Kudos to DPH on “Preexisting” Drugs

by Anthony Chicotel, CANHR Staff Attorney

In a very welcome development for informed consent rights, the Department of Public Health has issued an All-Facilities Letter (AFL 11-08) requiring nursing homes to verify informed consent has been obtained before giving residents any psychotropic drugs regardless of where the drugs were first prescribed. The AFL is pursuant to California Code of Regulations, Title 22, Section 72528.

The AFL rescinds an illegal DPH policy set in 1993 that had permitted nursing homes to administer psych drugs under preexisting orders without inquiring at all whether informed consent had been obtained. The prior policy tacitly encouraged and perpetuated a long-term care system whereby nursing home residents were drugged without consent using medications first administered in a hospital.

The new AFL puts DPH policy in compliance with the longstanding informed consent regulation at Section 72528, which requires nursing homes to verify informed consent without regard to where the psych drugs were first prescribed. DPH told nursing homes they must verify informed consent before administering any psych drug, either by obtaining documentation of prior consent or obtaining new consent.

While the AFL will certainly affect nursing homes and likely decrease some of the misuse of psych drugs on residents, it may have its greatest impact in hospitals, where informed consent is often completely ignored.  If DPH enforces Section 72528 and the AFL, nursing homes may begin turning away prospective residents receiving psych drugs from hospitals unless informed consent can be verified.  Hospitals may suddenly find they have no place to send patients who need skilled nursing care.  They would be forced to treat informed consent with the gravity it deserves.

So way to go DPH!  We’re hoping this AFL is a sign that informed consent rules are going to be more vigorously enforced.

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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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