The Rights of Those Confined to Nursing Homes

By: John P. Scanlon & Dennis M. Lynch

PART I OF II

Across the state, there are hundreds of thousands of disabled people and elderly residing in nursing homes. These individuals are among the most vulnerable members of our society. Because of this they need to be protected from those who would do them harm. In Illinois, we have a comprehensive Nursing Home Care Act which provides all residents of nursing homes with certain established rights and simultaneously prohibits any form of abuse or neglect of the elderly, infirm or disabled. This article will address the rights that those in nursing homes have. Future articles will discuss the responsibilities of nursing home administrators and employees, and what happens when these rights and responsibilities are violated.

Constitutional Rights

First and foremost, a resident of a nursing home retains all of the rights guaranteed them by the Illinois and United States Constitution. This includes rights to free speech, to practice one's religion and to be free from an unlawful search. Specifically, upon request, and if necessary at the resident's expense, the administrator of a nursing home must make arrangements for the resident to attend religious services of the resident's choice. Conversely, no resident can be forced to attend any religious services or have any religious practices imposed on them.

The Right to Manage Your Financial Affairs

Also, residents are guaranteed a right to manage their own financial affairs. Of course, some residents because of physical or mental infirmity cannot manage their own affairs. However, like any other person, a resident must first be adjudicated a disabled person by a court, or voluntarily appoint another person manager of his financial affairs before he can lose his rights to manage his own finances. The mere fact that a resident is confined to a nursing home will not be sufficient to strip him or her of this right.

Physical and Chemical Restraints and Confinement

Another important right is the right not to be restrained or confined for the purpose of punishment or for the convenience of the homes personnel. This includes restraint not just by physical force, but through the use of drugs. Separately, the Act provides that no resident will be given unnecessary drugs, including excessive doses of an already approved drug. If restraints are used, a resident has the right to notify a person or organization of his choosing, including the Guardianship and Advocacy Commission. The Act further provides that a resident must be informed of this right once restraints are applied.

Restraints are to be used only as a last resort. Prior to their use, a consultation should be had with an appropriate health professional, and if possible, a trial of less restrictive measures should be used, or, it should be decided that such measures would not be practicable, given the physical or mental condition of the resident.

Again, there will be instances where it is necessary to restrain a resident to avoid harm to himself or others. The purpose of the Act is to ensure that this is the true need for the restraint, and not merely a tool for employees to use to avoid caring for the resident. Likewise, restraints should not be used to punish a "hard to care for" resident.

Visitors and Communication

All residents are also guaranteed the right to private and uncensored mail and telephone communication, as well as visitors. A nursing home must make sure that it is easy to receive mail, and that telephones are accessible to residents. Also, a nursing home must allow private visits at any reasonable hour, unless there is some medical impediment to a visit. Any medical impediment must be documented in the resident medical chart by his physician.

Additionally, a physician may order that a resident's mail be restricted or censored, but only to protect the resident or others from harm, harassment or intimidation. However, any letter to the Governor, members of the General Assembly, the Attorney General, judges, state's attorneys, officers of the Department of Public Health or attorneys cannot be read and must be immediately forwarded to the addressee. Likewise, any letter in reply sent from one of these officials or an attorney must immediately be delivered to the resident and cannot be examined by personnel at the nursing home.

These rights guaranteeing free communications with a resident are very important because without them, a nursing home could deny access to an abused resident using the guise of medical necessity.

The Right to be Discharged

Many people fear ever going to a nursing home because they are afraid they will not be released when they are ready to go home. The Act provides that a resident may be discharged from a nursing home once he gives written notice to the administrator, a physician or a nurse. Of course, if a resident has a guardian appointed that guardian's consent is necessary before a resident will be discharged.

The Right Not to be Abused or Neglected

Finally, no owner, administrator, employee or agent of a nursing home may abuse or neglect a resident. More importantly, if anyone associated with a nursing home becomes aware of such abuse or neglect they must report it to the Illinois Department of Public Health.Abuse or failure to report abuse can result in a facility losing its license as well as steep fines and even criminal prosecutions both for those who committed abuse and those who knew about the abuse but failed to report it. Additionally, the nursing home can be civilly liable for damages and attorney's fees.

The next article will more fully explore the duties a nursing home owes to its residents as well as the civil liability of nursing homes. Click here to read part II.