like it was my favorite presentation at the conference.

And I think my favorite, I'll say the most impactful educational workshop I've ever been to at a conference, but also not something that I really particularly enjoyed having to think about. And you mentioned again here that you feel like the Applebaum Gris criteria sometimes harms the patients that we're trying to serve.

What are your specific concerns there? 

Dr. Omar Mirza: Yeah, no, I appreciate it. I think if I speak to the intention of the talk. It was really designed to kind of create discomfort. I guess the analogy might be, you know, when you go to like a trainer, if you walk outta there and you don't feel a little sore, you didn't really do anything.

And so intellectually, I try to craft talks that hurt a little bit because then you feel like, oh, [00:02:00] there was something that happened. There's a, way to kind of punctuate the experience. And I think in some ways maybe I was a little bit intentionally provocative, but not, in any way that sort of, I think stretched the truth.

I wanted people to feel that so that they could really reflect. So coming back to the question about harm, I think the issue really for me is that the model, while intended to really promote autonomy, has now become sort of the tool to suppress autonomy. It's really done the exact opposite. And I'll speak to that a little bit by jumping into the history, if that's okay.

I think that's a great way for us to contextualize it. So going back to sort of pre autonomy days to the sort of, I'd say paternalistic ancestry of medicine, we've always really kind of consolidated power in the hands of the physician with the sense that the physician has dis superior knowledge, the ability to treat, and therefore [00:03:00] the authority to make decisions on behalf of the patient.

Coupled with that is the sort of trust that the physician is gonna do that with beneficence in mind, right before these terms really were developed, that the idea that the physician gonna take care of, in reality, we found that wasn't always true and the law had to step in to protect that. And sort of the first evidence we have of that was when we had Schlendorf versus New York Hospital where Mary Seldorf came into the hospital, abdominal pain, they suggested surgery, reliant myoma.

She said, wait, no, I don't want that. They sort of convinced her under duress to say, Hey, let's do this examination under ether and, you know, let's just try that. Of course, as we talked about in the presentation, and, as we know from history, that wasn't the end of it. They went forward and went ahead and had a surgery and she ended up having to deal with consequences of that weren't even, intended by the physician.

She ended up getting gangrene as a [00:04:00] consequence of the recovery and so she ended up, you know, with harm that wasn't really intended. But the reason that is important is because that really took that case to the courts where we have Judge Cardoza say that anybody of sound mind and adult age has a right to determine what's done with their body.

And that doing so without that consent of a individual is, basically, you know, a violation of their legal rights. And so legally that's the first time we kind of see that established. And that's sort of where we get this idea of consent being sort of. So paramount though at that time capacity really wasn't explicitly articulated.

It was implied with this idea of sound mind and adult age, but it wasn't sort of, as a word really articulated. You flash forward really to, I think really the Nuremberg trials where we all kind of recognized that the Nazi doctors were put on trial globally on a global stage for all the harms that they sort of inflicted on unwilling and unconsenting [00:05:00] patients.

And so they reaffirmed this idea that we must have consent and in order to, for consent to be valid, there had to be certain sub components. And that's where you started to see things like it has to be voluntary, which seems intuitive, but they had to articulate it has to be voluntary, which made sense at that time, given that, you know, a lot of the folks that were being conscripted into care were in concentration camps.

So there was no voluntariness, you know, two, that there has to be some form of disclosure, right? Which was the articulation of the risks and the benefits. And that the person had to have legal capacity and they sort of said legal capacity. At that time they didn't really articulate the four models, a sort of abilities model as Applebaum andSo had done.

But they had sort of foreshadowed this idea that there's gotta be some legal capacity. And I think at that point it wasn't really this idea of the capacity to make decisions. As we think about it today, what I think really they were concerned about at the time is that hey, there is clearly gonna [00:06:00] be these sort of outliers that don't have the ability to make decisions for themselves.

And that I think the one that comes most clearly to mine is children. So they weren't gonna create this dictate that everybody can decide what's done with their body. 'cause obviously there's certain people in society we decide that can't necessarily do that. And so that's why they emphasize that sort of legal capacity.

You bring that back to the states in the fifties, and I sort of talked about this at the talk as well. Opposite coast in California, you got Martin Salgar who comes into Stanford, gets in ar topography. Isn't told that the consequences of that could be paralysis, ends up getting paralyzed, obviously sues as a, good American would.

And the court says, okay, in addition to consent, which is what we saw in New York, you really have an a duty to disclose. And that this duty to disclose is critically important to consent. And that's where we get this idea of informed consent or intelligent consent is. And so what you're seeing and what you're hearing in this sort of narrative is that the entire focus [00:07:00] has always been about making sure that the consent process is about ensuring that the patient is in control of their decisions and that patient is armed with information disclosure to make those decisions.

Capacity was not so much the focus of informed consent at that time. And what the Apple bomb and Gris model has done is that it has through its efforts to standardize the part of consent, which is the legal capacity in a model that, you know, people can apply in a standard form. Shifted the focus away from voluntariness, away from disclosure to this idea of capacity.

Mark Mullen: You start to lose the forest for the trees, right? The idea is all three of these things working together make consent happen. They, render someone able to consent and giving consent. But when you focus on just one of those criteria, it might be maybe not a zero sum game, but you might have to rob Peter to pay Paul A.

Little bit. 

Dr. Omar Mirza: Absolutely, And the courts warned about this early [00:08:00] on. Canterbury versus Spence kind of said, let be careful because the implication of informed consent is that comprehension is the key component rather than really informed, is the responsibility of the physician to disclose.

Like that's the whole point of informed consent. The responsibility is on the physician to disclose, right? You can't be giving valid consent if we haven't empowered you with information. And that was sort of the real. Emphasis of early consent to say consent's. Not just saying I agree or not, it's that we provide you with the power via the information, expertise, and knowledge that we have as physicians so that you can make those decisions.

And not that we need to arbitrate your comprehension. Comprehension's really kind of a, again, puts a focus on the patient and not the focus on the physician providing the information, which is what really the courts were looking for. 

Mark Mullen: So you need both of these things. You need the informing part, and you need the patient's ability [00:09:00] to, I'm gonna say you do need the patient's cognitive ability to understand, appreciate, et cetera.

But your concern is that, in our, at least in our psychiatric training, we're focusing pretty solely on does the patient, is the patient able to demonstrate these four criteria? And by doing that, what we're forgetting is have we informed the patient of everything that could possibly happen and have we really thought about.

What this patient would want longitudinally based on their values, despite their current cognitive condition. 

Dr. Omar Mirza: Yeah. Well, it depends. how radical do you wanna go on the spot? 

Mark Mullen: Let's go. Let's, I was gonna give an example of radicalism, but let's just say very radical. 

Dr. Omar Mirza: Okay, 

Mark Mullen: let's 

Dr. Omar Mirza: do it. Let's fucking do it.

