PSDA in the Nursing Home

Abstract

As long-term care providers comply with the Patient Self-Determination Act they will confront the substantial differences that exist between nursing homes and hospitals in relation to health care decisionmaking. These differences arise first from the notion that nursing home care is less trustworthy than hospital care and requires more public oversight. Second, the regulatory system applicable to nursing homes is quite different from that applicable to hospitals and other caregivers and has a significant impact on treatment decisionmaking. A third difference between nursing homes and hospitals lies in the structures of caregiving and governance in most nursing homes. Finally, the informed consent model of health care decisionmaking bas not found a precise fit in nursing home care. In Conroy (486 A.2d 1209 [N.J. 1985]), the New Jersey Supreme Court established a special regime for discontinuation of treatment in nursing homes which required, among other things, that a state Nursing Home Ombudsman be notified prior to any discontinuation of treatment. The ombudsman was directed by the court to consider every notification of withdrawal of life-sustaining treatment as a possible abuse and, in consequence, to conduct an investigation. The contrasts between this approach and that of the same court in Quinlan are quite obvious and relate to the court's view that nursing homes require more public scrutiny than do hospitals. More recently, in Greenspan (558 N.E.2d 1194 [Ill. 19901) it was argued that withdrawal of a feeding tube from an incompetent patient would always violate Illinois law requiring nursing homes to provide shelter and assistance with meals and prohibited neglect of nursing home residents. Although the court ultimately rejected this claim, these two cases provide some glimpse of a deeply held assumption concerning nursing home care: that withdrawal of treatment is abusive and illegal. Whether nursing home residents as a group should be treated differently from other individuals in regard to treatment decisions is a public policy question that remains unresolved. Regulations governing quality of care in nursing homes are quite different from those applicable to hospitals, and that too has had an impact on how refusals of treatment are handled. Unlike the regulation of hospitals, nursing home regulation does not initially defer to the judgment of the individual health care providers or to the internal quality assurance mechanisms of the facility. Rather, enforcement is a high priority, capturing the lion's share of the budget for enforcing health care regulations in most states. The emphasis on enforcement and supervision by public agencies makes administrators risk averse to any action that would attract investigation. Substantively, the regulatory emphasis on treatment, which tends to view nontreatment as an abuse or violation of standards unless proven otherwise, makes discontinuation of treatments risky. Despite changes that allow withdrawal and withholding of treatment, in practice institutional policies on advance directives may still reflect a fear of nontreatment. Thus in complying with the Patient Self-Determination Act, facilities may communicate a de facto requirement of a written advance directive prior to decisions to discontinue or forgo treatment. …