Legal-Ease: An Attorney’s Perspective: Stop Drugging Our Seniors

August 30, 2019 • Columnists, Legal-Ease

Judd Matsunaga, Esq.

This is a follow-up article to the “Getting Old Is Not for Sissies” article (Pacific Citizen, June 28-July 11, 2019) in which I said, “In order to protect your loved one from nursing home abuse and neglect, you need to know the law and your legal rights.” In this article, I want to discuss the illegal drugging of nursing home residents. You ask, “Is this really a problem?”

You bet. Here’s an example: On May 9, 2019, the State of California Department of Health issued a citation to the Palos Verdes Health Care Center in Lomita, Calif. Numerous “medication” codes and statutes had been violated. The department found that the improper use of anti-psychotics, anti-depressants, anti-anxiety and hypnotic drugs “placed residents at risk for experiencing adverse effects including, but not limited to, dizziness, drowsiness, constipation, movement disorders and death.”

Psychotropic drugs were given to residents to make “it easier to provide care,” ensure residents “follow instructions better” and make them “easier to talk to.” Some residents were given drugs to address their “sad face.” But here’s the part that makes “really bad” even worse — for these multiple violations affecting multiple residents, the facility was given one Class B citation and fined a paltry $2,000!!!

With nothing more than the proverbial “slap on the wrist,” it’s no wonder that nearly 60 percent of all California nursing home residents are given psychoactive drugs (Source: California Advocates of Nursing Home Reform, Toxic Medicine, 2012).

These dangerous drugs are not intended or approved for the resident’s medical condition. Rather, the drugs are often used to sedate and control patients, a terrible substitute for the individualized care all residents need and deserve.

That means YOU are the key to prevent abuse and make sure that your loved one is one of the 40 percent of nursing home residents who are not being given behavior-modifying drugs.

You need to: (1) remain active in the care of your loved one by visiting frequently; (2) build relationships with staff: (3) actively participate in the care planning process; (4) monitor care and act as an effective advocate.

Most importantly, know the law. Under the Reform Law, a behavior-modifying drug — called a “psychotropic” drug — can be used only to treat a specific condition. Behavior-modifying drugs cannot be used for discipline or the nursing home’s convenience. Like any other drug, a behavior-modifying drug can be administered only with the consent of the resident.

The patient is the only person who can provide consent to health-care treatment. Doctors or other health-care providers may not act as surrogates for their patients. The reason informed consent requirements exist in the first place is to prevent health-care providers from providing care based solely on their opinion.

The most basic rule about psychotropics is that the resident, or a decision-maker authorized to make decisions on his/her behalf, must consent to their use after being informed of the possible risks, benefits and alternatives.

“Alternatives”? Indeed — drugs should be a last resort, and a care planning meeting is the best place to discuss and consider nondrug-related options such as exercise, activities, pets, music and supervised trips outside the nursing home.

Before consenting to an anti-psychotic or any other behavior-modifying drug, residents and representatives should demand a full and careful discussion of nondrug-related strategies.

Rather than administering a psychotropic drug for a resident’s “agitation,” for example, the nursing home staff may want to speak to the resident differently or provide activities that make the resident more comfortable. Good dementia care requires listening to a resident and recognizing individual needs.

In deciding whether use of a particular drug is advisable, a good rule of thumb is to consider whether the drug’s use is intended to treat a diagnosed health problem or keep the resident more manageable.

If the benefit is to the resident, then use of the drug may be advisable. If, on the other hand, use of the drug would be largely for the nursing home’s benefit — for example, to keep the resident quiet and out of the way — then the drug likely should be refused.

All adult patients have the right to determine what shall be done with their own bodies and thus must consent to any proposed health-care treatment. This precept is at the heart of American notions of personal autonomy and has been reinforced by a century of court cases and statutory law. If consent is not obtained before treatment is administered, the health-care provider is guilty of battery.

For patients who lack capacity to make decisions about their care due to cognitive disability, informed consent must nonetheless be obtained from the resident’s representative, usually a family member or a close friend.

“Say Judd, who’s the resident’s representative?” Hopefully, YOU ARE!!!

While we are on the subject, do you have a power of attorney? My legal advice is any adult over 40 years of age should have a valid power of attorney because that’s when health issues generally start showing up. You will find there are two types of power of attorneys: (1) financial and (2) health care. It would be wise to have both.

In conclusion, if a psychotropic drug is being administered without permission, the resident or representative should demand immediately that the drug be discontinued. The demand should be in writing and emphasize how the nursing home has put itself in legal jeopardy by administering a drug without consent. Submit this demand to the director of nursing and the nursing home’s Grievance Official.

Judd Matsunaga is the founding attorney of Elder Law Services of California, a law firm that specializes in Medi-Cal Planning, Estate Planning and Probate. He can be contacted at (310) 348-2995 or judd@elderlawcalifornia.com. The opinions expressed in this article are the author’s own and do not necessarily reflect the view of the Pacific Citizen or JACL. The information presented does not constitute legal or tax advice and should not be treated as such.

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