I would, let's, do it. So I'll, say this then. We don't need to focus on the cognitive abilities. There's a interesting article that I sort of just stumbled upon, and I'm forgetting the author, but, they [00:10:00] talked about, when we describe capacity, we talk about it in, in sort of like multiple domains.

But really there's several different types of capacity. There's a capacity which maybe is more philosophical about is there free will, is there an ability to make decisions freely, you know, without coercion or external influence? And that's one form of capacity, which I think we medicalize a little bit.

And then there's the other form of capacity, which is, do I have the legal rights or authority to make my decisions free from intrusion of others? And those things get blended together. And I think what capacity, as a subsection of informed consent is really intended to protect is that sort of legal right to make your decisions without other people intruding.

And that's a sort of legal state. And what I mean by that is like we, I think almost universally though you could argue ethically, maybe it's not so universal, except that children are legally deprived of the ability to make their own decisions. [00:11:00] We collectively have agreed that we're gonna say, you're the exception to this role.

And so I think when we talk about capacity, legal capacity, we're talking about who have we in society agreed can make the decisions? And who have we decided cannot? What's happened through these models, that medicalize the capacity? Is that we started to bring in cognition and the idea of assessing cognition to make decisions.

And that's where then you borrow concepts which are like tary capacity or legal capacity in the sort of context of forensics, which I think is morally ethics ethically slightly different, right? The idea that you participate in a court case and testify and those things could get you into serious trouble.

and we need to protect you from that and provide you a lawyer to handle those things for you is quite different than you saying, I [00:12:00] don't want to engage in medical care. 'cause what we're doing is we're preventing you from opting into a situation that by its very nature can be very harmful to you, 

Mark Mullen: which is different than should you be allowed to manage your own finances.

Right. There's sort of different domains of capacity. 

Dr. Omar Mirza: Exactly. And I think with. Psychiatry in particular, we have this vulnerability to over medicalize things. And I don't know if this, you know, the cynic in me says, well this is the narcissism of healthcare and psychiatry, particularly that we kind of absorbed safety as a, medical illness and decision making as a medical sort of process as opposed to a legal and philosophical process.

In which case I think we should try to step out of it and say there's not really a benefit to us getting involved. But there, there is an argument for it and I think the argument for it is based in this alternate definition, which might take us to a better model. And the alternate definition is, you know, if you take a step back, [00:13:00] what are we trying to do with capacity assessments?

You know, it's a question I really struggled with. And sometimes people say, well, you know, you wanna make them safe decisions or wise decisions or medically prudent, you know, those are some of the sort of quick answers you get. That's not really what we're trying to do people. Right. That lies in the 

Mark Mullen: face of what you're trying to do in a way 

Dr. Omar Mirza: Yeah.

Mark Mullen: Directly actually. Right? Exactly. Yeah. 

Dr. Omar Mirza: Yeah. We're allowed to make unwise medical decisions. We're allowed to make unsafe decisions. Like that's not what we're trying to impose. So what is it that we are trying to do with the capacity evaluation? Like what are we afraid of? And I think when you think about it, it's usually about making value, incongruent decisions.

So things that we know that you wouldn't wanna do due to an impairment, which 

Mark Mullen: is 

Dr. Omar Mirza: reversible. 

Mark Mullen: Yeah. This is a whole different way of thinking about capacity, and I totally agree. Right, 

Dr. Omar Mirza: right. Which is to say, okay, and we can think of like the prototypes, like if you're intoxicated and all of a sudden [00:14:00] you decide you're gonna, you know, you, do something very unlike yourself, then we could say, okay, well that doesn't align with the person I know.

So it's sounds like it's value in congruent. We don't see that this is in a sort of like impaired free state. So like obviously there's a sort of impairment present that could explain why your values are incongruent. That'd be the intoxicants, and then it's reversible, meaning like if we could suspend your decision making for a moment, the hope is we could get you back to a place where you can be back in the driver's seat if we just pause for a moment.

You know, I think that's sort of the prototype of what capacity is designed to defend against, 

Mark Mullen: and I could see that in the case of mania, I could see that in the case of delirium. I think where it gets really complicated is thinking about it in the case of maybe neurocognitive disorders, which I think are where this often comes up.

I wanna make a few comments on some of the things you just said. So one totally agree with [00:15:00] you that we should avoid Overmedicalization of humanity, and I think psychiatrists really at risk of doing that. We start each season with Alan Francis is our guest and he wrote a book called Saving Normal. So you're definitely in good.

Company here in terms of trying to make sure that we stay out of the way as much as involving ourself in people's lives. Two, your comments on making capacity. a highly cognitive task where we're testing things like understanding, appreciation and reasoning. Those things are informed by culture, socioeconomics, life experiences, education level.

And so I think that is where social justice comes into play. And it's are we just wielding our paternalism and our medical power against people who are not in a position to meet this test that we have specifically designed so that then we can do whatever we wanna do to these people. And I think the third piece is.

As a physician, as an attending now for about 18 months, I can see where it's so easy for these comic book characters who were violating capacity or doing an exam [00:16:00] under Ether to start to think, well, I do know better than everybody else. Shit, I have four years of medical school, I have four years of residency.

Every time I tell a joke to my team in the hospital, everybody laughs. I'm a funny guy. I'm a smart guy. And so I think if you're not really careful, you can start to with the, road to hell is pave with good intentions, right? If you're not really careful, you can start to influence people's choices and behavior.

So you have some kind of other ideas about maybe where the Alabama GREs criteria is not the best model for, addressing capacity in certain cases. How do you think about the standard of care here? Because I feel like based on the most recent a PA guidelines, those rely pretty heavily on the album GREs criteria, so I feel confident in saying the album Grisel criteria meets the standard of care.

Do you think of these other models as alternative ways that do meet the standard of care? Do you think of these other models as kind of emerging measures and models that we should think about and maybe try to make more robust? Are they ready for prime time? what do you think? 

Dr. Omar Mirza: Yeah, [00:17:00] no, I it's such a great question, particularly as we think about what are the next steps, and you're absolutely right.

You know, apple, Obama, Ando are really cemented as the standard of care and there really isn't many models that come to mind that compete with this as a, as an alternative. And that's where, you know, Dr. Appel Jacob, who I'm sure you saw speak at the A CLP conference and who's partnered with me a on a lot of the sort of publishing that we're doing around capacity has proposed an alternative.

We've really over the last couple years tried to build the literature base so that there is a viable alternative. And he talked about sort of the respectable minority and that while there is a dominant sort of standard of care, the law does see minority opinions that are respectable and held by a decent amount of people to be viable alternatives.

Otherwise, if you only have a standard of care, then there's really no incentive for innovation or evolution in care. And so you tend to sort of devolve into one [00:18:00] approach that may never be challenged. 

Mark Mullen: I've just never heard this before. Respectful minority is a term that relates to another version. Like people can meet the standard of care by being a respectable minority.

