When can nursing homes make decisions for 'incapacitated' residents? California court weighs in

Jul. 24--When "Gloria A." was admitted into a nursing home in late 2012, the 63-year-old truck driver was deemed "incapacitated" by a doctor. Months later, she attempted to leave the nursing home for a picnic and was told for the first time that she was deemed incapacitated and couldn't leave, according to a lawsuit filed by an advocacy group against the California Department of Public Health.

Between then and when she was first admitted, the nursing home had her take medication that is typically used to manage mental disorders and that can have life-threatening side effects, the lawsuit said.

A California appeals court considered her case on Monday when confronting the difficult questions of under what circumstances and how nursing homes can make medical decisions for residents deemed mentally incapacitated.

The lawsuit, brought by California Advocates for Nursing Homes Reform, challenged the state's Department of Public Health over a statute in the state health code that allows nursing home staff to decide for incapacitated residents about ongoing medical treatment. California Advocates claimed the statute violates the rights of incapacitated residents.

The California 1st District Court of Appeal ruled Monday that the statute in its current state does deprive incapacitated residents of critical rights and does not include enough checks on nursing home staff. The court specified new requirements that the state must add to the statute.

If either side appeals, then the case would be brought before the California Supreme Court. If neither side appeals, then the Department of Public Health will have to begin implementing the new requirements and legislators might need to amend the statute.

The suit was originally brought in Alameda Superior Court in 2013 by California Advocates. After the Superior Court ordered the state to add more requirements to the statute, both the state and California Advocates appealed. The state argued the existing statute was legally sound, while California Advocates maintained the reforms that the Superior Court ordered were not far-reaching enough.

The case then went to the appeals court, which Monday ordered more specific requirements to protect the rights of incapacitated residents.

The statute does not currently require nursing home staff to notify residents that a doctor has deemed them incapacitated, which the statute defines as incapable of understanding consequences of medical decisions and lacking a legal surrogate. It also does not require notifying incapacitated residents of the medical treatment they will receive.

Monday's decision ordered that written and oral notice must be given to residents, and that medical treatment can't proceed until residents are notified about their status as incapacitated and get a chance to oppose.

Tony Chicotel, an attorney with California Advocates, said this order will "reduce the risk of error" in decisions made about a resident's incapacitation.

The ruling also addressed how nursing homes would make decisions about an incapacitated resident's medical treatment. The statute currently requires decisions to be made by a team composed of a doctor, nurses and, "where practicable, a patient representative."

Monday's decision ordered that except in emergency situations, the team must include a patient representative, and that representative must be unaffiliated with the nursing home.

Karen Jones, a program coordinator with the San Luis Obispo long term care ombudsman office not involved in the lawsuit, said the change ordered by the court would help reduce conflicts of interest that can arise when nursing home staff make medical decisions for their residents.

"If [a resident] is incompetent and has challenging behaviors ... and instead of being polite, are verbal about their issues, they could be more prone to being overmedicated [by nursing home staff]," Jones said.

The appeals court ruling was not wholly in favor of California Advocates, which argued that the statute cannot be used by nursing homes to make decisions about the administration of powerful drugs used to manage mental disorders, as well as end of life decisions--such as referral to hospice care and do-not-resuscitate orders.

California Advocates argued that such medical decisions are too grave for nursing homes to make through the statute, but the appeals court decided that the statute can be applied in those situations, except for in the withdrawal of life support.

Chicotel said California Advocates is discussing the possibility of appealing to the state Supreme Court on the issues of drugs administration and end of life decisions.

When asked to comment, the Department of Public Health said that it "does not comment on ongoing legal or legislative actions."

If no appeal is filed, then the Department of Public Health would have to begin working with nursing homes to implement the new requirements. Chicotel said that "legislation is not mandatory for implementation but very likely needed."

The California Association of Health Facilities, a nonprofit organization that represents nursing homes across the state, said in a press release on Tuesday that it is "committed to work with the California Department of Public Health, member facilities and others stakeholders to meet the new conditions established by the court."

Chicotel said he hopes to see Monday's decision spur more conversation about the treatment of people at large who are deemed incapacitated, not only nursing home residents.

"Any place where patients are getting health care, how is it getting authorized?" he asked. "The reasoning of the court applies beyond the scope of nursing homes."

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