Law allowing facilities to make medical decisions for incompetent residents is unconstitutional, judge says

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A California law allowing nursing homes to make medical decisions for mentally incompetent residents was declared unconstitutional Wednesday.

Health and Safety Code §1418.8 went into effect in 1992, giving nursing homes authority to decide medical treatment for a resident if a doctor was unable to, or the resident had no one to represent them. Facilities needed a way to provide treatment to incapacitated residents rather than waiting for state approval, which could take up to six months, according to the rule.

In 2013, the California Advocates for Nursing Home Reform advocacy group filed a lawsuit against the state Department of Public Health, claiming facilities were using this law inappropriately. CANHR said nursing homes were administering antipsychotic drugs, placing residents in physical restraints and denying patients life-sustaining treatment.

Due process rights are violated when nursing homes do not notify residents that they have been deemed incapacitated, Court Judge Evelio M. Grillo wrote in his decision. Resident rights take precedence over the potential to cause problems in nursing home operations, he said.

They are currently reviewing the decision, a Department of Health spokesman said.