Decisionmaking in Nursing Homes for Incompetent Residents

According to a recent article from Kaiser Health News, until recently, a California law permitted nursing homes to make decisions—include about end-of-life care—for nursing home residents who have been declared incompetent. However, a state court recently held that the law, which was enacted more than twenty years ago, is unconstitutional.7750519890_1720d30f09

Nursing Homes Cannot Violate Patients’ Rights

The law remained in effect until Alameda County Superior Court Judge Evelio M. Grillo ruled that the law is unconstitutional in a decision that came down at the end of last month. As the judge explained, “the law violates patients’ due process rights because it doesn’t require nursing homes to notify patients they have been deemed incapacitated or to give them the chance to object.” While Grillo indicated that he knows the decision “is likely to cause problems” for regular nursing home operations, it’s more important to put nursing home patients’ rights above practical logistics.

Initially, legislators saw the law as a tool to allow nursing facilities to “give medical treatment to their incapacitated residents without having to wait up to six months for state approval.” Yet elder rights advocates have been pushing to move away from the tenets of that law for quite some time. To be sure, the California Advocates for Nursing Home Reform (CANHR) filed a lawsuit against the California Department of Public Health in 2013 alleging that “nursing homes used the law to administer anti-psychotic drugs, place residents in physical restraints, and deny patients life-sustaining treatment.” In other words, advocates have voiced serious concerns about whether the law is being used as it was intended.

Patients need to have input in end-of-life decisions, in particular, Judge Grillo’s ruling emphasized. In making his decision, the judge cited a 2013 case in which a nursing home resident who had been deemed mentally incapacitated was taken off life-sustaining treatment without his input. He died shortly thereafter.

Acknowledging Rights, Regardless of Capacity

Citing the recently overturned law, backers of the CANHR underscored that, with Grillo’s ruling, “residents are finally going to have their rights acknowledged and honored.” Indeed, as one CANHR advocate clarified, “what nursing homes used to do was routinely make decisions big and small for their residents without really any regard to due process.” The Alameda decision will hopefully change that. And advocates hope that Grillo’s ruling will also make nursing home residents without representatives more of a priority for the California Department of Public Health.

The ruling may pose difficulties in certain nursing home situations, however. As one commentator pointed out, we need to think about scenarios in which nursing home residents lack mental capacity but don’t have representatives, and they object to certain treatment. How are facilities supposed to handle such a situation? And while allowing patients who lack capacity to object to antipsychotic medication may be useful in facilities alleged to be overmedicating, what if a patient who “truly needs” an antipsychotic drug objects to taking it? Such a scenario could pose safety issues to staff and other residents.

While Judge Grillo did note the possibility of certain difficulties in nursing homes given his recent ruling, he nonetheless emphasized that “informing patients and allowing them to object is not likely to result in any significant burdens on nursing homes.”

Contact a San Diego Elder Abuse Lawyer

Nursing home abuse and neglect are serious problems at California nursing homes and assisted-living facilities. In many cases, signs of neglect aren’t always strikingly obvious. If you have concerns about whether your elderly loved one’s rights have been violated in a nursing home, it’s important to discuss your case with an experienced San Diego nursing home abuse attorney. Contact the Walton Law Firm today to learn more about our services.

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