Document Decision Making Capacity (DMC)

by Frank Randolph, MD

Many nursing home admission forms ask physicians to address patient decisional capacity. I am unsure how this came to be a part of the admissions forms. I could not find references to it in California’s Title 22 regulations. Title 22 (§ 72303) states that physician services shall include but are not limited to: “Patient evaluation including a written report of a physical examination within 5 days prior to admission or within 72 hours following admission; an evaluation of the patient and review of orders for care and treatment on change of attending physicians; patient diagnoses; advice, treatment and determination of appropriate level of care needed for each patient; written and signed orders for diet, care, diagnostic tests and treatment of patients by others; health record progress notes and other appropriate entries in the patient's health records; provision for alternate physician coverage in the event the attending physician is not available.”  Also, federal regulations (§483.40 Physician Services) make no mention of capacity assessment.

Perhaps the determination requirement arose in the California Health Decisions law (Probate code 4732) which requires that “a primary physician who makes or is informed of a determination that a patient lacks or has recovered capacity, or that another condition exists affecting an individual health care instruction or the authority of an agent, conservators of the person, or surrogate, shall promptly record the determination in the patient’s health care record, and communicate the determination  to the patient, if possible, and to a person then authorized to make health care decisions for the patient.”

In a JAGS article in 1990 (Assessing Treatment Decision-Making Capacity in Elderly Nursing Home Residents, Fitten et al observed that clinicians usually employ indirect means of cognitive and physical function in older adults to assess medical decision-making capacity (DMC). Using a Guttman-like assessment of capacity to assess DMC in 51 VA nursing home residents, they found that only 33% demonstrated intact DMC by this method, whereas 77% were felt by their primary physician as capable of giving consent. They concluded that cognitive screening tests underestimated the prevalence of impaired DMC in this population, and recommended that DMC be directly assessed, as opposed to indirectly.   Moye and Marson published Assessment of Decision-Making Capacity in Older Adults: An Emerging Area of Practice and Research inThe Journals of Gerontology: Series B, Volume 62, Issue 1, 1 January 2007, p3–11, outlining the emergence of capacity assessment as a distinct field of study, and reviewed research on medical and financial decisional capacity. They noted that, although decisions about capacity requiring guardianship or conservatorship were ultimately legal judgments enforced by the power of the state, most determinations of diminished capacity are probably made outside of the courtroom, by clinicians, attorneys, adult protective service workers, and other professional groups working with the elderly population. When a previously appointed surrogate (such as a health care proxy) can be found, the authority of the surrogate springs into effect based upon clinical finding of diminished capacity without judicial review. Further, in practice, many situations of diminished capacity are managed without any formal determination of incapacity or appointment of a surrogate.

Health and Safety Code 1418.9 defines a situation wherein physicians must assess DMC, in addressing informed consent for treatment decision in skilled nursing or intermediate care facilities. “Wherein the physician is unable to obtain informed consent because the physician determines that the resident lacks capacity to make decisions concerning his or her health care and that there is no person with legal authority to make those decisions.” The statute further defines lack of capacity as the inability of a resident to make a decision regarding his or her health care and the inability to understand the nature and consequences of the proposed medical intervention, including its risks and benefits, or to express a preference regarding the intervention. The law sets the stage for DMC determination by the physician, “who shall interview the patient, review the patient’s medical records, and consult with skilled nursing or intermediate care facility staff, as appropriate, and family members and friends of the resident, if any have been identified.”

My conclusion is that there is a basis in California law for making a DMC determination. It is somewhat concerning that skills at DMC determination may be wanting in our profession. I strongly recommend that we target DMC determination as a necessary competency for physicians and nurse practitioners caring for older patients, and that CALTCM develop and offer educational presentations likely to improve knowledge and skills regarding DMC determination.