Nursing Homes and Power of Attorney

Over the years as an EMS Medical Director, one of the most common command calls I get revolves around nursing homes, also known as skilled nursing facilities (SNF). This might involve the use of a 911 ambulance for an apparent non-emergent issue, the patient refusing transport and the SNF demanding transport, or a family member with a power of attorney. I am going to share some thoughts on these topics. This will generally pertain to New Jersey, but most of the concepts are valid anywhere. Also keep in mind that I am not an attorney.

Private Ambulances

SNFs often have a contract with private ambulance transports to do their routine transfers, such as going out for a test or for a procedure. However there is no standard regarding how quickly they can be available. For scheduled events we hope they are on time and fortunately the SNF rarely calls 911 to transfer a patient to radiology for an ordered study.

Now if the patient has a fall, new complaint such as shortness of breath, abnormal vitals etc, then the SNF will want to send the patient to the emergency department for evaluation. While there is nothing to prevent the private ambulance to do these transports, the time for them to arrive often becomes an issue. I think most would agree that a patient on blood thinners that falls and hits their head should not wait an hour for the private ambulance to arrive. Thus 911 is called. We can be upset that the private service is taking this long, but I do not agree with this concept. This is a bonafide emergency. If we were called to a residence for this patient we would not gripe about it, and does not the nursing home patient deserve the same level of care?

Other things to consider: do you want a private ambulance going lights and siren through your town? Some agencies care and some do not. Services that bill often at least at the administrative level are less concerned because they can bill and get revenue for the transport, so I often see these complaints more from non-billing services. But in my opinion, these patients are residents of your community and they deserve the same level of care.

If the patient is being sent to the emergency department them it is not unreasonable to consider the call and emergency (I know they are not always – I assure you I get more SNF patients with minor complaints in my ED) and just do the transport. It is not worth it for the staff EMTs to argue and delay the transfer.

Patient Refusing

OK so next is the call were the SNF patient is refusing to go to the hospital. This really is no different than any other refusal in terms of the things we have to determine. Just because a patient is admitted to a SNF does not mean they lose their rights. At the same time be aware that older patients in nursing homes are more fragile than someone that lives at home. We need to fully assess the patient and make some determinations.

One is, is there actually an injury? One facility I am aware of has a policy that if the patient falls they must go to the hospital even if they have no apparent injury. We often see this in adult day care or autism settings. Now this might be reasonable in a non-verbal patient where the assessment is limited. And remember, at SNFs it is usually a nurse assessing the patient who would prefer a physician to make the call. In the event of a non-verbal patient, I suggest just doing the transport and letting your administration address this policy afterwards.

Now can the patient refuse? Yes, if they have the capacity to do so. This applies to all patients. Capacity is a clinical determination. The patient must exhibit:

  • The ability to communicate a choice
  • Understand relevant information as communicated
  • Appreciate the significance of the information to their own circumstances
  • Use reasoning to arrive at a specific choice

In essence, they must understand the risks and benefits of their actions.

Example: A patient falls out of bed and hits their head. They don’t want to go to the hospital. They state they understand they might have bleeding in their head and this could cause further injury or death, but they simply do not want to be transported, and if they have a bleed so be it.

We may not agree with this decision but it is theirs to make. I would do a full assessment including a neurological exam, relay my findings and suggestions to the patient. Determine the above bullet points and then accept the refusal. You can call medical command for confirmation as well – we may not change their mind but it shows you did everything you could. And document everything.

Now how does the SNF accept this? Not very well usually! But we need to calmly explain that we agree the patient should go but she still has rights to refuse and we cannot restrain and tie her down and take away those rights. If she changes her mind or her condition worsens then call us back. ‘But the doctor ordered it!” The best response is “I understand but the doctor is not here. If he/she wants to come to the SNF and sedate the patient to facilitate transfer then they can do so.” Be professional. You can call medical command to assist in explaining this as well.

What if you determine the patient does not have the capacity? Well in that case you are within the scope of practice to try and force transport but I usually say stop if the patient truly starts fighting you. While the next step is often to call law enforcement, but lets face it, the cop is not going to cuff up a 90 year old. Imaging the public outcry at that image! I try to explain that to new docs, that their order doesn’t just make things happen. If the patient is going to really fight you then there is little we can do.

Power of Attorney

The last issue I will discuss is when someone, often a family member, states “I am their power of attorney and you have to transport them!”

First do your full assessment and try to get patient consent for transport. Then it doesn’t matter. If the patient is refusing as discussed above, then we need to determine some things.

Is the POA being discussed a “Durable Power of Attorney for Healthcare”? There are different types or POAs. Ask for a copy. If they don’t have it and the patient has capacity, calmly explain that without a copy we can’t even consider taking away the patient’s rights. If they have a copy, review it to the best of your ability to see if it makes sense.

The most important thing about a healthcare POA is that it generally only takes affect when the patient is unable to make their own healthcare decisions, as determined by the physician who has primary responsibility for their care. If the dispute continues, ask the SNF which doctor has determined that the patient cannot make their own decisions and when? Is it in writing? This will usually cause the SNF to pause if this decision has not been made. Also, even if they have made this determination, patient conditions often wax and wane. So it may not apply at this time.

After all of this, when it is explained to the SNF and/or family, there still might be some insistence to force transport. I find the best final statement is that we are not going to tie down the patient if they are going to fight us. While we may agree with everyone, risking further injury to the patient or staff is not appropriate. They should try to continue to convince the patient to go for evaluation.

Summary

These are complicated cases for all involved. Squad Chiefs should address problem facilities ahead of time to help their crews. Supervisors being available to respond is ideal and the benefit of a larger or regionalized system (something I am strongly in favor of.). Medical Command can be called to either talk to the patient or the staff and family. Be professional. And understand that one day you might be in the position of either the patient or the family member that is watching their loved one deteriorate medically.