Bioethics Blogs

Judge Strikes California Law that Allowed Nursing Homes to Make Medical Decisions for Unbefriended Residents

I just updated my prior articles on decision making for adult orphans, unbefriended, unrepresented patients without surrogates (forthcoming 26(2) J Clinical Ethics).  And then this.

A California law allowing nursing homes to make medical decisions on behalf of certain mentally incompetent residents is unconstitutional, a state court ruled this week.

The law, which has been in effect more than 20 years, gave nursing homes authority to decide residents’ medical treatment if a doctor determined they were unable to do so and they had no one to represent them.

Alameda County Superior Court Judge Evelio M. Grillo wrote in the June 24 decision that the law violates patients’ due process rights because it doesn’t require nursing homes to notify patients they have been deemed incapacitated or to give them the chance to object.

Grillo acknowledged the decision is likely to “create problems” in how nursing home operate but wrote that patients’ rights are more compelling.

“The stakes are simply too high to hold otherwise,” the judge wrote. Any error could deprive patients of their rights to make medical decisions that “may result in significant consequences, including death.”

The medical decisions on incapacitated residents without representatives are made by a team that includes a physician and a nurse.

The fact that nursing homes are making end-of-life decisions without patient input is a big concern, according to the ruling. The decision cited one nursing home resident who was found to be mentally incapacitated and who had no representative. The facility staff made a decision to take him off life-sustaining treatment and he passed away in 2013.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.