We don't say just because you're not doing what everybody else does. There's a specific legal terminology for this. It's a well respected, I That's news to me, I think. Super interesting. Thank you. Sorry to interrupt. Go ahead. 

Dr. Omar Mirza: No, yeah, and I think it was a wonderful sort of point that Jacob Appell, who just happens to also have a, Law degree to bring up in, in terms of tort and, medical liability, that there is this concept that protects physicians who are attempting to propose alternatives or choose alternatives that may not be the quote unquote standard of care, but still be followed by a respectable minority. And so that's where we've worked really hard to kind of build the literature base on which we can start to propose these alternatives.

And so Dr. Pell has really pushed forward a wonderful model that focuses more on values, if we take that definition I talked about [00:19:00] earlier, which is, you know, value incongruent decisions caused by an impairment that, that we could reverse. Then, you know, the Apple Ball model, which focuses on understanding, appreciation, communication and reasoning really doesn't account for values at all.

And so then how do we know we're upholding the free will of the person if we don't understand what. Is important to them, what are their values? You know, because then what all that model really does is account for one's ability to sort of retroactively justify through a very cognitive approach their decision making.

I said this joke at the talk, and I, you know, free will for me is not the ability to justify your choice. You know, a lot of times we don't sit there and discuss the risk benefits with ourselves about certain decisions. There's usually a certain desire or value and maybe an expected outcome, and then the impulse to complete that decision.

and I use the example of buying Bitcoin, 

Mark Mullen: which, you know, if you assess me on a cognitive assessment with understanding [00:20:00] appreciation, risk, I would fail miserable. Yet 

Dr. Omar Mirza: nobody infringes on my ability to do that because we're not necessarily in that ecosystem where that power asymmetry is leveraged.

Or, I would say a like biomedical logic, you know, and we see that in healthcare that. We privilege the biologic explanation for everything, the biologic understanding and reasoning. And when patients don't come to us with that, when they come with their sort of indigenous and instinctive knowledge and expertise, we often dismiss that as, you know, not understanding or not appreciating.

And then that's where the harm comes from because we strip people of their ability to make decisions based off of a model that we have designed that favors our reasoning and logic, as opposed to centering one in the patient. And so that's where his sort of alternative, which is value space to say, first let's assess, is there a discordance between what this patient wants and what we know [00:21:00] their values to be?

Right? Well actually take a step back before that, we have to assess their values, right? So we have to be aware of their values and this, is gonna come kind of naturally in one working with the patient. You know, when you get to spend some time with 'em, you get a sense of like, what makes them tick, what do they like, what do they avoid?

That's part of the relationship that you should have as a physician with your patients to understand what's important to them. And sort of from that extrapolate some idea of their values. Then try to see, you know, is the decision that they're making right now does that match with their values? And there's a lot of economic literature out there that says we make value incongruent decisions all the time, right?

So it's not that the incongruence in and of itself is a sign of pathology, but that might warrant our curiosity rather than refusal or unwillingness to participate in a biological explanation, we should really kind of measure one's capacity against themselves through the idea of their [00:22:00] values. You know, what is this person's values?

And if this decision seems inconsistent with their values, that should warrant our kind of concern. So for example, if we have the grandma who's like been the most adherent patient her entire life, and then all of a sudden. The doctor is saying, Hey, look, you have a very serious condition and we propose this, and all of a sudden she's like, I am absolutely not doing that.

I'm going with my alkaline diet. You know? Then you might say, wait, you know, this doesn't sound like Ms. Smith. Ms. Smith is, takes pride in going to all her appointments and she's takes copious amounts of notes and loves to, you know, or adhere to a medical framework of, care, 

Mark Mullen: and maybe we do let Ms. Smith make that material.

Grandma Smith make that decision. But it should, you're just saying it should peak our curiosity. You're not saying that's the test, you're saying that is the reason to do the test. 

Dr. Omar Mirza: That's the reason to then you kind of say, okay, well, I'm curious now, right. That we seem to have a sort of disconnect with her own values as, we know it.

Let's see if there's a reason that [00:23:00] could explain this, right? That either is quite rational, like maybe she changed her mind fine, or is there some impairment that we know that could influence someone's abilities to. Have value, consistent choices. And that's where you could say, okay, well I know if she's delirious, that's a good reason to suspect that maybe, or explain why her values are changed, or if she's intoxicated or if she's, you know, experiencing, another sort of cognitive or mental health issue that might influence that.

And then from there you might think about, okay, now is there a solution to this that we could resolve, that we could help restore her ability to make decisions that are value consistent? You know? And so what we're doing here, rather than focusing on the comprehension of facts and the appreciation of those facts from a model that we privilege, we're really starting to look at, okay, what's important to this patient?

Is that [00:24:00] translating in the decision making that they're making right now? And if it's not, can we come up with an explanation or solution that addresses that? And with the intention, again, to try to firmly center the patient in their decision making, not to remove them from that. 

Mark Mullen: It really is so radical.

And if you're listening to this podcast, you know, and you don't regularly work on a cl psychiatry service, it might be hard for you to appreciate just how radical what Dr. Meers is proposing is. I'll also say that I appreciate you toning down the radicalism when talking about the reasons that we do leverage our, power dynamic in the hospital.

You mentioned that we do that for biomedical reasons and I, hope that usually that's the case, but I think there are probably, medical legal reasons that are not biomedical in nature, that we leverage that power dynamic. I think there are, we have to admit that there are economic reasons that some people would leverage that power dynamic, just to put it mildly.

But I appreciate you trying to give clinicians the benefit of the doubt. so we're 

Dr. Omar Mirza: sitting Yeah, well we could turn up the volume. 

Mark Mullen: Yeah. [00:25:00] Yeah. 

Dr. Omar Mirza: It's funny you say that 'cause you know, I'm working on a paper right now with a colleague of mine about. Capacity as a colonial act and sort of the metaphor of colonialism where you see that there's a physician that's the colonizer privileged, feels that they have a superior morality and, knowledge, and that they want to subjugate the patient who's the sort of indigenous, and we colonize their body and civilize them through a process of capacity, right?

That, oh, it's not that you have a different value or you privileged a different perspective. It's that you lack civility or in this case capacity. And so we have to, for your own benefit, right, civilize you. And that means take away your refusal or claim your consent and do what's best for you from our perspective.

And so in many ways it, it really sort of echoes that. Colonial mindset. And in that sense, [00:26:00] there's a lot of literature that sort of talks about how there is this sort of imperialist ancestry to the way medicine is practiced in particularly in the sort of like the power asymmetry that you see between physicians and patients.

And so my perspective is really grounded in, I think like an anti-colonial lens to say we are here as, friends, companions, servants, as servants of our patients. And in that sense we have to take a sort of humble approach and recognize that the patient's got a lived expertise in their body, right?

There's nobody who understands the patient's, you know, perspective better than they do. And so when I meet patients, I say, look, you're the expert of your body. I'm never gonna have more knowledge about your body than you do. I can only bring sort of this textbook knowledge as a tool that you can use with your own expertise to make decisions.

