Curious Consent Standards in Nursing Home Admissions

November 15, 2008

Nursing home administrators face an unexpected ethical (and legal) dilemma when admitting new residents to skilled nursing care. The Nursing Home Care Act undercuts a traditional notion of informed consent in such a way that many residents may be admitted to a nursing home without ever consenting to treatment, or having a meaningful surrogate consent to their treatment. This is clearly an issue of nursing/medical ethics, as well as a font of potential legal liability for providing unauthorized care.

American health care law is predicated on the notion of patient autonomous-direction. Within this notion exist a number of inter-linked rights: the right to self-determination, the right to give consent before treatment, the right to information forming the basis of consent and many others. Curiously, in senior care, as in perhaps no other major area of American health care law, the status of patient autonomous direction, especially with respect to consent before treatment, is less sacrosanct, the exceptions more numerous. This is especially true in the legal quagmire of involuntarily placing adults in nursing homes.

I am most familiar with the Illinois Nursing Home Care Act and it will thus form the background of this discussion, but the Illinois Act is not dissimilar to Nursing Home Care Acts in many other states, at least inasmuch as the acts address the issue of involuntary admission. Clearly involuntary admission of a resident to a nursing home presents moral and ethical issues most families are not experienced in dealing with, not to mention attendant feelings of guilt for the family members and likely betrayal for the patient herself. However, for the health care provider, the nursing home, the struggle is a balance between determining the self-interest rights of the resident and the interests in rendering care.

Admission with Consent/Admission with a Surrogate’s Consent

In Illinois, the default position is that every resident, regardless of diagnosis or infirmity, is presumed to have the capacity to make her/his health care decisions. This includes admission into a nursing home. Providing nursing home care to a person who has capacity to refuse such care, and does refuse it, is paramount to a battery on the patient by the nursing home and would subject the home to potential liability. Determining incapacity is generally a court adjudication, relying in part on advice from a physician, looking at the patient’s ability to make decisions, understand the consequences of one’s own actions and comprehension of one’s diagnosis. If a court determines a person does not possess the capacity to give consent to health care, then a guardian will be appointed to that person to make decisions regarding the person’s health care.

Interestingly, a guardian cannot make the determination to admit her charge into a nursing home unless given express authority by the court to make such a decision. Thus, it is possible (and happens often enough to be noteworthy) where a guardian (usually a family member) who made the decision on behalf of her charge to admit the patient into a hospital must seek specific direction from the issuing court to admit her charge into a nursing home upon discharge from the hospital. Support for this position is fairly widespread and is a outgrowth of the importance of autonomous determination in American health care. In brief: nursing home care is seen as different enough from other provider types, that the type of front-line health care that a guardian usually makes decisions on (administration of prescriptions, whether to have certain hospital-based treatments, etc.), that the decision to admit a patient into a nursing home represents in effect a different, more substantial level of capacity for the court to determine.

Assuming a guardian is granted the authority to admit her charge into a nursing home, this consent will suffice to protect the nursing home from liability, regardless of the manifest wishes of the patient. Yet, the Illinois Act allows for different surrogates other than those specifically appointed by the court to contract with nursing homes for the admission of their charges or wards. A resident may plan for her own incapacity, and avoid the lengthy process of court-ordered and controlled guardianship, by designating a surrogate using a Durable Power of Attorney for Health Care. The Illinois Nursing Home Act creates a statutory form that families can use, although the statutory form has generated many criticisms from commentators because its confusing language may belie the “consent” such forms are supposed to evidence. Such surrogates can consent to nursing home admission so long as the Power of Attorney does not contain language that bars the surrogate making such a decision, either in the presence of manifest intent by the patient/principal, or under any circumstance. Barring this unusual direction in the document itself, a Durable Power of Attorney for Health Care is the most used and safest way residents are involuntarily admitted to nursing homes.

Chipping Away at Informed Consent in the Nursing Home Setting

However, in the absence of a legal surrogate relationship (either a court-directed guardianship or non-exempt Durable Power of Attorney for Health Care), the Illinois Nursing Home Care Act still allows some elements of informed consent to be chipped away. For example, a member of the patient’s family can contract for her admission to a nursing home on the patient’s behalf in the absence of her (the patient’s) positive, manifest consent. This contract is legally binding on the patient/resident so long as she does not object to it once admitted to the nursing home. Thus, a patient can be admitted to a nursing home, a major life change, even when no formal surrogate relationship exists.

The potential harm to patient’s rights caused by the loophole should not be underestimated. Going into a long term care facility represents a major life change for the resident. Generally, they are moving into a new and unknown environment while being taken care of by a physician and nursing staff. Once they are admitted to the nursing home, many residents may be hesitant to voice any objections to their admittance because of cultural imperatives that they do not disagree with medical staff, financial difficulties of living at home and the reluctance to go against the decisions of younger family members who have already arrived at the conclusion that the nursing home is the best place for their continued care.

By requiring only an objection to admission, rather than traditional informed consent, nursing home administrators may be severely impinging on the rights of the residents they serve.

Legal Analysis/Future Action

The legislative history of the Illinois Nursing Home Care Act is disquietingly silent on the issue of creating a statutory distinction between requiring consent for admission and mere objection. Some commentators have described this distinction as being, perhaps, only a scrivner’s error originally, but have harshly criticized the fact that the language creating the distinction has not been changed. They see this as a departure from the foundational premise of patient autonomous-direction.

Whether intentional or not, the artificial distinction serves to create wiggle-room in the informed consent arena that did not previously exist. Given the nature of nursing home care (i.e. a major life-shift for most residents who may be too vulnerable to actually object to admission once they are in the facility), such a distinction creates a potential liability problem for nursing homes and, more importantly, a major ethical concern for providers.

In Illinois this issue has not been addressed by the courts, though there is mounting pressure in the long term care community for some kind of legislative action. The convenience of family members being able to contract with long term care facilities in the absence of express, manifested informed consent by the patient goes against the long tradition of patient autonomous-direction in American health care. Involuntary admission to a nursing home is serious enough that it should be a deliberate decision, a willful cross of the intent of the patient with all of the moral and legal protections and processes that have been created to protect the rights of patients as much as is proper. It should not be a back door policy, a mere absence of objection.

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