Curious Consent Standards in Nursing Home Admissions

from Nursing Home Administrator's Blog:

Nursing home administrators face an unexpected ethical (and legal)
dilemma when admitting new residents to skilled nursing care. The
Nursing Home Care Act undercuts a traditional notion of informed
consent in such a way that many residents may be admitted to a nursing
home without ever consenting to treatment, or having a meaningful
surrogate consent to their treatment. This is clearly an issue of
nursing/medical ethics, as well as a font of potential legal liability
for providing unauthorized care.

American health care law is predicated on the notion of patient
autonomous-direction. Within this notion exist a number of inter-linked
rights: the right to self-determination, the right to give consent
before treatment, the right to information forming the basis of consent
and many others. Curiously, in senior care, as in perhaps no other
major area of American health care law, the status of patient
autonomous direction, especially with respect to consent before
treatment, is less sacrosanct, the exceptions more numerous. This is
especially true in the legal quagmire of involuntarily placing adults
in nursing homes.

I am most familiar with the Illinois Nursing Home Care Act and it
will thus form the background of this discussion, but the Illinois Act
is not dissimilar to Nursing Home Care Acts in many other states, at
least inasmuch as the acts address the issue of involuntary admission.
Clearly involuntary admission of a resident to a nursing home presents
moral and ethical issues most families are not experienced in dealing
with, not to mention attendant feelings of guilt for the family members
and likely betrayal for the patient herself. However, for the health
care provider, the nursing home, the struggle is a balance between
determining the self-interest rights of the resident and the interests
in rendering care.