And so my job is not to tell you. The right or wrong decision, my job is to sort of really create that [00:27:00] disclosure, which is to say, here's the information that I can bring to you to serve you in what it is that you wanna do in this moment, and that might not be what I want for you, and I have to accept that that's not my job.

I 

Mark Mullen: don't think it's a stretch at all. I think that the leather, the argument that you laid out to me, it's common sense. And I think it happens all too often. I think we would agree that at its best, the apple bottom crystal criteria, at least the intention was that it would be a way to serve your patient and to, work in this model.

But we've both seen cases where it has not been used in that way. And I think that's probably what makes you so passionate about it. So when we're talking about this values based assessment that your friend and colleague, Dr. Appel has sort of introduced as an alternative model or sitting down with a patient, getting to know the patient, getting to know the patient's values, I'll point out that's, Extra tough on a consultation liaison setting where you don't know the patient longitudinally. And so you may have to take some time outta your day. You definitely need to sit down and get below eye level of the patient and get to know the patient you're seeing what the reason is [00:28:00] for this, decision that seems to be against the patient's values you're seeing if you can find a solution, if you can find a way to resolve it without asking these cognitive questions.

We are gonna take a quick break and when we come back we're gonna get into the nitty and gritty of how we would think about doing this at the bedside with the patient. And then we will talk through, the free will example that you put forward in your graphic novel.

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Welcome back to the podcast. So let's get into one of the things that you said that really struck me at the San Antonio meeting was, which was I had been conceptualizing capacity assessments as something that needs to happen in order to do an intervention or consider doing an intervention. I have not been thinking about capacity assessments themselves as an intervention.

Right. But you seem to think of the capacity assessment itself is an intervention. Could you tell me about that? 

Dr. Omar Mirza: Yeah, absolutely. I, this is based off of, a paper that Jacob Appell and I put out. Basically calling for capacity to be reconceptualized. And this came from some anecdotal changes that we were doing, when approaching this, which is to see the capacity assessment itself as, a clinical intervention.

And this comes from the idea that [00:32:00] capacity has arms when you introduce it into the care. And, when you work with folks, in cl I mean everybody nods their head 'cause this is so intuitive, observing how capacity is used in care and how it can cause sabotage to the patient physician relationship.

How it can inflict coercive treatment on people. It can further traumatize folks who've, you know, experienced a great deal of trauma in the healthcare system. So you start to see that it's not just like, Hey, I'm coming to measure your height as a sort of like very benign or inert interaction. It's really has consequences that could harm people particularly around, you know, their, autonomy and just their sense of agency.

You know, there's, a great deal of harm there. So if you start to observe that, you start to. Believe that there isn't negative consequence of this, then you start to think we've gotta be a little bit more judicious about the application of this. And that's where we started to say, it's no longer a capacity assessment.

'cause assessment seems very benign. You know, I'm just gonna assess your height and weight. But really it's a [00:33:00] challenge. And the challenge being, you know, like a glucose challenge, it's like a provocative test. We're, you know, testing your cognition via these questions that can be intrusive, that they can feel dismissive, invalidating.

And so if you recognize that, you start to see this less as assessment, more as a challenge. And once you begin to incorporate that challenge sort of terminology, that semantic shift starts you to recognize well, challenges might have some risk associated with them. And those risks are the ones we talk about.

Mark Mullen: Talking about this with you. I'm, amazed how well I remember that talk in San Antonio. One of the things that you said was, because it was months ago at this point, your favorite consults or maybe your least favorite consults are the kidnap my patient consults. And these are a very common consult that we get of, grandpa is refusing sniff placement.

Do they have capacity to refuse sniff placement? What, let's, just use that as sort of our example because I think it's such a common one. And, if you're gonna talk about kidnapping, the harms seem pretty obvious, but walk me through the harms of even asking that [00:34:00] question and doing the capacity challenge.

Dr. Omar Mirza: No, absolutely. Usually by the time we get involved, a SEAL psychiatrist, somebody might have already who's read the apple bomb article, or is at least familiar, with it from their medical education, has probably already asked the patient, do you understand the risks of going home? Or do you understand?

So that in and of itself, that sort of challenge to one's autonomy followed up by a psychiatrist who sort of echoes those questions can be very dismissive and validating, you know, let's say. Why do I need to explain myself to you? Like what authority do you have over me, aside from the physical containment that you have of me via this environment?

What authority do you have that allows you to question my expression of my choice? You know, you know, it's a free country as people like to say. So that in and of itself can be very, intrusive that question. And making people defend themselves in terms of their choices, not just for the first time, but likely third or fourth time because maybe a med students ask these questions, a [00:35:00] resident, maybe the attending, and then the sense of their concerns now calls psychiatry to come.

So now you're the fourth, maybe fifth person asking these questions. It becomes very demeaning, dismissive, and intrusive. And so people can be very offended by the question itself and also the idea that who are you to ask me? Right? and this comes from this idea of like, what is our. Relationship. What interpersonal currency do we have with people to ask these questions?

Mark Mullen: Usually none. 

Dr. Omar Mirza: None, right? And so, and then where do we derive the empirical authority to do this besides our own power that we've created in this environment? and it brings an interesting sort of thought that popped into my head about this. When somebody called me from an outpatient office once and said, I have a patient here.

I don't think they have capacity. What should I do? And then I thought about it. I'm like, well, what can you do from an outpatient? And then I said, well, wait a minute. If our construct dissolves over the boundary of inpatient, outpatient, then is this really about [00:36:00] power or is this about something empiric?

And then I realized this is really a flex of power that only exists within the confines of a, the boundaries of the hospital. Because once you get in the outpatient office, if somebody says something and you don't think they have capacity, there's nothing you can do about that. It's just a word that you throw, at them.

But they're gonna walk out their office, they're gonna retain their power. It's when they're vulnerable. In the confines of our environments in which we control them, right? We put them in uniforms, we give them numbers, label them that we can now tell them that, yes, I have the authority to interrogate your decision making.

And that's where this whole thing becomes very dangerous. And why we sort of see it as a intervention that has its risks and benefits. Like, you know, a lot of people are like, well, no, it's just, we're just checking to see if they have capacity. It's not like you just check the abdominal cavity with the exploratory lap just to see what's going on in there.

You know, like there's a risk to that. Even though you might be looking for something and you have [00:37:00] some concern, you're not gonna just open people up just to see. And therefore, I don't think that we should be going in and interrogating people's decision making and choices, just, 'cause we're a concern, right?

There needs to be a sense of responsibility. And if we're gonna rope back in the, sort of comic book analogy, you know, the. Peter Parker's uncle, uncle Ben said, you know what? Great power comes, great responsibility and there's a great deal of power that we hold over people's lives in this environment.

And so with that, we have to have an immense amount of responsibility. And so the sort of talk to the revolutionary who's really empathizing with this approach, the first thing you gotta do is just reconceptualize how we talk about capacity. And that it's not an assessment, it's not a measurement. It is an intervention.

