Key questions

• • How can ARBD and alcohol dependence affect decision-making ability?

• • How should you approach assessment of capacity to consent to care and residence in this case?

• • What guidance do clinical studies, legal cases and the ethics literature provide?

Characteristics of ARBD

Alcohol-related brain damage is an umbrella term for chronic neuropsychological disorders caused by direct and indirect effects of alcohol on the brain,^{Reference Rao and Topiwala4} and usually understood to include both alcohol-related dementia and Wernicke–Korsakoff syndrome.^{Reference Jauhar and Smith5} Proposed pathophysiological mechanisms include the direct neurotoxicity of ethanol and its metabolite acetaldehyde, thiamine deficiency and vulnerability to hepatic encephalopathy, traumatic brain injury and cardiovascular risks.^{Reference Rao and Topiwala4,Reference Rehm, Hasan, Black, Shield and Schwarzinger6} Structural and functional brain changes in ARBD affect the frontal lobes (prefrontal cortex), limbic system (hippocampus, hypothalamus and mamillary bodies) and cerebellum.^{Reference Rao and Topiwala4,Reference Bernardin, Maheut-Bosser and Paille7} Typical cognitive deficits include executive dysfunction, loss of episodic memory (prominent anterograde amnesia in Wernicke–Korsakoff syndrome) and visuospatial deficits, with relative sparing of language in comparison with Alzheimer's disease.^{Reference Ridley, Draper and Withall8} In contrast to other dementias, people with alcohol-related dementia are more likely to be younger, male, socially isolated and have significant comorbidity.^{Reference Ridley, Draper and Withall8} There is limited evidence for pharmacological treatment of ARBD^{Reference Ridley, Draper and Withall8–Reference Rustembegović, Kundurović, Sapcanin and Sofic10} but acute treatment of suspected Wernicke's encephalopathy with high-dose parental thiamine is advised to prevent chronic deficits.^{Reference Rao and Topiwala4} Stability or partial reversibility of clinical deficits and neuroradiological changes can be achieved with abstinence from alcohol.^{Reference Rao and Topiwala4,Reference Ridley, Draper and Withall8} However, people with ARBD are less likely to move to abstinence than peers with alcohol dependence and intact cognition.^{Reference Rao11}

Alcohol and decision-making

The ‘competing neural systems account’ models alcohol dependence (and other addictions) as an imbalance between impulsive and reflective cognitive systems, leading to dysfunctional decision-making in relation to alcohol use. The overactive impulsive system involves strong associative memory between alcohol-related cues and ‘automatic’ behaviour (mobilising the dopaminergic system of the amygdala–striatal circuit), while the underactive reflective system involves executive functions (various regions of the frontal lobe and striatum) that become less able to regulate the impulsive system to achieve adapted behaviour.^{Reference Bernardin, Maheut-Bosser and Paille7,Reference Bechara, Noel, Crone, Wiers and Stacy12–Reference Bickel, Miller, Yi, Kowal, Lindquist and Pitcock14} It has been suggested that greater impairment of executive functions (working memory and inhibition capacity) in ARBD increasingly predisposes to drinking behaviour dictated by the impulsive system.^{Reference Bernardin, Maheut-Bosser and Paille7} Beyond decision-making about drinking, studies evidence wider decision-making impairments in individuals with alcohol and other addictions. These include exaggerated delay discounting: compared with controls, dependent individuals significantly prefer less substantial, more immediate rewards over more substantial, delayed rewards.^{Reference Bickel, Miller, Yi, Kowal, Lindquist and Pitcock14} Risk valuation is also impaired: individuals with alcohol dependence tend to make riskier decisions^{Reference Brevers, Bechara, Cleeremans, Kornreich, Verbanck and Noël15–Reference Kovács, Richman, Janka, Maraz and Andó18} as tested by the Iowa Gambling Task.^{Reference Bechara, Damasio, Damasio and Anderson19} Even those now abstinent from alcohol continue to perform more poorly than controls,^{Reference Körner, Schmidt and Soyka16} suggesting persistent decision-making deficits.

