What happens when a nursing home resident cannot make medical decisions for herself but she has no family members to rely upon? Last summer, we told you about a case that went before the Alameda County Superior Court, which put some of the power back in the hands of nursing home residents. A recent article in the California Health Report emphasized the far-reaching implications of this decision, and the ways in which there are both potential pros and cons for nursing home residents.
CANHR’s Case Against the California Department of Public Health (CDPH)
Before we discuss some of the recent commentary on the court decision from June of 2015, it is important to recall the key issues at stake in this case. According to the article, the advocacy group California Advocates for Nursing Home Reform (CANHR) filed a lawsuit against the CDPH, arguing against the constitutionality of “a California statute allowing nursing homes to make medical decisions for residents incapable of doing that for themselves and who have no family or legal representatives.”
Ultimately, Judge Evelio Grillo of the Alameda County Superior Court ruled that the statute is in fact unconstitutional, and that “nursing homes must notify unrepresented residents when they are being deemed incompetent.” In addition, the court’s ruling emphasized that nursing homes also “may not administer newly-prescribed antipsychotic drugs or make end-of-life decisions for these residents without obtaining court authorization or a court appointed public guardian or conservator.” In other words, nursing homes are not allowed to simply make decisions for incompetent nursing home patients and then act immediately on those decisions.
Advocates with CANHR filed the lawsuit with the belief that nursing home residents in California deserve to have rights, regardless of whether they are over a certain age and incapable of making medical decisions for themselves. Morton Cohen, a professor of law at Golden Gate State University, agreed. For decades, the professor has been advocating for nursing home patients’ rights in our state and elsewhere. As the article points out, Cohen has a long history of “advocating for the rights of people in psychiatric facilities, nursing homes, and prisons,” and he won a major case concerning the use of antipsychotic drugs back in 1987.
Potential Downsides of the Decision
While most of us are probably reading a recap of the June case and thinking that nursing home patients should in fact have the kinds of protections that have only been newly afforded to them, some commentators continue to emphasize that the decision could have deleterious effects in certain cases. For example, an advocate for long-term care providers contends that the changes to the law could make it more difficult for nursing home patients who have been deemed incompetent to get the care they need, particularly if they need it quickly.
For example, he argues, this type of nursing home resident—someone who has been deemed incompetent but does not have a family member or other representative—may end up in an acute care hospital rather than a nursing home for treatment. In addition, that advocate cited in the article suggests that the new ruling may encourage nursing homes to turn down patients who have been deemed incompetent but do not have personal representatives. To be sure, “both sides agree it will be difficult to get underfunded public guardians or conservators to represent these residents.”
Commentators for CANHR and other elder rights advocates do not believe that such issues will become serious problems in California. And rights to due process, in the minds of CANHR advocates and Judge Grillo, outweigh the potential pitfalls.
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