Any doctor can make the decision for mental capacity

Many elderly patients get admitted to the hospital with profound weakness due to their acute and chronic medical conditions. Many of them will leave the hospital with profound weakness from their acute and chronic medical conditions (and unfortunately without a palliative care consult). In many situations, these patients will be too weak to take care of themselves.  They will need extra help with their activities of daily living either from family or from trained home health care representatives. Patients who cannot safely return to the community often need to transition through a nursing home (with skilled nurses) before returning home.  These are called skilled nursing facilities, or SNF for short (pronounced “sniff”).

If you’re going to a SNF, that means you’re going to a nursing home to receive a combination of physical therapy, occupational therapy, speech therapy or other therapies intended to get you back to the community.  This SNF status is paid for by the Medicare National Bank and your supplemental insurance for up to 100 days per benefit period.    There are many rules that must be met in order for Medicare to pay for these benefits, but that’s the subject of another discussion.

Let us say you or your family member has met the criteria to have their SNF benefits paid for by Medicare.  Let us  say the physical and occupational therapists at the hospital you have been admitted to  are recommending that you or your loved one transition to a skilled nursing facility upon discharge from the hospital because they do not feel you or your loved one can safely be discharged to home to provide self directed activities of daily living.    Let us say you or your family member does not want you to go to a nursing home or a SNF or an assisted living facility or anywhere other than home.

Can a hospital force a patient to go to a long term nursing facility or short term skilled nursing facility (SNF)?  The answer is no.  No doctor, no nurse, no physical, occupational or speech therapist anywhere in America can force you or your loved one to go anywhere you or they don’t want to go. If a patient wants to go home against the recommendations of their medical team, they have every right to go home, with one caveat.  They have to have the capacity to make their own medical decisions or have a surrogate decision maker allowing discharge to home against the recommendations of the medical team.

For many elderly folks, giving up their independence and being forced into a nursing home is their biggest fear.  If there are any elderly folks reading the Happy Hospitalist, remember, nobody can ever force you to go anywhere you don’t want to go, as long as you have the capacity to make your own medical decision.  Your doctor can’t force you.   Your nurse can’t force you.  Even your powers of attorney can’t force you.  If your family is telling you you have to go to a nursing home or skilled nursing facility and you don’t want to and you have the capacity to make that decision, no matter how poor that decision is, you have the right to go home against everyone’s wishes.  End of story.  Tell them to get lost.

However, if you have been deemed unable to make your own medical decisions because you lack the capacity to do so, and you have a powers of attorney (POA), your POA can force you to go anywhere they want you to go, whether you agree to it or not. Who makes the decision on whether you have the capacity or not to make your own decisions?

Scarily enough, any licensed physician can make that decision even though most physicians have never been formally trained in the process. Your hospitalist could make that decision.   Your family doctor could make that decision. Your surgeon could document your lack of capacity to be involved in your own medical decision making.  Even your dermatologist could deem you incapable of making your own medical decisions.  If there is any question, I usually get a specialist (psychiatrist or psychologist trained in this process) to document a patient’s capacity status.

If you do not have a POA and you have been determined to lack the capacity to make your own medical decisions, then a court must establish a guardian through the direction of family guidance.  If you do not have any family for guidance, the court will assign a guardian for you, usually a lawyer who knows nothing about you.  Establishing a guardian is a court process that comes with expenses.  It is not free.  If you have no family, no POA and the hospital has to establish a guardian for you, and that guardian recommends a nursing home (which they will if the hospital recommends it), then that is the only circumstance where a hospital can force you to go to a nursing home or skilled nursing facility.

I implore everyone to get a POA.  If you’re in the hospital, you can get these forms from the hospital.  You can also find free POA forms off the internet.  Discuss your wishes with your POA so they will always make decisions for you that are consistent with your wishes should the time come someday that you can not.    Otherwise some family member may force your doctors to resuscitate your decomposing  body over and over again just to document your time of  death  past the  midnight hour  so they could collect one last VA disability check from your cold dead body.  Yes, that really happened to me.

Oh and one other thing.  If you are in a nursing home or skilled nursing facility and you want to leave them against the medical advice of your doctor, Medicare will pay for all care you received up to that point.  Don’t let anyone tell you that if you left, Medicare won’t pay for the care you already received and you may get a bill.  There is no truth to that statement.  You have nothing to worry about.  Nursing homes are not prisons.  You have every right to leave at any time, so long as you have the capacity to make that decision.  And if you don’t, your POA or guardian has every right to release you too without any risk of getting a bill for care already received.

Tamer Mahrous is a hospitalist who blogs at The Happy Hospitalist.

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  • Laurel Johnson

    Thank you! I’ve never heard a doctor say what you’ve said, & I have been on the front-line of DC planning and case management in the hospital & in PCP offices. One doesn’t hear that a patient was “forced” into SNF. Convinced, tricked, coerced, and manipulated are more common descriptions (for patients & families). And the threat of “Medicare won’t pay if you leave before we let you go”, is used often. When the card is played to get the court involved for an urgent POA assignment, a factor is who pays for it. If there is money to be had, private guardians/case managers appear, when they know they will be paid. We have had multiple cases in the Portland, OR area with these situations, & they did not have good outcomes for respecting the patient’s wishes and patient’s quality of life (but boy did the court-appointed guardians make nice profits). For patients who cannot afford the court/guardian costs, Aging Service/Medicaid funding will not take the case because they can’t afford to — so no POA is assigned. In my experience, those patients either return to their former environment, if there are caregivers, or they get sent to an ICF because the patient cannot effectively resist. They become human beings lost in the shuffle. I am working as hard as I can for quality patient care, so I really appreciate and thank you for your advocacy.

  • Christina Girgis, M.D.

    I think this is a great point to be made, and I’m glad the author wrote most of this, but I completely disagree that POA can force a patient to do something (including SNF or NH placement) if he doesn’t have decision making capacity. Even patients WITHOUT decision making capacity can go home. We prefer they don’t…but a patient with let’s say, mild dementia, may not have decision making ability, and gets sent to NH–guess what, he can still walk out, wheel out, call a cab, leave….and will show back up in your ED within hours of discharge. Additionally, for patients who do not have decision making abilities, but do have the ability to say no (whether it’s appropriate or not), cannot be forced to do anything unless it’s an emergency.

    Sorry, even if the patient cannot consent, he still has to “assent” in order to get a procedure done, or be placed somewhere, etc. Show me a law that states otherwise.

    I’m a psychiatrist who does consults and this is a very common issue. Patient does NOT have decision-making capacity but is refusing (fill-in-the-blank–NH placement, amputation, blood transfusion, lab draws, head CT, chemotherapy, etc. etc.). If the patient is actively refusing, you cannot force the issue. This is different in patients with advanced dementia, who have supportive family/POA to make a decision, because they can’t consent, but are not actively refusing (because they don’t understand what’s happening). But with patients who can say no, this needs to be respected, even if POA disagrees or differs.