Like the same way that you would do an exploratory lap. And if you do that, you're gonna start to think about what are the risks in this and what are the benefits? And if there's no benefits, then I certainly shouldn't be doing this without really considering that. And [00:38:00] I think that's what we ask as the sort of bare minimum.

Mark Mullen: I'm interested in that answer because when I heard you explain this, and I think even now what I perceive, like I, I get that it's intrusive, it's uncomfortable, it's offensive for sure to patients. It ruins their therapeutic alliance with you at the hospital. Next time they need medical care. They might think, I'm not going to that hospital.

That was terrible. They incarcerated me and I, that would be fair. But when I think about the risks and benefits, I think about the risk of them being what? Restrained, sedated, kidnapped, taken somewhere. They don't wanna be. I think about the economic risks. Now they're settled with a bill from the hospital and they're settled with a bill from the snf and they didn't even want that in the first place, which is so fucked up.

I think about the risks of ruining their relationships and them not being able to go home and see their pet. And see their kids and quality of life. Are you thinking about all those as well? So this is a yes and then 

Dr. Omar Mirza: Absolutely. 

Mark Mullen: Okay. 

Dr. Omar Mirza: Absolutely. 

Mark Mullen: Absolutely. And we should those mean, those are should mention the benefits though, right?

The benefits being if they are making a value and current decision and or we have to do what the courts ask of us. [00:39:00] I, guess what you're saying too is like we're misinterpreting what the courts are asking of us. They're not asking us to do the RESO assessment on everybody. 

Dr. Omar Mirza: You know, look, the reality is the courts are there to protect patient's rights against us, you know, and I think that's an un uncomfortable thing to think about because we don't see ourselves as perpetrators of any violence, but it is violence to deprive people of their ability to make choices for themselves.

You know, and, you want care to be delivered to a person who's consenting. And if they're not, our focus shouldn't be about how can we sort of circumvent their refusal or opposition or hesitation, but really figure out what is it that they need from me to help make the best choice for themselves. And that might be a choice that I don't want them to make.

And that's something we have to sit with, you know? And so I think the focus has been lost in service of a model that's like, okay, we gotta focus on comprehension 'cause. That's the standard of practice. And then there's [00:40:00] liability associated with that. And obviously there's harm, which is a sort of broader principle, but I think those things cloud what really is the essence of, what we're supposed to be doing, which is upholding consents and consent.

Real focus is making sure it's voluntary, making sure we disclose. And then the third sort of stepsister is really the capacity at legal capacity issue, you know? And so you're right, the harms are incredible. So talking about that old, older gentleman like, yeah, pulling him out of his environment, forcing him into a soar.

And then we don't have any responsibility after that's done. You know, I, talk about like empiric authority. We do very paternalistic things with children or people we have relationships to, because we have a sort of bi-directional relationship to afterwards. Like, if my children do something dangerous, I'm the one after the fact who's going to deal with those consequences?

A as closely as they are. For the duration of their life. I'm on the hook as a doctor, I make [00:41:00] that choice. And then 10 minutes later, that decision is now theirs to live with. But I made that choice, you know, I'm not paying their rent. I'm not, you know, feeding their goldfish that is no longer being fed.

You know, if you pull people out of, their home environments, who's paying their rent? You know, do they get homeless after that because nobody was there to pay their bills? 'cause we collect them out of their home and 

kidnap them 

You know, and we don't think about that. That's not anything that crosses our sort of, equation of the decisions we make.

We just look at it from a very narrow biologic lens. Like, is this the right thing for the pathology? You know, comes back to another thing that I wrestle with, like, am I a disease technician In that moment? Is my primary responsibility to just sort of address the pathology that I see in that moment? Or is there something more holistic about what it means to be a doctor, which is to maybe relieve suffering, optimize health?

And those things may not always be treating the. Specific pathology at that point, but recognizing somebody's [00:42:00] home environment, the comfort of the people around them or their own anxieties are a big part of what makes them healthy and, well. And those are, should be just as important to me as treating the hyponatremia or, you know, addressing the infection.

Mark Mullen: Couldn't agree more. Okay. So let's talk about kind of how the literature has evolved if we're gonna reconceptualize capacity beyond Applebaum Gris. So I think you brought forward something, what I call it, the free will model. Could you tell me about this? 

Dr. Omar Mirza: Yeah, I'll jump into that first. But that's, that is published not in any peer reviewed journal.

So it's based off a lot of peer review articles, but it hasn't been peer reviewed. So I wanna qualify that 

Mark Mullen: this is kind of your idea of reconceptualizing capacity that you're putting forward. 

Dr. Omar Mirza: Yeah, and that's sort of the next step. if you've accepted Reconceptualization, you're like, that's good, but I want to go further.

Then I think the next model is the free will model, which. Something that I use to teach residents and students as a framework to help them with all the different variables and levers that often get pulled in [00:43:00] capacity. 'cause it can be very daunting. A lot of people really struggle with it because there's so much legal and ethical intersection into this.

So I came up with this mnemonic free will intentionally 'cause at its core, I think what we gotta remember, this capacity is to support free will in the context of consent. 

Mark Mullen: And at your core you are an academician and you'd love acronyms. I admit it. 

Dr. Omar Mirza: Yeah, exactly. You gotta remember what they stand for though.

So, but in that, you know, I sort of outlined these headings, which kind of will guide your approach, which is first foundation. So a lot of medicines practice locally in terms of the laws that regulate it, and those are at the state level. So I think it's important to just familiarize yourself with the laws in your state.

As well as nationally, you're gonna get a sense of the background. 'cause a lot of anxiety around capacity is just, I don't understand the law. And so without going into it really quickly, I'll just say the law very firmly stands in support of patients making their own decision. They are not necessarily as [00:44:00] concerned with what's medically the most right thing to do.

It's more about making sure we protect patients. And so all the laws that you will encounter in this search are gonna show you that's what the law sees. So once you establish that, you can feel a little bit more comfortable going into the next part, which is interrogating the reason. So why is the capacity being challenged in this moment?

And it might be that, the patient is refusing or the patient is, you know, really readily accepting whatever it might be to kind of get that clear because that'll help guide you moving down the line in terms of what to expect. Then you want to. Understand who all is involved. So the E is everyone.

Identify all the key players. So if this is like a game of chess, it helps to know what each piece can do so that you can anticipate the move. So if you know the team really just wants the capacity consult to sort of bless the signing out of a MA, [00:45:00] or there's a daughter involved who's really anxious, or there's a legal and risk that's involved, then you start to kind of see the board in terms of who's playing what position, and you can anticipate what everybody's interests are, which leads into the next one, which is what is the expectation?

What does the patient expect, what does the family member expect? What does the team expect? And if they all align, sometimes you know, the patient wants to sign out a MA, the team wants 'em out, and then the family wants 'em out. So I'm like, if everybody wants the same thing's, point of it, why am 

Mark Mullen: I single patient?

