What must all competent professionals know about mild cognitive impairment?
Recent research indicates about one in three people between the ages of 50 and 80 are likely to be affected by mild cognitive impairment (“MCI“). For professionals and businesses these are patients, customers or clients with constrained autonomy, people with special disadvantage recognised by Australian and international law.
In Australia’s aging population the prevalence of MCI is increasing. So too is the frequency of clients with constrained autonomy or competency to give instructions to professional service providers. These circumstances present increasing risk to both clients and their professional advisors.
In recognition of the increasing risk of MCI in an ageing population, a pre-requisite for a competent provider of professional service is to know the capacity and ability of a client before engaging with the client for a particular transaction or other purpose.
In practice professionals need to consider the capacity and capability of a client at the start of a client relationship. They need to #CareAboutCognition.
This needs at least basic knowledge on the option of implementing a supported decision making methodology when dealing with clients whose autonomy of decision making is in doubt. Substitute decision making documents, such as powers of attorney and guardianship, may then be considered when no satisfactory measures of support for a person’s decision making ability are available.
For lawyers, for example, these practical requirements must be concurrent considerations when dealing with the estate administration, wealth conservation and succession objectives of clients.
For all professionals:
- A first step is to learn how to interview using open questions, to evaluate a client’s decision making ability. Lawyers and other professionals normally assume the capacity of a client. This can be tested by being alert to each client’s ability to engage sufficiently with briefings, identify any lack of proactivity, knowledge or insight about their situation relevant to a desired or anticipated transaction.
- Posing well-framed questions to clients is critical. The reply of a client can guide what to do next. An example of a well-framed question is, “Would you be surprised that I think someone could try and attack or unwind the decision you are asking me to implement for you?”
- Multidiscipliniary perspectives of medical and allied health practitioners, accountants and financial planners provide valuable insight into a client’s decision making ability.
MCI legal risk to all professionals
Recognising whether or not a lawyer or other professional is dealing with an autonomous decision maker requires awareness informed by neuropsychology, governance and estates practice. It should be a professional responsibility. Failing to identify when a client is experiencing cognitive impairment can be a professional responsibility risk. For a lawyer such a failure is a potential breach of professional conduct rules.
For providers of professional services dealing with clients with impaired cognition should become a competency within their professional practice, not just an obligation for legal compliance purposes. Australian Consumer Law recognises special disadvantage, giving legal impetus to prioritise the needs of cognitively impaired clients.
A client may not be able to appreciate and action a professional’s advice. This can trigger a complaint about insufficient or negligent advice. The risk for a client with impaired cognitive ability may be that he or she is not be able to effectively resist the influence of others. This may unjustly benefit a third party and unreasonably damage the client.
With Australia a signatory to the UN Convention on the Rights of Persons with Disabilities, it is crucial that professionals are committed to respecting the will and preference of people experiencing cognitive impairment is crucial.
Recommended training program
So it is clear that as a starting point a professional needs some degree of ability to recognise the attributes of an autonomous decision maker informed by recent research. This is the focus of training developed by Autonomy First with Wilson Learning. The program involves a one day course titled Decision Making Ability: Identifying, Understanding & Evidencing.
Development of the course arose from recognition of an increasing need and that screening tools such as the Mini Mental State Exam are insufficient. The training provides insights into behavioural assessment as part of the client case, project or matter onboarding and any appropriate subsequent case management process.
Why be client-centred?
For all these reasons providers of professional services need to work effectively in the ageing client sector and clients affected by MCI. Being in the client care and relationships business sustains trust and loyalty more than just being a vendor of silo technical expertise and transactions.
With awareness and training in MCI professionals can improve their client-centred approach and help mitigate intergenerational disadvantage and facilitate human dignity and the connection and sustainability of families and communities.