Berge & Berge, LLP Blog

Thursday, September 22, 2016

Nursing Care Bill Seeks Changes in Rights of Seniors

How much control do elderly patients have over their medical care when incapacitated in a nursing home?

Proposed legislation in California has elder care advocates concerned—and illustrates the need for seniors to make sure they are legally protected in advance of a medical problem.

Legislation Would Give Nursing Homes New Powers to Make Decisions for Elderly Patients

The bill, SB 503, covers the procedures for treating “unrepresented” patients at nursing homes. These are patients who are unresponsive or unable to give "informed consent" to treatment. A previous law dealing with this situation was found to be unconstitutional. The new proposal, while seeking to correct procedural flaws, could allow doctors and nursing homes to make important choices for patients, possibly against their will.

Critics Allege Overreach That Could Lead to Elder Abuse

Opponents of the bill say that it is as unconstitutional as its predecessor. Among their criticisms:

• It does not allow seniors in nursing homes to decline treatment. It could allow patients to be restrained and forced to take anti-psychotic medications for purposes not approved by the FDA.

• While treatments must be approved by an "independent" physician, and while patients are assigned an "advocate," both are hired by the nursing home. An advocate may not even be required for some end-of-life decisions. 

• The bill puts too large a burden on patients in no condition to assert their rights. Rather than forcing doctors to file suit to override a patient's wishes, it forces elderly, bed-ridden patients to file suit to stop unwanted treatments.

A Frightening Hypothetical

One scenario, circulated by critics of the legislation, posits this chain of events: You are elderly, and you fall, injuring your leg. You are taken to a hospital, where you develop an infection and become mildly delirious. The hospital gives you sleeping pills and sedatives to keep you in bed to protect your injured leg.

You are then sent to a nursing home for rehabilitation, where a nursing home physician, who never saw you before the fall, deems you incapable of making your own decisions. He keeps you sedated and decides that your leg should be amputated. To save your leg, you would need to file a lawsuit. Yet you are in no condition to find a lawyer, even if the nursing home would let you.

Steps Seniors Can Take To Protect Themselves

Whether or not the bill passes, it is a reminder of the importance of making sure you never become an "unrepresented" patient, at the mercy of strangers. Some preparations to consider include:

A "health care proxy." This document appoints a specific person—often a relative or friend—to act on your behalf if you cannot communicate. You can give your proxy broad or limited decision-making powers.

A "living will" (or "advance medical directive"). This is a set of instructions for the type of medical care you would like to receive if incapacitated. It spells out your wishes with respect to specific treatments—resuscitation, artificial nutrition, hydration, and others.

Copies of these documents would be placed in your medical files, and health care providers would be bound by them.

These are two possible approaches. An experienced eldercare attorney can advise you on the best legal and practical strategies to make sure you never find yourself subject to a law like the one proposed.

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