DPH’s Kinda Good New Informed Consent Guidelines

DPH gave nursing home residents a mixed-bag holiday gift regarding informed consent just before the new year. DPH released All-Facilities Letter (AFL) #13-38 and accompanying “Frequently Asked Questions” (FAQ) document regarding informed consent. The new FAQ form revised and added questions and answers to a similar document released in 2011.

The FAQ revisions’ main focus appears to be including nurse practitioners among the “licensed healthcare practitioners” who may obtain informed consent for purposes of 22 Cal. Code of Regulations Sec. 72528.

But other revisions that have nothing to do with nurse practitioners are quite noteworthy. Some of the language clarifying that nursing homes may not give psychotropic medications unless informed consent has been verified has been deleted from Question 2. Although it is still unarguable that facilities must have informed consent verification before administering any psychotropic medications, DPH’s deletion of much of its explanatory language is curious.

The answer to Question 12, regarding the documentation of informed consent, has significantly changed. Whereas DPH had previously indicated reluctance to dictate the content required in informed consent verifications, it now states that medical records must contain:

“documentation that all enumerated requirements [the reason for treatment, the nature of the treatment, expected benefits, risks and side effects, alternatives, right to refuse] have been shared with the patient, that the patient has consented to the treatment, and that this sharing and ultimate approval of the procedure by the patient is memorialized in the medical record prior to the initiation of treatment.”

It appears the days of facility nurses scribbling “i.c.o.” (for “informed consent obtained”) or some other hollow verification are over. All of the elements of regulatory informed consent must be accounted for in the verification documentation.

Meaningful informed consent processes are key to reducing psychotropic drug misuse. People tend to think twice about medications when they are told they often don’t work and often make conditions worse. The new information provided by AFL 13-38 clarifies a more robust informed consent verification process and is a welcome development in the campaign against the misuse of psychotropic drugs.

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About achicotel

Anthony Chicotel is a staff attorney for CANHR. His areas of expertise include the rights of long-term care residents, nursing home litigation, health care decision-making, and conservatorships.
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