Elder Abuse and Informed Consent

Elder Abuse and Informed Consent

Open bottle of pills spilling onto the counter

Every nursing home resident has the right to be informed about the care and services being provided and to accept or refuse recommended treatment.  When the treatment involves the use of psychotropic medications, there are special protections in place in nursing homes to make sure they are used properly.  This includes the requirement that the prescribing physician has a meaningful and substantive conversation with the resident or their legal decision-maker to disclose the benefits, risks, and alternatives of the drug.  A nursing home must verify that a meaningful exchange of information has occurred before they can give the drugs to the resident.    All too often, however, prescribing physicians and nursing home staff do not take the steps to obtain informed consent from elderly residents or their legal decision-makers. When informed consent is not obtained, this can serve as the basis of an elder abuse claim in California.

What are Psychotherapeutic Drugs and Why are they Bad?

Misuse and overuse of psychotherapeutic drugs is the leading cause of misery, neglect, and death for residents with dementia.  They contain powerful chemicals that act on the resident’s brain to change mood, personality, behavior, and/or level of consciousness.  Many psychotherapeutic drugs have dangerous side effects.  Psychotherapeutic drugs fall into four categories:

  • Antipsychotics (Haldol, Seroquel, Risperdal, Zyprexa)
  • Antidepressants (Wellbutrin)
  • Antimanics (sedatives/hypnotics) (Zoloft)
  • Antianxiety (Ativan, Xanax, Valium)

Nearly 60% of all California nursing home residents are given psychotherapeutic drugs, a 30% increase since 2000.  Many psychotherapeutic drugs have dangerous side effects, especially antipsychotic drugs.  

In 2008, the FDA issued black box warning for use of antipsychotic drugs in elderly patients with dementia: it increases risk of death; they are not approved for treatment of dementia-related psychosis; and physicians should discuss the increased risk of death with elderly persons, their families, and their caregivers.  (www.fda.gov/Drugs/DrugSafety/ucm124830.htm)  Physicians should consider other management options.

Informed Consent and Psychotherapeutic Drugs

California law requires prescribing physicians and nursing home staff to obtain informed consent from residents or their legal decision-makers before giving psychotherapeutic drugs.  It is the responsibility of the prescribing physician to disclose information about the resident’s condition and the proposed use of the drug so that a reasonable person has enough information to decide whether to accept or refuse the proposed use of the drug.  Information material to making a decision to accept or refuse psychotherapeutic drugs includes:

  • What specific, documented behaviors or symptoms prompted the need for a psychoactive drug (e.g., is the resident having delusions or is the resident simply agitated?)
  • Whether all possible medical or environmental causes have been ruled out (e.g., pain, dehydration, infection, sleep disruptions)
  • What alternative treatments have been tried and failed and whether other alternatives exist
  • The risks and side effects of the drug, how the side effects will be monitored, and who will monitor the side effects
  • The proposed duration of taking the drug
  • When and how often the resident will be reassessed to determine if the drug is still needed
  • The resident and their legal decision-maker have the right to refuse or accept the proposed treatment

Informed consent is a two-way street.  The prescribing physician must disclose information to the resident or the legal decision-maker material to making a decision to accept or refuse the use of psychotherapeutic drugs and the resident or legal decision-maker must accept that treatment plan to use the drug before it is administered.  Failure to obtain informed consent before administering psychotherapeutic drugs is battery against the resident and may be the basis of an elder abuse claim.

Contact a CA Elder Abuse Attorney About Informed Consent

If you suspect you or a family member were given psychotherapeutic drugs without your informed consent, you may have an elder abuse claim against the prescribing physician and the nursing home. At Johnson Moore, our attorneys are compassionate and determined defenders of the elderly, and we will take the time to fully understand your concerns and assess what steps we can take on your behalf in bringing an elder abuse claim. Contact Johnson Moore today to schedule a free consultation regarding your potential elder abuse claim.

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