Earlier this year, the AARP joined a very unique class action lawsuit against a nursing home in Ventura, California facing charges that it administered antipsychotic drugs to its residents without informed consent from the patients and/or their representatives . The lawsuit, which also targets a doctor, alleges, in part, that residents of the facility were administered a number of antipsychotic medications under a scenario where, instead of obtaining direct informed consent from the patients or their representatives, the doctor would rely on the nursing home to obtain informed consent.
The lawsuit also alleges that the nursing home either did not obtain such consent or, on occasion, falsified records stating that it had.
This is a very troubling case, and a good opportunity to reflect on the law in Illinois to this effect. Section 2-106.1(b) of the Nursing Home Care Act is directly on point regarding administering psychotropic medication. This section provides:
(b) Psychotropic medication shall not be prescribed without the informed consent of the resident, the resident’s guardian, or other authorized representative. “Psychotropic medication” means medication that is used for or listed as used for antipsychotic, antidepressant, antimanic, or antianxiety behavior modification or behavior management purposes in the latest editions of the AMA Drug Evaluations or the Physician’s Desk Reference. The Department shall adopt, by rule, a protocol specifying how informed consent for psychotropic medication may be obtained or refused. The protocol shall require, at a minimum, a discussion between (i) the resident or the resident’s authorized representative and (ii) the resident’s physician, a registered pharmacist (who is not a dispensing pharmacist for the facility where the resident lives), or a licensed nurse about the possible risks and benefits of a recommended medication and the use of standardized consent forms designated by the Department. Each form developed by the Department (i) shall be written in plain language, (ii) shall be able to be downloaded from the Department’s official website, (iii) shall include information specific to the psychotropic medication for which consent is being sought, and (iv) shall be used for every resident for whom psychotropic drugs are prescribed. In addition to creating those forms, the Department shall approve the use of any other informed consent forms that meet criteria developed by the Department.
As you can see, the law on this point in Illinois is extremely strict as to how informed consent is to be obtained and who it is to be obtained from. The above-cited California case gives cause for everyone to keep a close eye on the medication that facilities are providing to their loved ones and insist on following the guidelines for informed consent.
You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have anyquestions and to learn how we may be able to help you or your loved one who has been a victim of nursing home abuse or neglect – in particular, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters – large or small.
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