Failure to Follow Medical Decisions of a Nursing Home Resident and His or Her Health Care Representative

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a NJ Power of Attorney Law Firm

Sometimes a nursing home facility will refuse to honor a medical decision(s) of a resident or their health care representative(s) or attempt to discharge the resident who refuses to accept specified medical treatment.  Their actions are not malicious but often made based upon a longstanding corporate policy.

Consider the following example:  Mrs. Niemann (last name sound familiar?) is the health care surrogate for her husband, Fred who has been transferred from the hospital to a nursing home.  Although no guardian has been appointed, Mr. Niemann is incompetent to give informed medical consent and this has been appropriately documented in his record.  Mr. Niemann has previously signed an advanced health care directive and living will which precisely expresses his desire that life support not be used, including nutrition and hydration, if he is in a terminal condition with no reasonable probability of recovery.  Mr. Niemann has a terminal condition and his wife as his surrogate has instructed the facility not to use nutrition or hydration.  One morning Mr. Niemann (still not medically competent) says to the nurse, “I’m thirsty.”  As a result, the facility believes it must administer nutrition and hydration claiming that he has revoked his living will.  Did the nursing home nurse do the right thing?

Here’s the law as I read it:  The resident (me many years from now I hope) has the right to refuse treatment, refuse hydration and nutrition and to participate in experimental research.  The resident’s refusal is enforceable if contained in an advanced health directive and living will.  Here such a document exists and assuming the resident truly is “incapacitated”, then hydration in excess was inappropriate.  Don’t get me wrong, a sip of water to alleviate a highly uncomfortable condition is acceptable, but not for example, attaching a feeding tube or drip line.  That would not.

To discuss issues concerning the use and enforcement of a power of attorney or living will matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.