Clinicians in California nursing facilities must comment on the decisional capacity of patients on admission,  in terms of  whether the patient’s ability to make health decisions is absent, impaired, fluctuating, or intact. Studies of persons with dementia or cognitive impairment have shown an increase in decisional impairment, compared to cognitively intact populations. High proportions of decisional impairment have been documented in studies of residents in nursing homes, ranging from 44 to 67%.  

Patients have right to make their own health care decisions, including consenting or refusing medical treatment, even if life-sustaining.  All adults are assumed to have decisional capacity unless there is evidence to the contrary (Probate Codes Section 810, 4657.)   California law defines “capacity” as a person’s ability to understand the nature and consequences of a decision, and to make and communicate a decision, and includes in the case of proposed health care, that ability to understand its significant benefits, risks, and alternatives (Probate Code-4609.) Only a court can declare a person incompetent and remove the power to make decisions about personal or business matters.  Such court actions typically require substantial documentation, time, and expense.

Traditional tests of cognitive function have limited utility in determining decisional capacity.  The Mini-Mental State Examination (30/30 points)  is the most commonly used by clinicians. It lacks accuracy in the middle range but it is felt to be useful when the score less than 10 or greater than 20. There is  no agreed-upon ordinal cut-off score in any test.  Test-taking ability, language, medical literacy, and cultural beliefs introduce bias into the evaluation. Experts advise inquiry into the specific issues in question, to assess the patient’s judgment skills, and to include the patient’s response in the context of the evaluation.  Conclusions should be decision-specific, incorporating when possible, the specific scenarios discussed with the patient. Directed clinical interview attempts to determine whether the patient can respond knowingly and intelligently to queries about medical treatment, participate in that treatment decision by means of a rational thought process, understand the nature and seriousness of his/her condition, the nature of the medical treatment recommended, the probable degree and duration of any benefits/risks, the consequences of lack of treatment, and the nature, risks, and benefits of any reasonable alternatives.

Approaches that have been proposed to make evaluation for decisional capacity more accurate include use of formal instruments to standardize evaluation (MacArthur Competence Assessment Tool; Aid to Capacity Evaluation-ACE.)  Complicated assessments of decisional capacity may improve the accuracy of capacity determination, but few LTC clinicians have the time to either develop the expertise or render accurate determinations, choosing in most case to render their best subjective impression of decisional capacity. There is no evidence that judicial determinations of incapacity are superior to the opinion of an attending physician. In fact, California courts rely greatly upon a the state capacity declaration, a form which fast-tracks conservatorship based upon a physician’s subjective opinion. Documentation by the clinician of cognitive evaluation is a required component, but does not correlate closely to the ultimate conclusion. 

Determining decisional capacity for some patients is a slam dunk. Patients who are severely cognitively impaired or patients who have intact cognition and lack psychiatric conditions are easy decisions.  Patients in gray areas pose a challenge. If there is a surrogate decision-maker designated by the patient, we can forgo additional capacity consternation and simply address health care decisions with the surrogate.  For persons who lack medical decisional capacity and also lack an identified surrogate decision-maker, California law allows skilled nursing facilities and intermediate care facilities to utilize an interdisciplinary team approach in obtaining consent (Health and Safety Code 1418.8), avoiding the requirement of a court order prior to administering a medical intervention which requires informed consent. Recently, this law has come under scrutiny, with the questionable argument that the medical determination is insufficient, and that only a judicial determination will suffice. A secondary criticism is that the law is being utilized to authorize the provision of antipsychotic drugs, restraints and end-of-life care decision-making, which may or may not have been the intent of the law.

With these controversies, LTC professionals who want the protections of the law should strictly adhere to its requirements. These include careful documentation of the interdisciplinary process to include “review of the physician’s assessment of the patient condition, a reason for the proposed use of the medical intervention, a discussion of the desires of the patient, where known, the type of medical intervention to be used in the resident’s care, including its probable frequency and duration, the probable impact on the resident’s condition with and without the use of the intervention, and reasonable alternative medical interventions considered or utilized and reasons for their discontinuation or inappropriateness.”

The law also asks that the interdisciplinary team periodically evaluate the use of the prescribed medical intervention at least quarterly or upon significant change in the resident's medical condition. This is difficult, and expensive, but seems warranted to protect the facility and the attending physician from liability, as well as to protect the resident’s best interests. The law stops short of requiring a resident advocate as part of the interdisciplinary team, but directs that such a person be included whenever practicable.  It seems prudent for any IDT serving as a decision-maker for a resident to include a resident advocate in this process—whether that be an ombudsman, a clergy member, or a family member or friend of the resident who may be able to help with substituted judgment, but does not want to take the full responsibility of signing on behalf of the resident.

I am not entirely clear myself as to whether the provision of antipsychotic drugs, use of restraints, or care withdrawal at end of life is included in the law. My efforts to engage the local Public Guardian in assisting with such decisions for unbefriended residents has been unsuccessful.  This underlines the need to clarify or revise the law or to engage the assistance of regional LTC Ethics Committees to bolster our resolve. It is hoped that the current legal case, Chicotel v. Chapman, will help move this discussion along—since in the years to come, we will see many more incapacitated, unbefriended patients in long-term care.  We expect to have some direction in this regard by sometime this summer, although it is anticipated that whatever the decision, it will likely be appealed.

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