California Appeals Court Orders Changes to Statute Allowing Nursing Homes to Make Decisions for “Incapacitated” Residents
A recent case was heard by a California appeals court involving a lawsuit filed against the California Department of Public Health concerning a state statute allowing nursing homes to make medical treatment decisions for “incapacitated residents.”
The lawsuit was filed by the California Advocates organization on behalf of a 63-year-old woman admitted to a nursing home in late 2012, whose doctor had deemed her “incapacitated.” Several months later, when the woman tried to leave the facility to go on a picnic, she was informed for the first time that she was considered “incapacitated” and could not leave the facility.
The appeals court considered two areas: 1) What are the circumstances that allow a nursing home to make decisions regarding medical treatment for residents deemed to be mentally incapacitated? 2) Are there sufficient checks in place to protect the resident’s rights? The current statute defines incapacitated as being “incapable of understanding consequences of medical decisions and lacking a legal surrogate.” It does not require the facility to notify a resident that a doctor has judged them to be incapacitated or to notify an incapacitated resident of the medical treatment they will receive.
The court ordered more specific requirements be put into place to protect the rights of incapacitated residents. It also required that residents receive written and oral notice about their incapacitated status. Now, until a resident is notified and has a chance to oppose a decision, medical treatment cannot proceed.
The court’s decision also addressed the process a nursing home uses to make medical treatment decisions for an incapacitated resident. The current statute requires a team that includes a doctor, nurses, and “where practicable, a patient representative.” The court ordered that a patient representative—who is not affiliated with the facility—be included in that team, except in emergency situations.
The California Advocates argued that the statute should not be used to make decisions about the use of powerful drugs to manage mental disorders or for making end of life decisions, i.e., hospice care and do-not-resuscitate orders. In this area, the decision upheld the statute except for withdrawal of life support.
Compliance Perspective
Failure to ensure that residents’ rights are observed for residents who have been judged incompetent according to a state’s statutes or a court determination, or that these individuals have resident representatives who are not affiliated with the facility participating in their medical treatment decisions, may be considered a violation of state and federal regulations.
Discussion Points:
- Review policies and procedures regarding the protocols for making medical treatment decisions for a resident who has been deemed incompetent/incapacitated according to state law to ensure the facility is not violating residents’ rights.
- Train staff regarding the facility’s policies and procedures to ensure residents’ rights are protected during medical treatment decision making for residents deemed incompetent or incapacitated.
- Periodically audit to determine if incapacitated residents have a resident representative who is not affiliated with the facility and who is included in the process of making medical treatment decisions.
