CA Judge: Nursing Homes Can’t Make Medical Decisions

By Wesley J. Smith

elderlycanereThis is very good. A California judge has ruled that it is unconstitutional to permit nursing homes to make medical decision on behalf of their incompetent patients.

From the Kaiser Health News story:

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.”

This is very important because a nursing home could have a deep financial conflict of interest in making these decisions, particularly if–as is usually the case–the patient is on Medicaid and the home needs the bed to pay for a higher compensating private-pay customer. (Don’t think that doesn’t or couldn’t happen.)

What to do? Each patient should have a duly appointed or state guardian with the legal and fiduciary obligation to make decisions on behalf of the patient’s best interests.

True, in this day when bioethical utilitarianism permeates everything, that can be a slim protection of the equal dignity and right to life of such patients. But at least the guardian will not have a potential financial conflict of interest.

By the way, Grillo is the judge who pushed for the settlement in the Jahi McMath brain death case that allowed her mother to take Jahi to New Jersey, where she remains viable to this day.

Editor’s note. This appeared on Wesley’s great blog.