State Drafting Policy on Right-to-Die Cases

State officials are drafting guidelines intended to clear up confusion about when health inspectors should question a nursing home’s acquiescence to a dying patient’s decision to forgo medical treatment.

Despite recent court decisions that uphold a patient’s “right to die,” health inspectors have threatened to fine or prosecute nursing homes that obey the wishes of a patient or his legal guardian, according to lawyers representing nursing homes, physicians and patients who have gone to court to block state intervention.

The existence of the draft guidelines, which will be published in February, was revealed Wednesday during a hearing in Los Angeles Superior Court in a case involving a Reseda nursing home and a patient dying of Alzheimer’s disease.

At the hearing, Superior Court Judge Jack M. Newman ordered the nursing home, Convalescent Center of Reseda, not to use any means to artificially sustain the life of Jacob Cantor, a 75-year-old patient who in 1981 had signed a “living will” stipulating that he be allowed to die with no intervention.

Filed Suit

Lydia Cantor, the patient’s former wife and current legal guardian, had sued the nursing home in November to stop treatment. She also sued state and county officials because they allegedly were threatening to prosecute the nursing home if it acceded to her request.

The preliminary injunction granted Wednesday orders county and state health officials not to levy any fines or seek criminal penalties against the convalescent center for complying with Cantor’s request.

Deputy Atty. Gen. Earl Plowman argued that the court order enjoining health officials from penalizing nursing homes for obeying a request like that of Lydia Cantor was unnecessary because the guidelines would soon make it clear when civil or criminal penalties were appropriate.

Plowman, representing state and county health officials at the hearing, filed a deposition that explained the proposed guidelines. In the deposition, Paul Gould, the state health official who is writing the guidelines, listed two key points.

He said that any decision to withhold treatment is that of the patient and his physician, “not this department.” But he also said that once such a decision is made, a facility must still provide care for the patient “in accordance with applicable statutes” and correctly follow a physician’s orders. Any deviation could be investigated and result in penalties.

Newman rejected Plowman’s contention that it was unnecessary to include the health agencies in the court order. Until the new state guidelines for health facilities inspectors are in place, “it is appropriate to provide some guidance” through the courts, Newman said.

Rights Advocate

Richard Scott, Lydia Cantor’s attorney and a noted patient’s rights advocate, said Newman’s order was “a message loud and clear . . . that the people in the health-care bureaucracy need to be educated” on the state of the law regarding a patient’s right to refuse treatment.

During the hearing, he testified that a “huge revolution” has taken place in the medical handling of terminally ill patients over the last decade. The law is now “absolute” in its protection of a patient’s right to refuse any treatment, Scott said.

But during that same period, he added, state and county policy regarding a patient’s right to determine his own treatment--or lack of treatment--has “not moved an inch.”

The state Department of Health Services monitors the quality of care in nursing homes everywhere in California except Los Angeles County, where the county Department of Health Services monitors homes under contract to the state.

Bring About Action

Scott said that it has taken the Cantor case and similar lawsuits to force the state to begin drafting guidelines for its inspectors.

Virgil J. Toney, deputy director of licensing and certification for the state Department of Health Services, acknowledged that the lawsuits have put pressure on health officials to review their enforcement policy.

“There has been a lot of interest” in the right-to-die issue and “a lot of litigation, especially in the past few months,” Toney said in a telephone interview. “It seemed prudent to put together guidelines for our own staff.”