Dr. Omar Mirza: Yeah, 

Right. And then you realize it's really more about something, liability, anxiety or something else, and not necessarily, hey. If everybody's aligned, then like there's no point in bringing this up. So kind of getting the foundations, understanding the reason for the consult or the question, and identifying everyone and then understanding the expectations.

This can all be done on the phone. So I like to do phone work in cl, which is really work the team. So I, before even seeing the patient, you can get all this information and that can help you sort of find your way out of [00:46:00] the capacity question to say, okay, wait, this is not a need for us to do this right now.

Everybody agrees, like, just let the pitch go. It's not a big deal. So that's the free part. Then you go through that and let's say you still feel, or the team still feels that there's a need for you to actually do some more work with the capacity. Then you can go into the will part, which is really when you approach the patient, how do you, what's the stance you take?

And so the first one is, what does the patient want? So rather than coming in hot saying, do you understand the risk benefits, which is usually how much of a approach this, because we wanna jump right into the apple bomb criteria. I think the approach should just be, Hey, tell me what you want. I just wanna understand what you want because I'm hearing things from everybody else.

What is it that you want? And this gives them an opportunity to articulate their perspective and it gives them a chance to feel validated and heard, and for you to build some currency with that person. So I'm not coming with any agenda other than understanding what is it that you want? And then going into the investigation.

So once I've got a [00:47:00] sense of like, what is it that you want, the eye would be kind of gently investigating. And that's with a curious lens, you know, like what is it that the team's worried about? What, why do they not wanna agree with, you know what you're saying? You know, what is their concerns? And I talk about sort of the DJ COD method of this approach, which is kind of externalizing the bad object and saying like, there's a they them, he out there, 

Mark Mullen: they don't want you to win.

Dr. Omar Mirza: They don't want you to win. Right. as they, and you know, they don't want you to sign out a MA they don't want you to refuse or whatever. I'm 

Mark Mullen: allying myself now with the patient against this day. 

Dr. Omar Mirza: Exactly right. So we are creating, you know, a relationship, a partnership in understanding what is it that other people don't get about what you're saying.

'cause it seems at its safe, face value, very reasonable to me. And that again, sort of an attempt to kind of repair any invalidation or, dismissive feelings that the patient might harbor when you approach as a psychiatrist. [00:48:00] 'cause it's gonna be loaded, you know, as a psychiatrist, people are gonna be like, oh, great.

They think I'm crazy. So you kind of approach it as, hey, I'm here as a, concerned person that wants to understand you and wants to understand why other people can't understand you. And that helps you investigate. Their sense of what was communicated to them, why people might be worried about what they're choosing.

And so in a, sort of backwards way, you're doing the apple bomb assessment, you know, you're doing the cognition, like what are the, risks? Why do they think this is so risky? 

Mark Mullen: Eventually you are still doing that assessment. You're just taking a lot more context. 

Dr. Omar Mirza: Yeah, exactly. And so you're still taking sort of the standard of care approach.

You're still getting that, but you're just coming at it from like an oblique angle so that it doesn't feel as, you know, directly challenging or offensive as, maybe some of the traditional questions are. And then you start to listen, and that should be happening all the time. But you're really listening because, you know, in my opinion, capacity is rarely about one's cognitive abilities.

It's usually about breakdown of some type of communication. So you're listening to [00:49:00] find out, you know, what, is it that this person's really communicating? Are they fearful? Do they just need more time? Are they hangry? You know, I, can't tell you how many times I've been called for patient that's, refusing, you know, a surgical procedure.

You know, they're told the day before, you're gonna be NPO tonight and then we're gonna take you in for the morning and the, you know, morning passes, it's two in the afternoon. And that patient's now hungry, tired, and doesn't realize that, you know, their case got bumped, et cetera. And then as the act of sort of frustration, me saying no.

Yeah. You know, and so in that sense it's not about understanding appreciation, it's just hearing that hey, this person's tired, they're hungry, and we should just cancel a procedure, reschedule, make sure they get in right and early in the morning and then, you know, that's salt. And so that leads into this next part, which is rather than, just kind of pursuing capacity to say, okay, I've listened and I can foresee a logical solution to this, which doesn't involve decentering that person [00:50:00] from the decision making, but rather saying, okay, it's you're hungry, or, you know, would it be more helpful or reassuring if we called your primary care doctor and asked them what they think about this?

Like, do you have people in your life to help you make these types of decisions? Would it be reassuring to not hear from me, but maybe from your wife or your doctor, or can I print you some stuff and let you read it? And then can we talk about this later today? 

Mark Mullen: Can we delay this procedure, treat the underlying condition, and then maybe go forward with it or knock it or at least then you can make the decision.

Dr. Omar Mirza: Yeah. Or if this doesn't happen and let's say your way, doesn't work, would you consider it after that? You know, just trying to compromise is really what you're trying to do and that sort of listening for logical solutions and that, gets you to a place where you don't have to go full force and deprive that person of the decision making, but recognize that most of the time you can solve these issues.

People come to care or come to the hospital because they're feeling unwell and they're seeking some type of [00:51:00] relief from that. And I would think most of us come to work to provide relief. So if we both enter this equation with the same perspective, then something happened most likely in the communication where.

Those two things don't align. And we just need to focus on troubleshooting that rather than saying, okay, the fastest way to, you know, treatment is to attack your ability to make this decision through this model, which is excessively cognitive. And then it de privileges people who have lower education, who have lower socioeconomic status.

You know, if you look at the Barstow study, which kinda laid out a table of all the different factors that, are predictive of risk factors of losing capacity, a lot of them were just, you know, signs of, like power asymmetry. People who had less than a high school education, people who had a uncomfortable prior experience with the healthcare system, people who didn't speak English, like how do those map to a cognitive model of capacity, if not [00:52:00] just being proxies for having socioeconomic, vulnerabilities.

And so that's where I really struggle with the model and the Apple law. 

Mark Mullen: So that is our free will approach. You can listen back through that and you'll find each of those letters in that acronym if you want more on it by the graphic novel linked in the episode notes. It really, I've never read one of these before and I was like, I showed my wife, I was like, this is so cool.

So, that's where you'll find more about the free will. It all makes sense. I'll also add that decisional capacity is decision specific and when you get to that final L, that logical solution, you're also then determining, okay, now that we've had this conversation, now that we've phoned a friend, now that I've gotten to know you a little bit, it sounds like you're telling me that you think this is your decision.

This logical solution is what you wanna do, and. In that case, probably we're all gonna be able to agree with it. That's the decision that you're making. You do have the capacity to make that decision, and we can move on with our lives without getting trapped in this binary or getting trapped in this model where it's me versus you, [00:53:00] or all about medical legal issues, et cetera.

Dr. Omar Mirza: Exactly. 

