Will the Massachusetts Department of Public Health (MDPH) provide clarity on the administration of psychotropic drugs in nursing facilities when it implements Outside Section 140 of the Fiscal Year (FY) 2015 Massachusetts State Budget, or will nursing facilities still find themselves in a Catch–22 situation?
Outside Section 140 of the FY 2015 Massachusetts State Budget amends the nursing facility licensure statute to allow the administration of “psychotropic drugs” (to be listed on a schedule established by the MDPH) to a resident, if a facility obtains informed written consent (on a form approved by the MDPH) from the resident, the resident’s health care proxy, or the resident’s guardian.
According to a MDPH Circular Letter issued in 2003, a valid health care proxy (HCP) agent can consent to antipsychotic drugs (which is a psychotropic drug) without having to obtain a court approved treatment plan under Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983) if the following two conditions are met: (1) the resident has not limited the HCP agent’s authority to consent to treatment with antipsychotic medications on the HCP form and (2) the resident has not revoked or indicated an intent to revoke the HCP, for example, the resident has not refused to accept antipsychotic medication.
Is a resident’s refusal to accept antipsychotic medication an indication of an intent to revoke the HCP? Or is it merely a consequence of the resident’s underlying mental illness that resulted in the resident’s physician determining that the resident lacks the capacity to make health care decisions, thus invoking the HCP? Put another way, if the resident is not competent to make health care decisions, how can the resident form the requisite intent to revoke the HCP?
The following fictional account of a resident in a nursing facility illustrates the problem:
Resident A is an 86 year-old male who is a Holocaust survivor. He was admitted to a nursing facility on June 24, 2014. When he was admitted to the facility he was competent. He had executed a health care proxy several years ago appointing his wife as his health care agent. A month after his admission to the facility Resident A began to exhibit signs of a psychotic break. During the last few weeks he has suffered from delusions and paranoia. Resident A appears to think that he is a soldier who is a prisoner of war. He is belligerent toward the facility’s staff and toward his wife when she visits. He issues commands to the staff to refrain from approaching him and if they do approach him he spits on them. His treating physician has determined that he lacks the capacity to make health care decisions, thus invoking his HCP. His physician has recommended the administration of antipsychotic drugs in accordance with a treatment plan to control the resident’s delusions and paranoia. His HCP has consented to the administration of antipsychotic drugs. However, Resident A refuses to take the antipsychotic drugs orally, because he believes that the staff are trying to brainwash him.
The MDPH Circular Letter issued in 2003 states: “Please note that a refusal to accept antipsychotic medication may indicate an intent to revoke the health care agent’s authority. In such situations, the facility should take steps to obtain court authority to treat.”
Is Resident A’s refusal to take the antipsychotic drugs an indication of an intent to revoke the HCP’s authority or is it due to his delusions and paranoia? Should the facility take steps to obtain court authority?
Stay tuned to find out whether the MDPH provides clarity on the administration of psychotropic drugs in accordance with Outside Section 140 of the FY 2015 Massachusetts Budget.
If you have any questions about the administration of psychotropic drugs, health care proxies, or guardianships, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice Group and the author of this post. You can reach Rochelle at 617 456 8036 or rzapol@PrinceLobel.com.