New California Court Ruling: Nursing Home Decision Making

In June 2015, the Alameda County Courthouse ruled on a case involving Health and Safety Code §1418.8. As of January 2016, a final judgment was ordered calling the outdated health code “unconstitutional.”

The Advocates

The case, brought by statewide, non-profit advocates CANHR (California Advocates for Nursing Home Reform), is a critical first step toward nursing home reform. CANHR, through advocacy, education, and legislation (and litigation when necessary) fights to “create a unified voice for long term care reform and humane alternatives to institutionalization.”

29C71ACF00000578-3135084-image-a-21_1435010983711The Judgment

According to the Alameda Court judgment, “the use of Health and Safety Code §1418.8 is prohibited” because it doesn’t mandate that the nursing home resident be notified in writing when the home makes a medical decision on behalf of the resident. Essentially, skilled nursing home and intermediate care facility staff members were previously empowered to act as medical guardians for their residents, regardless of the resident’s mental capacity or awareness.

Physicians and surgeons are now required to prove, in writing, that the resident gave his/her consent to the medical treatment.

Unrepresented Residents

  • Residents of nursing homes are often unrepresented; meaning they do not have a family member or fiduciary acting on their behalf.
  • Unrepresented residents are frequently the most vulnerable, especially when it comes to medical decision-making. The elderly person might suffer from dementia, Alzheimer’s, or stroke and not have the full capacity to give consent.
  • The number of unrepresented residents continues to grow as more of the population ages, making protection from nursing home abuse critical for elderly Californians.
  • It can be easy for an unrepresented resident to go under the radar of nursing home abuse surveillance. A California nursing home abuse attorney is an important advocate for those who may be victims, as well as a powerful resource for the victim’s family members and loved ones.

Nursing Homes Making Important Decisions

  • CANHR attorney on the case, Mort Cohen, argued the fact that “section 1418.8 impermissibly gave too much unchecked authority to nursing homes to control the lives and deaths of their most vulnerable residents. This judgment ensures that the health care decisions will be made by residents themselves unless a court is convinced they can’t.”
  • Before the new ruling, under section 1418.8, nursing home staff could make medical decisions for the residents, including whether or not to administer mind-altering drugs and even withholding end-of-life care.
  • Under the old law, residents were sometimes completely unaware that medical decisions were being made on their behalf.
  • The new ruling places the decision-making power back into the hands of the resident or his/her legal conservator.

Getting Help

If you are concerned that a friend, family member or loved one has been suffering from nursing home abuse or neglect, it’s important to contact an experienced California Elder Abuse lawyer to evaluate your case and advise you on your next steps. San Diego Elder Abuse lawyer, Christopher Walton, has built a reputation for providing compassionate and strong advocacy for victims of Elder Abuse, including Nursing Home Abuse, and Financial Elder Abuse. For a confidential consultation, please (866) 338-7079.