Ask the legal expert ... about residents refusing treatment

Attorney John Durso, Ungaretti & Harris LLP
Attorney John Durso, Ungaretti & Harris LLP

Can documenting a resident's refusal of care-giving recommendations keep us out of being successfully sued? 

Whether stubborn or not, a competent resident (or decision-maker) has a near absolute right to refuse treatment. As a general rule, the resident is the ultimate decision-maker regarding his or her medical care, and a facility may not treat the resident without the resident's informed consent.  

As with consent, in order to qualify as a valid refusal, the resident must have decision-making capacity and make an informed decision to refuse treatment. This means the resident must be capable of making medical decisions at the time and the facility must explain the treatment options, expected outcomes, and potential consequences of refusing treatment.

The Centers for Medicare & Medicaid Services also specifically states that to the extent the facility is able, it should address the resident's specific concerns. For example, CMS provides that if a resident requires physical therapy to learn to walk again after sustaining a fractured hip and the resident refuses therapy, CMS expects the facility to assess the reasons for the resident's refusal, clarify and educate the resident as to the consequences of refusal, offer alternative treatments, and continue to provide all other services. 

The facility is ultimately accountable for the resident's care and safety in the context of a resident's refusal of treatment. Accordingly, if a resident's refusal brings about a significant change in circumstances, the facility should reassess the resident, consult with the resident's physician, and institute changes in care planning where possible.  

The facility should carefully document in the resident's clinical record that it has followed the above requirements and recommendations.