By: Christina Trueba, J.D. Candidate, May 2019, St. Thomas University School of Law.

Hubert Humphrey once said, “the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy, and the handicapped.” A recent study (“the study”) published by the Human Rights Watch found that 179,000 nursing home residents, with a form of dementia or Alzheimer’s disease, are being administered antipsychotic drugs. Antipsychotic drugs are approved by the Food and Drug Administration (“FDA”), to treat schizophrenia and bipolar disorders. Further, antipsychotic drugs have a “black box” warning from the FDA stating that the use of the drug by people with dementia increases the risk of death. The study also found that the antipsychotic drugs were administered without the informed consent of the dementia patients in order to make the residents easier to handle in understaffed nursing facilities. Informed consent is required by federal regulations, and involves fully informing the patient about their treatment, benefits and risks of the treatment, the nature of the alternatives, and their right to refuse treatment.

The most prevalent reason for administering antipsychotic drugs to patients that do not need them is for the convenience of the nursing facility’s staff. The drug is used to suppress disruptive behavior, which is usually the patient’s expression of pain or distress. The unnecessary use of medication may “constitute abuse under domestic law and cruel, inhuman, and degrading treatment under international law.” In 2012, the federal government implemented a program to reduce the administration of  antipsychotic drugs in nursing facilities and their efforts resulted in the drug being administered less than it previously was. However, the administration of antipsychotic drugs is still widespread.

These facilities administering antipsychotic drugs to the residents for staff convenience is a violation of the patient’s human rights. When a patient is in the care of a nursing care facility, the United States has a domestic and international legal obligation to protect the patient from being administered these drugs without their informed consent. Florida has codified the patient’s rights of informed consent in nursing facilities under Florida Statute § 400.022(j), stating that patients in these facilities will have the “right to be adequately informed of his or her medical condition and proposed treatment…[and] the right to participate in the planning of all medical treatment, including the right to refuse medication and treatment.” Although obtaining informed consent from nursing home residents with dementia can be difficult, facilities in the study made no effort to obtain informed consent from the patient or a health care surrogate before administering the medications in instances when it would have been feasible.

Centers for Medicare and Medicaid Services and state agencies need to focus on enforcing the right to be fully informed, which includes refusal of treatment, improving the lack of nursing facility staffing regulations, and enforcing the federal regulations specifically banning chemical restraints and unnecessary drugs. Additionally, attorneys in the field of guardianship as well as individuals chosen to be health care surrogates should take note of the type of medications that are being administered to their wards, and perhaps conduct research or speak to a doctor before consenting to the use of the drugs. As mentioned, obtaining informed consent may be difficult, but nursing facilities need to take the measures necessary to inform the patient or health care surrogate of all the risks involved before antipsychotic drugs are administered.

Penalties are in place for facilities administering antipsychotic drugs without the patient’s informed consent. In Florida, a facility administering the drugs without the requisite informed consent will be subject to punishments such as suspension, revocation of license, payment of fines, or a court order to increase staffing.