Roush III: Missed Opportunity and Unintended Consequences

I posted twice before on the Roush case. Click here and here for the background.

In short, the issue in this case is: When a person who has previously created a patient advocate designation is deemed unable to make their own medical decisions by two doctors, then revokes that patient advocate designation, are that person’s rights to make their own medical care decisions (a) immediately restored or (b) suspended until a court decides whether they can make their own decisions or whether a guardian needs to be appointed to make those decision for them?

By implication, the Court of Appeals, in an unpublished decision, came down on the side of “immediately restored.” The losing party then sought review from the Michigan Supreme Court, which took the matter seriously enough to request that the Elder Law and Disability Rights Section of the State Bar file an amicus brief, which they did; as did other interests including the Michigan Elder Justice Initiative.  This past Friday (May 6), the Michigan Supreme Court denied leave to appeal, leaving the Court of Appeals opinion in place.  For the moment, at least, a win for the “immediately restored” camp.

Michigan’s patient advocate law is curious in that it expressly provides that:

… even if the patient is unable to participate in medical treatment decisions, a patient may revoke a patient advocate designation at any time and in any manner by which he or she is able to communicate an intent to revoke the patient advocate designation. If there is a dispute as to the intent of the patient to revoke the patient advocate designation, the court may make a determination on the patient’s intent to revoke the patient advocate designation. If the revocation is not in writing, an individual who witnesses a revocation of a patient advocate designation shall describe in writing the circumstances of the revocation, must sign the writing, and shall notify, if possible, the patient advocate of the revocation. If the patient’s physician, mental health professional, or health facility has notice of the patient’s revocation of a patient advocate designation, the physician, mental health professional, or health facility shall note the revocation in the patient’s records and bedside chart and shall notify the patient advocate. MCL 700.5510(d)

It seems the Michigan Supreme Court would have done us all a favor by taking the case and clarifying the law on this point. Now the issue of when that revocation occurs, and what the responsibilities of the various parties are, remains illusive.  All we have is an implication, based on an unreported case that arose in the context of a motion for summary disposition.

I wonder about how institutions may react, and whether there will be unintended consequences of the Supreme Court’s decision to take a pass.

For instance, what if I run a facility that cares for persons with cognitive impairments, and one of my residents has been deemed unable to make their own medical treatment decisions, and that resident has been admitted to my facility by their patient advocate, and then what if that resident says “I want to go home”? Is that expression alone a revocation of the patient advocate designation triggering the patient’s right to leave? Or does the person have to actually say the magic words “I revoke my patient advocate designation?” Is “I want to go home” enough to trigger the obligation of the staff person to report the incident as contemplated by statute? Enough to require a hearing so that a “court may make a determination on the patient’s intent to revoke the patient advocate designation.”

If I am the facility facing the possibility of a false imprisonment lawsuit (which is how the Roush case started), I might want to act out of an abundance of caution. I might want to make sure no family member later testifies in a lawsuit against me that: “My mother told the staff she wanted to go home, and they kept her against her will.  I heard her say it in front of the staff several times.”

So, do facilities start demanding guardianships over all their impaired residents again, rolling back twenty years of progress? Do plaintiff’s attorneys start looking for these cases? Maybe I am thinking too much, which I admit I can do sometimes. But with family dynamics the way they are, and with care facilities in a defensive posture, as they are, I’m not sure.

So, in any event, to my way of thinking, by deciding not to take this important case, the Michigan Supreme Court missed an opportunity to help clarify this confusing area, and provide some direction the both the families and facilities that are trying to care for our loved ones.