Mark Mullen: Okay, so the Jacob Appell values based assessment. If I wanted to go into work tomorrow and do this with a patient, could you tell me how? 

Dr. Omar Mirza: Yeah, absolutely. I think it starts with really beginning to understand and learn about the patient and that I don't want that to feel like an expert chore, right?

That should be something that we are doing in the process of caring for somebody like care shouldn't be so detached from the human being that we don't understand anything about them. And I think sadly, the pressures of healthcare have made that feel more distant from what we are supposed to be doing.

Though that's not the case or the experience for patients come looking for comfort. You. And that's not necessarily always the most technical surgery. It's the expression of care. And so I think you have to really begin by kind of returning to the core values of what it means to be a doctor, which is to [00:54:00] provide that care, to be understanding, to learn about that patient.

In that process, you know, you're gonna get a sense of like, what are their values? Are these people who prioritize immediate gratification? And we know all, a lot of those in the hospital, right? Who just, it's a, they live two minutes at a time and nothing matters after that. You know? And those might be the folks that are perceived to be most disruptive because in that moment, it's just, right now, there might be people who are really thoughtful and cautious and so they don't like to do things without extensive explanation, et cetera.

And that'll map to what their values are. And so once you have a con, sort of, a little bit of an understanding of construct of values, then you can start to see is there some discordance between the values? is there, something. That this person's doing with the preference they're expressing right now that doesn't match with what I perceive to be their values.

And remember, this is our perception too. So we have to recognize that this may not always be accurate. The only person who truly understands their values [00:55:00] is gonna be the patient. And so it's, as much as we like to think that we can get a sense of that, because it's gonna be hard to really truly know that.

But at some level we're gonna do an effort, make an effort to do sort of understand that and sort of make sure that those things align. And if they don't align, can I come up with a plausible explanation for that so that I don't have to attack or challenge this person's capacity? And it might be, hey, that person doesn't think this is, you know, in line with their values for a specific reason.

Or maybe their values have evolved in the course of this time. So there might be a reason that explains it. If there isn't a reason that's. Acceptable, but it's a reason that we think that we can treat, like say, delirium or a manic episode or something where there's a intervention that could reasonably restore that person to a position of making more value, concurrent decisions.

Then you wanna focus on that as opposed to depriving them of their ability to figure out, okay, if [00:56:00] this is, let's say an example, intoxication, maybe let's delay the decision a little bit until they're less intoxicated, and then ask them again, let's, if it's me like mania, right? Then that's something maybe we can offer treatment in terms of a mood stabilizer to try to help get them back into a position where they can make it all with the focus of really kind of as much as possible, empowering the patient to make decisions that are consistent with their perspective or value.

And there's gonna be times where that's just not possible, right? And that's where you kind of have to break the glass and say, okay, I have assessed this against your values. I've tried to meaningfully intervene in a way to restore that capacity. And if I am unable to do so, now I have to really kind of decide or make the decision about whether we're going to intrude on one's autonomy.

And I think that's the way we should look at it. It's like really breaking the glass, you know, and say, okay, this is a situation. We gotta pull the fire alarm now. Right? 

Mark Mullen: Not, it's not 

Dr. Omar Mirza: always given that 

Mark Mullen: reverence. We're not, 

Dr. Omar Mirza: you [00:57:00] know, and that I think gives that sort of exact, that reverence, that, that sort of respect for how intrusive this is.

And that's where you still hold onto the sort of idea of capacity. And then there's this space now when if you've accepted all these and you're like, Hey, these are great, listen to it, and you really wanna push yourself, I've become more and more disillusioned with capacity entirely to a space where I think Bogle is.

they put out a real interesting ethics paper a couple of years ago about just ditching capacity entirely. And I, more and more I'm leaning towards. That perspective, we can get into that if there's a time and space for that. 

Mark Mullen: Let point out one thing you said about the values-based assessment. So in this case, you are looking at whether or not the decision that the patient is making aligns with their values.

And one thing that occurs to me is in a way you're reframing the sliding scale. So the traditional sliding scale and capacity assessments is basically, is this a bad decision? Meaning do [00:58:00] the risks pretty clearly outweigh the benefits? And if so, then we would slide our scale over and say, you need a very firm grasp of the Apple bottom Grisel criteria for us to allow you to make this bad decision.

Or is it something where there's a lot of benefits and very low risks? And so even if you're not able to really explain your thought process that well, it's pretty clearly a good decision. And so you don't need a very strong command of the, ah, I'm gonna criteria, right? That's a traditional sliding scale.

But in this case, the sliding scale is how far off from your values is this decision? Is this decision really far off from your values? And based on what I know about you and what your family has told me about you, this is a wild thing for you to be doing. If so, then we might need to really. Interrogate or maybe investigate in your words, that thought process that is Obama gris criteria to make sure that we're serving you the best we can.

If this is, it doesn't even matter if it's a good or bad decision. If this is something that is really in line with your longitudinal values and who you are as a person, then I might not need to investigate the Obama Gris criteria so much because this is par [00:59:00] for the course for you. I think that's just fascinating.

Dr. Omar Mirza: Yeah, no, absolutely. And I think the, this is where we uncouple the idea of safety from capacity. 'cause it's like a lot of things in psychiatry, unfortunately, we've medicalized good outcomes and bad outcomes. And there's a good paper by Robert Perscom, dignity of Risk, which I think I introduced at the talk and concept post.

He worked, extensively with the intellectually disabled and he came to the conclusion that, you know, there is this sort of intuitive desire to protect people, you know, and, we, consider that sort of ence do no harm as our sort of fundamental duty. But in that protection, you can smother people by removing all risk in their life.

And so there is a dignity in allowing people to engage in some degree of risk. And in a community, particularly intellectually disabled, you can imagine how there is that extreme paternalistic push to deprive any risk. And that, you know, he talked about it maybe from a [01:00:00] philosophical perspective, but it's interesting to think that we're defined not by sort of the culmination of our good decisions, but really oftentimes the culminations of the painful and difficult decisions that we made that define who we are.

So if you eliminate and sterilize all the risk that anybody could ever encounter in their life, you really deprive them of their identity and you erase who they are. And I think that, you know, particularly around capacity, there's this push to say, okay, let's make sure that we don't allow people to make incapacitated decisions.

But what is a capacitated decision? I mean, if you catch. Hungry enough. Sometimes I'll make a decision that's not consistent with a decision I would've made two hours before. Do we intrude on that? Like at what level do we decide this degree of 

Mark Mullen: That's so 

Dr. Omar Mirza: true. Coercion or influence. Right. You know, shame is a, huge motivator in decision making.

And I'm sure we've all made decisions that we weren't proud of because we were afraid of something or we're embarrassed or shameful and are those capacitated decisions? [01:01:00] And coming back to that sort of philosophical, what's a like legal capacity where I have the authority to make decisions versus what's like truly a free willed decision.

