by Tony Chicotel, CANHR Staff Attorney
According to Section 1424(e) of the California Health and Safety Code, a class B citation may be issued by the state’s Department of Public Health (“DPH”) whenever a nursing home violates a rule or regulation and creates a risk to the health, safety, or security of one or more of its residents. Yet DPH time and again fails to issue citations when facilities have committed blatant battery against their residents.
All adults have the right to give or withhold consent to health care treatment. Health care providers who provide treatment to patients without their consent are committing battery. Battery is defined as intentional and wrongful physical contact, typically associated with the use of force.
DPH has refused to issue citations following two recent investigations which identified nursing homes that were drugging residents without consent. In the first case, the facility was found to have administered Haldol, a powerful antipsychotic drug with severe side effects, as a chemical restraint knowing that a physician had never discussed the drugs with the resident or his legal representative. In the second case, the facility had drugged three of three sampled residents with Seroquel, another harsh antipsychotic drug, without their consent. For one resident, the facility staff simply added the drug to her feeding tube – she was none the wiser. Incredibly, neither of these investigations led to a citation against the offending nursing home.
The message from DPH is clear: illegal drugging against frail elderly seniors is not worthy of even the lowest level citation it can issue. The imagination strains to conceive a scenario where punching or kicking a resident multiple times would not be subjected to a swift and unequivocal citation. And yet, battery by drugging residents into submission merits no citation at all. The cruel fact for nursing home residents is that drugging has become standard practice and issues of consent are mere procedural nuisances to be ignored with virtually no consequences.
The drugging epidemic in California nursing homes will continue unabated until there is a fundamental shift in nursing home care practices. With DPH’s head in the sand, such a shift may be wishful thinking for the 25,000 residents who are currently receiving antipsychotic drugs.