Informed Consent Rights Are Every Bit as Strong in Hospitals as in Nursing Homes

The issue of hospital-initiated antipsychotic drugs for people with dementia is one of the many reasons for the overuse of antipsychotics in nursing homes.  Antipsychotics are started in the hospital the drugs typically stay with the resident as she moves to a nursing home for rehabilitation and therapy.

How often are antipsychotics or other chemical restraints used on hospital patients with dementia? Statistics are hard to find but there is reason to believe they are used often, very often.  CANHR hears from many callers who describe hospitals that use chemical restraints indiscriminately on patients with dementia.  And in nearly all of these cases, the drugs are used without the informed consent of the patient or the patient’s legal representative.

The law regarding informed consent could not be more clear: physicians are required to explain the risks, benefits, and alternatives for any proposed treatment when those risks, benefits, and alternatives are not generally known by the public.  For antipsychotics or other brain-scrambling drugs used to sedate and subdue patients, risks, benefits, and alternatives must be explained and consent from the patient or her representative must be provided.  This law comes from over a century of judge-made common law, based in constitutional principles of autonomy and privacy, and applies to all physicians in all settings.

In emergency situations where a patient’s immediate health and safety are threatened, obtaining informed consent before initiating treatment can be postponed.  Hospitals no doubt rely on this exception.  But the exception expires when the immediate threat dissipates and certainly does not grant hospitals the right to drug any patient any time.

Title 22 of the California Code of Regulations Section 70707 goes beyond the common law requirements and specifically requires hospitals (not just the prescriber) to make sure patients “receive as much information about any proposed treatment or procedure as [they] may need in order to give informed consent or to refuse this course of treatment.”  The right to give or withhold informed consent could not be any more plainly stated.  Federal regulations (42 CFR Sec. 483.13) similarly give hospital patients the right to be consulted in their care and to make informed decisions.

Those who defend hospitals’ failure to obtain informed consent for antipsychotics argue that the blanket “consent to treat” form that some patients sign on admission covers treatments like antipsychotics.  Nonsense.  Antipsychotics have very specific and lengthy risk profiles and alternatives to consider that are not covered in a blanket “consent to treat” form.  Additionally, Section 70707 explicitly requires “as much information” be shared with the patient about any proposed treatment.  Consent obtained without specific information about benefits, risks, and alternatives is not informed; in fact, it may not even constitute consent.

For those who still harbor doubts about a hospital’s obligation to make sure patients give informed consent before administering antipsychotics, look no farther than the Department of Public Health (DPH)  – California’s hospital regulatory enforcement agency.  Even DPH sometimes issues deficiency notices to hospitals that fail to ensure informed consent is obtained for antipsychotics or other chemical restraints.  The problem is that DPH does not monitor compliance with the informed consent rules very closely and few patients are capable of filing complaints.  As a result, many hospitals continue to violate the informed consent rules with impunity.

For the last four years, CANHR has called on nursing homes to stop drugging our elderly and some hopeful progress has been made.  Meanwhile hospitals have gone unexamined, providing “treatment” based on antiquated notions of care that begin and end with chemical restraint.  It is long past time to expect more from our hospitals – starting with informed consent.

 

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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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Responses to CANHR blog postings do not reflect the opinions of CANHR or its staff members.

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