And I would argue there is no truly free will because we're bombarded by influences all day. Some of them we think are appropriate. Like, you know, hunger, poverty, let's say you make a decision because of poverty. Is that a capacitated decision or are you incapacitated through the pressures of not being able to afford things?

We tolerate those things, even if they might have dramatic impacts for your. Well, we say that's outside our domain, but like if we have a laboratory error or, value, sorry, that's, you know, abnormal or if we have a pathology, then all of a sudden we see disability as incapacity. And then the disability rights people will say, by virtue of just having a diagnosis of, schizophrenia or bipolar disorder, we're already stigmatized so much.

And then you insert this sort of cognitive model that de privileges our decision making in this process [01:02:00] and prioritizes people who may have high cognitive reserves and ability to sort of retroactively engineer a explanation for their decisions as opposed to somebody who might lack a high school education or may not be so sophisticated in sort of the medical biological knowledge that we wield.

So, disproportionately in the healthcare system. So, you know, thinking about it from that perspective, you might say, Hey, this is just more danger than harm. And to emphasize this point, I'll say this. I think Stanford put out a study that said, you know, poverty is in the top, I think five or four causes of death, morbidity and mortality in the United States.

And I bet you if you looked at capacity doesn't, incapacity doesn't even come in the top 20 reasons of, you know, morbidity and mortality. And so why are we putting so much disproportionate focus on this idea of capacity when there's many other things that we could try to leverage our collective efforts towards to treat?

And I [01:03:00] think it comes back to this sort of colonial understanding, which is intentionally or unintentionally, we have consolidated this sort of hegemony in medicine. And when there's a challenge to that through refusal or somebody picking a choice that we don't prioritize, then we leverage the full weight of our power to, or worse that decision.

That only happens in settings where we can do it. 'cause the minute you step outside the hospital, I cannot do that anymore. Even though that might either equally or if not more incapacitated or, you know, vice versa. It's something that we can only do in the ecosystem that we control. And so that for me, really destroys the validity of this construct.

That it's just in many ways, I'd say, in a sort of illusion of the power that we wield and that really what we should be focusing on is the heart of consent, which is to make sure it's voluntary, to make sure that it's with [01:04:00] disclosure and it's designed to protect the patient against the conscious or unconscious influence, of the healthcare system.

And that I think is gonna be more powerful for us moving forward. And we're working right now on, on a study. 'cause I think the assumption is that incapacity leads to dangerous situations. 

Mark Mullen: I don't think anybody's ever proven. In the 

Dr. Omar Mirza: sense that when you look at people who are capacitated versus incapacitated, do the outcomes actually change?

Do we have mortality or six month morbidity and mortality that prove that this process is really designed to protect patients? Or is this just an in invention of our own sort of privileging of the biological model? And we're working on a study right now to look at that to see do incapacitated patients versus incapacitated patients have different differing outcomes?

We don't, it's an assumption. 

Mark Mullen: Their life is gonna look a lot different if we connect them and send them to a nursing home versus allow 'em to go home. Also though, a, you know, obviously the primary team in a lot of these cases [01:05:00] has really strong considerations about them being able to be mobile at home, them being able to form their ADLs, et cetera.

So you would think that being somewhere where you could be helped with those things, I feel like common sense would indicate that you would have. Better outcomes in terms of morbidity and mortality. But I appreciate your point that we really don't know. And also if you sense somewhere, someone, somewhere that they don't wanna be, we don't, it's more chaos theory.

We don't know all the variables associated with that. And that's probably is definitely an interesting area for research. 

Dr. Omar Mirza: Absolutely. And, to speak to that point, you know, like we will remove people from their environments for this idea of safety, you know, that they can't function in the home, there's falls, et cetera.

But when people come to us with clear evidence of things that are impacting their safety, right, like homeless, 

Mark Mullen: we're 

Dr. Omar Mirza: like, 

Mark Mullen: wash my hands of that. I, that's outside my domain. There's nothing I can do about that. And so then what gives us the authority 

Dr. Omar Mirza: to decide that they're so unsafe at their home that we must intervene.

But [01:06:00] if they come to us and say, Hey, I'm homeless, I don't have food. And we see those people who are malingering or et cetera, we, treat them with such, you know, disd. When they're very obviously presenting with the reason that they're suffering or that they're, you know, struggling. And so for me there's a sort of great hypocrisy, not in how we individually see that, but as a system, how we see those things.

We see economic and sociopolitical things as just outsider domain that we just don't wanna touch 'cause it's not really healthcare. But then things that we can influence and wield power on. And we do so in some ways, very aggressively in a way that's inconsistent. And I, and maybe the sort of social justice warrior version of me or maybe the sort of anticolonial version of me will say that we have a great deal of power in, society and that if we're not leveraging it and wielding it to punch up and to protect our patients, then we're really just, contributing to the potential harms.

And that's where [01:07:00] I take a great deal of inspiration for moving past. The current model, which served us well when it came out, but no longer serves us in the same degree. 

Mark Mullen: Dr. Omar Mirza, thank you for coming on Psychiatry Bootcamp. Thank you for helping us to expand our minds a little bit.

Thank you for making us uncomfortable so that we can grow. And more than anything, I think your patients are honored to have you. You're a real advocate. You're really working hard, including volunteering for this 90 minute recording, just to make the world a better place for them, A more just place for them, a more respectful place for them.

And I really appreciate you spending the time with me today. 

Dr. Omar Mirza: Thank you. And, big fan of the podcast. I, when I saw the email, I wasn't able to geek out as much as I'd love to, but, I was thrilled. And so I'm, very honored and grateful to be here talking to you and being amongst some of the great speakers that, I've learned so much from.

Mark Mullen: Thank you so much for listening to this episode of Psychiatry Bootcamp. If you're enjoying the show, [01:08:00] I would love to know what you think. You can connect with us on TikTok or Instagram at Psych Bootcamp, or you can email me mark@psychiatrybootcamp.com. Visit psychiatry bootcamp.com to sign up for our newsletter, and you can connect with the rest of the Human Content Podcast family on Instagram and TikTok at Cuban Content Pods.

Thank you for everyone who left a review on Apple Podcast or Audible. Also was an audible for a rating on Spotify. That's the best way to support the show. I really appreciate those. I read all of those and I can't thank you enough for all of the ratings and reviews. You can find full videos of our podcast on YouTube at Psychiatry Bootcamp.

Thanks again for listening. I'm your host, Mark Mullen. Our executive producers are Aron Korney, Rob Goldman, Shanti Brook, and me Mark Mullen. Season four is produced by Matthew Braddock. The outline for this episode was drafted by the great and wonderful Samir Jane, one of my medical students. Our editor and engineer is Jason Portizo, and our theme music was generously donated by [01:09:00] Cave Radio.

You can find Cave Radio on Spotify. Other music was by Omer Ben-Zvi. To learn about our program, disclaimer and ethics policy, our submission verification, and licensing terms, and our HIPAA release terms, go to psychiatry bootcamp.com where you can also reach out to us with any questions or concerns.

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