Clinical studies of decision-making capacity

Little is known about how these deficits correlate with real-world decision-making and decisional capacity. To date, no study has systematically investigated capacity for personal care decisions in individuals with ARBD or alcohol dependence. Findings from other patient groups and other decisional capacities may be relevant. A descriptive study found that liaison psychiatrists often determine patients with substance use disorders to lack capacity for healthcare decisions.^{Reference Boettger, Bergman, Jenewein and Boettger20} Several studies have found people with Alzheimer's disease more likely to lack capacity for various decisions than unaffected peers, although with significant heterogeneity in those with mild to moderate cognitive impairment. Studies of individuals with traumatic brain injury showed that impaired capacity for treatment and financial decisions is prevalent and strongly correlated with severity of the injury.^{Reference Triebel, Martin, Novack, Dreer, Turner and Pritchard21,Reference Dreer, DeVivo, Novack and Marson22} In both Alzheimer's and traumatic brain injury groups, memory and executive function deficits were predictive of decisional impairment.^{Reference Kim, Karlawish and Caine23–Reference Dreer, DeVivo, Novack, Krzywanski and Marson26} A qualitative study has suggested that failure to ‘use or weigh’ in brain-injured patients with frontal lobe syndrome may relate to difficulty integrating an abstract awareness of their deficits into real-world decision-making.^{Reference Owen, Freyenhagen, Martin and David27} In an interview study, liaison psychiatrists recommended that clinicians assessing capacity in patients with ARBD should carry out repeat assessments, incorporating evidence of the patient's real-world decision-making.^{Reference Kane, Ruck Keene, Owen and Kim1}

Relevant case-law

Although studies of incapacity in different clinical groups can be helpful in guiding one's approach to assessment,²⁸ only a functional capacity assessment can determine an individual's capacity to take a specific decision at a specific time. The highest arbiter of capacity assessments under the MCA is the Court of Protection (CoP), which offers a useful data-set of published judicial decisions.^{Reference Ruck Keene, Kane, Kim and Owen29} To date, only two published judgments have expressly considered capacity in individuals with ARBD (Table 1). In both cases (perhaps surprisingly), the individual was found to have capacity for care and residence decisions. Clinical factors discussed included the individual's memory and planning abilities, insight into his (in)ability to control his drinking, ability to mask his cognitive deficits, and evidence of reversal of cognitive impairment with abstinence. Legal factors such as time and decision specificity were discussed; in one case, the judge cautioned that evidence about the individual's capacity to make decisions about alcohol was only relevant when tied directly to the ‘operational’ decision (capacity for care/residence).

Table 1

Published Court of Protection judgments on capacity in alcohol-related brain damage (ARBD)

Interestingly, neither judgment gave much detail on the individual's cognitive impairment. This contrasts with other CoP judgments examining capacity in individuals with mixed dementias caused in part by alcohol use. For example, in D v R & S [2010] EWCOP 2405, the case of a man with dementia ‘most probably caused by alcohol use and cerebrovascular disease’, there was extensive reference to structured psychological measurement, including the Mini Mental State Examination (MMSE) and specific frontal lobe tests.^{Reference McWilliams, Fleming, David and Owen30} The judge concluded that the individual's memory and frontal deficits caused an inability to understand and weigh relevant information.

In London Borough of Tower Hamlets v PB (Table 1) the judge expressed concern lest ‘most addicts’ be considered incapacitous. More broadly, two other CoP judgments considered capacity in the context of alcohol dependence and so are worth mentioning. In An NHS Foundation Trust v Ms X [2014] EWCOP 35, the experts contrasted a young woman's capacity to decide about alcohol use with her lack of capacity regarding treatment of her anorexia:^{Reference Craigie and Davies31} ‘ … she appeared to be making choices about when to drink, when to drink more, and when to drink less’. In RB v Brighton and Hove CC [2014] EWCA Civ 561, the court distinguished between a man's decision-making ability before and after a traumatic brain injury affecting his frontal lobe; he had a prior history of alcohol dependence, criminality and homelessness. Expert evidence argued that an ‘ordinary alcoholic [ … ] does not have the frontal lobe damage which means that a person such as RB works on impulse [ … ] Alcoholics can weigh up their decisions’.

