Informed Consent for the “Incapacitated”

By Tony Chicotel, CANHR Staff Attorney

One of the more important reasons why overdrugging is so pervasive in nursing homes is that residents are often never asked if they agree to take psychotropic drugs that have been prescribed by a doctor.  Doctors rarely see or talk to their patients in nursing homes and the pressure from staff members to drug residents into submission can be intense.

Many doctors and nursing home staff members justify their failure to obtain or verify informed consent on the alleged incapacity of the residents to make a decision about proposed drugging.  If a resident does not have capacity to understand basic information, why bother wasting precious time detailing pros and cons of a proposed drug?  Well, I can think of three reasons.

One, the law requires residents be informed of all proposed treatment (the only exception is when a resident has been court-adjudicated incompetent).  The main reason residents must be informed of treatment is so they can reasonably exercise their right to accept or withhold consent.  In order to effectively exercise their right to accept or refuse a drug, residents must be given the basic information about it.  Even if a resident has a surrogate decision maker, they retain the right to refuse.  The proper exercise of the right to refuse necessitates information.  Therefore, even residents who have allegedly lost capacity are legally afforded the right to information about their drugs.

A second reason for informing allegedly incapacitated nursing home residents of their proposed drugs is clinical.  Even patients with advanced dementia can communicate basic thoughts about their feelings such as fatigue or pain.  Given that ability, most patients with questionable capacity can likely report their experience with drug side effects.  Instances when informed consent is normally required, such as when a medication might be increased or changed, would certainly be clinically enhanced with input from the patients themselves.

The final reason why information is so important, even to residents with little mental capacity, is basic human dignity.  The first casualty in many nursing homes is the perceived humanity of its residents.  Residents are sometimes seen as a collection of diagnoses and symptoms and often do not receive the basic social graces of human interaction.  They are poked, prodded, and manipulated regularly without anyone asking about their preferences.  Failing to explain the noteworthy features of proposed psychotropic drugs to the residents they are intended to benefit is a major reason why nursing homes often resemble soulless factories instead of warm care homes.

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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.

One Response to Informed Consent for the “Incapacitated”

  1. kimberanne says:

    It’s shocking how prevalent this is. Nursing home sends fax to doc, “Resident is “non-compliant”. Daughter wants to know if we can try ativan.” Doc faxes back, “Ok”. Besides the fact the word “non-compliant” makes me want to have a “behavior”, half the time the daughter doesn’t even know the facility is requesting the med.

    Thanks for calling attention to this!

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