by Anthony Chicotel, CANHR Staff Attorney
Among experts in long-term care, there is a consensus that many of the unnecessary and dangerous prescriptions for psychotropic drugs for people with dementia are initiated in hospitals. The acute care environment and quick patient turnover in hospitals seems to discourage the relationship-heavy, deliberative process that is often required in good comfort-focused dementia care. As a result, patients with dementia who appear disoriented, confused, or upset during their hospitalization are often given sedating psychotropics to “calm” them.
While the need and efficacy for psychotropics for hospital patients with dementia is commonly questionable, perhaps the biggest problem is adherence to the patient’s right to give or withhold informed consent. Some care providers do not even believe that patients have informed consent rights in hospitals – that somehow people leave their rights to bodily autonomy behind when they enter hospital buildings.
The right to informed consent is grounded in fundamental American legal principles of privacy and liberty. The current understanding of the right to bodily autonomy has developed through over a century of court cases. In the seminal case, Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, (1914), the New York Court of Appeals memorably stated “every human being of adult years and sound mind has a right to determine what shall be done with his own body.” This understanding of informed consent rights grounded in personal liberty and privacy has subsequently been adopted by every jurisdiction in the United States.
Under constitutional principles and common law development, the right to informed consent is among the best established, historically grounded rights we have as Americans. Informed consent naturally applies in the hospital setting. The rules that specifically govern hospitals reinforce and clarify the broader informed consent requirements. On the federal side, 42 Code of Federal Regulations Section 482.13(b)(2) states that all patients have the right to make informed decisions regarding their care. In California, 22 California Code of Regulations Section 70707 states that hospital patients have the right to receive all the information needed to give informed consent or refuse a proposed course of treatment.
Hospitals and the doctors who treat patients in hospitals may want to take a look at three recent deficiencies issued against Kaiser Foundation Hospitals for failure to ensure its patients were told about the potential risks, benefits, and alternatives to psychotropic drugs before administering them. The three deficiencies demonstrate that informed consent is indeed required in hospitals and those who do not ensure it is obtained prior to drugging patients are potentially liable for battery, elder abuse, and negligence.