Ethical debates on capacity in alcohol dependence

Ethical debates on capacity in substance use disorders frequently focus on whether dependent individuals have capacity to decide about use of their addictive agent and treatment for their addiction. Responding to the practice of prescribing heroin to people with heroin use disorder in research trials, Charland argues that people with addiction – by nature of their disease – have compromised ability to ‘weigh risks and benefits’ associated with heroin use and thus are incompetent to consent to its prescription. Invoking studies of altered neurocircuitry in people with addiction, he describes the transformative power of addiction-related ‘compulsion’. Under duress of such compulsion, he argues, people with addiction, regardless of their behavioural state, approach decisions with a fundamentally changed set of ‘pathological values’ that compromises capacity.^{Reference Charland, Poland and Graham32} Craigie & Davies compare ‘impaired control’ in alcohol dependence with that in anorexia nervosa, pointing out that anorexia is often cited to impair capacity regarding treatment.^{Reference Craigie and Davies31} In contrast, Foddy & Savulescu reject the pathologised ‘disease view’ of addictive behaviour as a ‘fiction of affliction’. They argue that people with addictions remain fully autonomous, as addictive desires are essentially normal (if especially strong) desires towards pleasure, and only ‘irresistible’ forces render choices non-autonomous.^{Reference Foddy and Savulescu33} Importantly, these ethical arguments do not, without additional reasoning, apply to the question of whether addiction impairs capacity to make other decisions, such as care or residence. However, where a care plan or residence environment restricts or forbids access to alcohol, they may become relevant. Further, a recent paper argues that executive dysfunction in people with opioid use disorder who refuse medical care after overdose may cause these individuals to be ‘unmoved’ by the risks of leaving hospital and may impair their capacity for this decision.^{Reference Marshall, Derse, Weiner and Joseph34}

Practical management

1. (1) Delay the capacity assessment until Mr X's acute medical problems are treated. Ensure that an adequate dose and duration of chlordiazepoxide has been given to treat alcohol withdrawal fully. Assess for features of Wernicke's encephalopathy (note that the full triad of oculomotor disturbance, ataxia and altered mental state is present in only 23% of cases) and if it is suspected, continue treatment with high-dose parenteral thiamine until no further clinical improvement is noted.^{Reference Galvin, Bråthen, Ivashynka, Hillbom, Tanasescu and Leone42} Other causes of delirium, such as hepatic encephalopathy, brain injury or infection, should be identified and treated appropriately. Screen for and treat comorbid mental health conditions, including mood or psychotic disorders.

2. (2) Carry out a thorough cognitive assessment to help clarify the clinical picture and guide your approach to the capacity assessment. The Montreal Cognitive Assessment (MoCA) and Addenbrooke's Cognitive Examination III (ACE-III) are superior to the MMSE as they have a higher sensitivity for frontal impairment. Consider a bedside frontal lobe battery or referral to neuropsychology for more detailed testing of executive function. Be mindful that relatively preserved language skills may present a superficial but false picture of intact cognition.

3. (3) Gather collateral information and build up a longitudinal picture of Mr X's day-to-day functioning at home and on the ward. Involve multidisciplinary colleagues, including occupational therapist assessments, social care reports and nursing observations. This is all ‘relevant information’ that should be put to Mr X at interview.

4. (4) Consider the specific capacity decision at hand. Guidance is available on relevant information that must be provided in assessments of capacity to consent to care and residence.⁴³ This includes the areas Mr X needs support with, what would happen without support, and the sort of care he would receive in a particular placement (e.g. whether alcohol would be restricted).

5. (5) Explore Mr X's own beliefs and values and how he might best be engaged and supported in his decision-making.^{Reference Kane, Ruck Keene, Owen and Kim1} Does he have family, friends or a trusted key worker who might help him to take information on board? Would he consider visiting a care home to get a concrete sense of what life might be like there?

6. (6) Assess Mr X's capacity to make the decision using the MCA criteria, namely his ability to understand, retain and use or weigh relevant information, and to communicate his decision.⁴⁴ Can he grasp the MDT's concerns about his cognition and care needs? Can he retain information about relevant past events for sufficient time to make a decision? Can he appreciate potential risks and weigh these in the balance? Rather than just ‘talk the talk’, can he use information at the time the decision needs to be made?⁴⁵

7. (7) Be mindful of the potential for reversibility of cognitive impairment and the need to schedule repeat capacity assessment(s) for Mr X after an appropriate interval.

8. (8) Finally, although not the focus of this article, it is important to remember that even if Mr X lacks capacity regarding care decisions, the question of his best interests requires separate consideration under the MCA.