A lawsuit filed last month in Alameda Superior Court seeks to make nursing homes safer for elderly people in California, and to eliminate staff abuse in the state’s facilities, elder abuse lawyers in Alameda County say. The California Advocates for Nursing Home Reform, (CANHR) along with several nursing home residents, has filed the suit against the California Department of Public Health (DPH), in an attempt to have one of California’s laws declared unconstitutional.
In their lawsuit, CANHR has questioned the constitutionality of Health and Safety Code 1418.8, a state law that qualifies physicians and doctors assigned to nursing home residents to decide whether the resident is mentally capable of choosing their own medical treatment options. If the resident does not appear to have a surrogate, or a family member or friend, to help them in opposing treatment decisions they do not want, the physician can declare him or her incompetent.
Under the law, which was established in 1992, declaring a resident incompetent allows doctors and nurses on the facility to administer mind-altering drugs, physically restrain the resident, or deny him or her life sustaining treatments such as breathing tubes or oxygen supplies. According to CANHR, DHP has interpreted this law to extremes, allowing nursing home facilities to tie residents to their beds, and incorporate anti-psychotic drugs as well as intrusive treatment plans into their routine health care.
The complaint cites several incidents of mistreatment in nursing homes in the county. One resident was allegedly asked by a staff member if he wanted to “live or die.” When he failed to answer, allegedly, the staff removed his feeding tube, and placed him in hospice, where he later died without proper nutrition and care. Another resident complained that she was told by her nursing home’s staff that she would be picked up by police, and her friends charged with kidnapping, if she went on a picnic with them outside the home grounds.
CANHR’s lawsuit also charges DPH with using the statute as justification for residents’ deaths, through “do not resuscitate” orders that residents may or may not have agreed to. The anti-psychotic drugs that are administered in the homes can alter residents’ states of mind to the point that they agree to treatment they do not want, or make uninformed decisions for their own care, despite a 1986 ruling by the state courts that anti-psychotic and mind-altering drugs can only be administered after receiving informed consent.
CANHR, a nonprofit organization in California, relies on legislation and litigation to spread reform in nursing homes across the state, making long-term care facilities safer and more comfortable for older Californians. This lawsuit is one of several movements by advocates of fair and humane care for elderly persons in need, and elder abuse lawyers in Alameda County hope that the reversal of Health and Safety Codes such as 1418.8 will prevent staff in nursing homes from taking advantage of the residents in their care.