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By implication, the Court of Appeals, in an unpublished decision, came down on the side of “immediately restored.”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.

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Roush II: The Plot Thickens

A little drama is stewing in the elder law world.

I wrote about the Roush case when it came out. Click here to read that post appropriately titled “This Could Get Interesting.”

Since then, the matter has been taken up by the Michigan Supreme Court. And the MSC requested that the Elder Law Section of the State Bar file a brief setting forth what they believe the correct result should be.  That was done.

Awkward. Now some of the very same Section Council members who voted for the brief to be submitted (or at least chose not to vote against it as it was unanimously approved), are wondering if they made a mistake – as other advocates in the aging community are suggesting that the position taken in the Section’s brief interprets the controlling law in a way that is less than stridently protective of individual rights.

No Man’s Land. The issue  – and it’s an important one – comes about because Michigan’s patient advocate designation (“PAD”) law has long been recognized as unique (surprising even) in its express direction that a person can revoke their PAD even if they lack capacity to make their own medical decisions.  That is, even after two doctors have triggered the patient advocate’s authority by certifying that the patient lacks the ability to understand the implications of their own medical treatment decisions, that patient may nonetheless revoke the authority of the patient advocate.  The question in Roush is:  So what then?  What happens during the period after a person who has been deemed unable to make their own decisions revokes the PAD – and before a Court can appoint a guardian (or at least decide if one is needed)?  Is the person to be given all their natural rights to accept or reject medical care, as any competent person would have?  Or are their rights frozen until a Court decides who is in charge – themselves or someone else?  What’s a hospital (or in this case, nursing home) to do?

Many advocates would say the rights of that individual are restored in full. But the Elder Law Section’s position, as argued in the brief, is that those rights are not restored until a Court says so.

The Section’s brief was prepared by our very capable colleague Jim Steward and his colleague Angela Hentkowski (a very excellent lawyer in her own right). Click here to read the brief.

Oral arguments are scheduled for March.

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This Could Get Interesting

The Michigan Supreme Court is considering a case involving the issue of a medical provider and Michigan law regarding surrogate decision-making. Specifically, Margaret Roush was a resident of the Laurel’s of Carson City, a skilled nursing facility. Click here for Court of Appeals decision.

Ms. Roush had nominated a patient advocate. On October 24, 2012, that nominated patient advocate agreed that Ms. Roush should remain in the facility’s care. However, a dispute arose as to whether that nominated patient advocate’s authority had been properly invoked (that is, whether two doctors had certified Ms. Roush unable to make her own decisions). The resulting retention of Ms. Roush continued until November 21. In the intervening period, two doctors did in fact find Ms. Roush unable to participate in her decision making, but additional medical evidence was also produced to support the proposition that Ms. Roush was capable of making her own decisions; and, importantly, on November 12, Ms. Roush formally revoked the existing patient advocate designation.

Ms. Roush was ultimately allowed to leave the facility, and died a short time later in her home.

The facility was sued for false imprisonment and intentional infliction of emotional distress, among other things, which claims arose out of the period during which Ms. Roush was forced to remain in the facility after the dispute arose, and after she revoked the patient advocate designation. The case was dismissed at trial court on summary disposition in favor of the facility/defendant. The Court of Appeals, in its unpublished decision, reversed the trial court, finding that sufficient questions remained to preclude summary disposition to the defendant. The Michigan Supreme Court is now considering whether or not it will review the decision of the Court of Appeals.

Wherever it goes from here, if nothing else, this case reminds healthcare providers of the sticky situations they can find themselves in when the laws regarding surrogate decision-making are not carefully adhered to. A few years back, many nursing homes were cited for failing to use the proper procedure to rely on a patient advocate’s direction. That is, they were commonly deferring to nominated patient advocates for medical decision-making, before and without having two doctors formally certify the patient as unable to make their own decisions. And all of this falls within a long history of the medical community refusing to accept the technicalities of the legal process whereby one person can make decisions about the care of another (surrogate decision-making).

 

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