Judd new 3.14By JUDD MATSUNAGA, Esq.

Nobody wants to go to a nursing home. But if you do — beware!!! One of every four California nursing home residents is given psychoactive drugs on a daily basis.

These extraordinarily dangerous drugs – sometimes called psychotropics or psychotherapeutics – contain powerful chemicals that act on the brain to change a person’s mood, personality, behavior, and/or level of consciousness.

Antipsychotics are the drug of choice in California nursing homes. These are designed to treat schizophrenia and psychosis and have positive uses. Risperdal, Seroquel, Zyprexa, and Haldol are the most commonly used antipsychotic drugs. However, many nursing homes routinely use psychoactive drugs as a substitute for needed care and as a form of chemical restraint.

Let’s say you were once a renowned and respected doctor, lawyer or Indian chief. However, now with advanced dementia, you’re wearing diapers. As far as the nursing home staff is concerned, you’ve lost your dignity. But not in your mind. You demand quality care. After all, it might be costing you a fortune.

Guess what — if you are requiring two or three times as much care as the average resident, the following might happen. The nurse gets on the phone and calls a doctor familiar with the facility and says, “Hey Doc, so-and-so is agitated and upset.” And the doctor says, “OK, I’m going to prescribe this.”

In a segment on KCET’s  “Overmedicated and Misinformed” (Oct. 1, 2014), attorney Matt Borden was able to win a lawsuit against Country Villa Seal Beach for senselessly and illegally drugging his client. According to Mr. Borden, there are financial incentives to use drugs as chemical restraints on difficult residents. “When you don’t have enough staff, the facility makes more money since it’s an expense to hire more people.”

In this case, the drug was Haldol. “It’s the drug that they use to knock down the worst, violent criminal offenders in the California penal system,” says Mr. Borden. “And they gave it to her with no consent, no process. Nobody was reviewing it. It was prescribed over the phone by someone who had never seen her before.”

Mr. Borden continues, “I would say the doctor has broken the law. The facility has broken the law too if they knew that the doctor hasn’t talked with the patient.”

Attorney Michael Connors with California Advocates of Nursing Home Reform (CANHR) adds that “the use of antipsychotics to chemically restrain nursing home residents is elder abuse on a massive scale.

“People are literally left in misery because they’ve been drugged into a state where nobody can figure out what the real problem is. And what happens is they misinterpret expressions of distress as some sort of mental aberration that requires some psychiatric drug. When somebody has been sedated with these drugs, those residents are more prone to bed sores, more prone to pneumonia, more prone to strokes.”

It has been estimated that around 90% of nursing home residents who receive antipsychotics have dementia. The FDA has warned the world that antipsychotics are almost always bad news for people with dementia and are often fatal. The ineffectiveness and dangers of these drugs are more than enough to justify swift remedial action.

So on Sept. 19, 2014, the Center for Medicare and Medicaid Services (CMS) announced its new goals for reducing antipsychotic drugs in nursing homes by 30% from 2011 levels by the end of 2016. But for the 70% of residents who will continue to be drugged with antipsychotics and other chemical restraints, the announcement is yet another abandonment.

Several leading resident advocacy groups have called for much stronger action. The advocates warned that “by the end of 2016, we will still have more than 250,000 nursing home residents receiving antipsychotics, inappropriately and at tremendous personal cost to them and their families, not to mention tremendous financial cost to taxpayers.”

According to the CANHR website, “The marginal CMS goals send the message that most antipsychotic drug misuse is tolerable.” Although current law requires doctors to obtain a patient’s informed consent before prescribing antipsychotics, “federal and state regulators are really not enforcing the law,” says Mr. Conner. “They’re treating these rights to be free from chemical restraints, the right to be free from unnecessary drugs as suggestions rather than requirements.”

So, until nursing homes stop drugging their residents with dementia into submission, you need to know you have certain residents’ rights:

(1) Informed Decision-Making: Residents have the right to be informed about the risks and benefits of any medication.

(2) Right to Refuse: Residents have the right to refuse a medication.

(3) Freedom from Chemical Restraints: It is against the law to give medications that do not benefit the resident, such as for convenience of staff.

Finally, if you think you might have Alzheimer’s or dementia, before you end up in a nursing home (i.e., while you still have capacity), I would advise you to add the following provisions to your Health Care Power of Attorneys:

AGENT’S LIMITATIONS: My agent may not make any of the following decisions that are initialed below:

(a) Enter into binding pre-dispute arbitration agreements on my behalf nor otherwise waive my rights to pursue legal remedies, including actions in a court of law, in advance of a dispute.

(b) Authorize placement is a locked door facility or any other placement where my ingress / egress is substantially impeded.

(c) Authorize psychotropic drugs for the treatment of dementia.

(d) Authorize the use of physical restraints.

(e) Limiting or restricting my visitors or callers.

(f) Override or change any end-of-life decision I have made.

If I am ever diagnosed with dementia or any other chronic, neurological condition that is progressive and irreversible, I instruct my agent to demand non-pharmacologic comfort-focused care.

My agent is expressly precluded from authorizing the use of anti-psychotic, anti-anxiety, or hypnotic drugs. These drugs are not effective for treating dementia and have side effects, including possible death, that I wish to avoid.

I have determined that non-pharmacologic treatment that considers behavior as communication and focused on making me comfortable and happy, is best for my quality of life.

The provisions above are “cutting-edge” provisions that I recently obtained from CANHR. If you think you already have these provisions in your legal documents, think again. Finally, if you need assistance updating your Health Care Power of Attorneys, please contact my office at (310) 348-2995, and we will be happy to assist you.


Judd Matsunaga, Esq., is the founding partner of the Law Offices of Matsunaga & Associates, specializing in estate/Medi-Cal planning, probate, personal injury and real estate law. With offices in Torrance, Hollywood, Sherman Oaks, Pasadena and Fountain Valley, he can be reached at (800) 411-0546. Opinions expressed in this column are not necessarily those of The Rafu Shimpo.

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