Power of Attorney

So I've always heard the personal is political, and that has felt very true in my own life. I'm now learning that the medical is legal.

NACs are certified, not licensed, so there are many limits on what we are allowed to do, that is, our scope of practice. As one become licensed to do more advanced things, one takes on increasing liability. I'm not even licensed. But I am still at risk for tort claims, both intentional and unintentional. Assault or battery would be in the first category, neglect in the latter.

Battery means touching someone without their consent. If a patient or resident is a "no-code," or DNR, that means there is a do-not-resuscitate order in effect for them, and were I to find such a patient in respiratory or cardiac arrest and perform CPR, I would be engaging in battery.

It's all about consent, and that's trickier than I'd even realized it could be. OBRA, the Omnibus Budget Reconciliation Act of 1987, put into place all sorts of regulations regarding quality of life for residents of long-term healthcare facilities. Part of OBRA guarantees the right of such residents to having a fulfilling sex life, should they so choose. Such residents can include the mentally retarded and people with early-to-late-stage dementia. The mentally retarded, it's worth noting, can often be 6-year-old brains functioning inside of healthy adult bodies with all the normal hormones and desires you'd expect to find there. So here's where it gets weird: the mentally retarded, if they're on the same level of retardation, may have a sex life, and even procreate, and no-one can enforce that they be on birth control, unless their parents, say, have their power of attorney and have made such a decision. So Betty knew of two mentally retarded residents who had sexual relations that resulted in pregnancy. The woman had had her baby and her family took it and raised it. I guess the illegality of a healthcare facility interfering with or preventing such an occurence is the result of some combination of ADA (Americans with Disabilities Act) protection of the rights of the mentally retarded as citizens, plus their OBRA protections as residents there. However, mentally retarded patients of differing levels retardation may not engage in sexual relations with each other, because it's considered that the more severely impaired person is unable to give informed consent. But it's ALSO the case that as soon as someone has been diagnosed with dementia, even early-stage dementia, he or she is considered to be unable to give informed consent--so technically an institutionalized husband and wife on the same mental decline schedule couldn't share a bed (although clearly no pregnancy can result from their union). Yet I know this happens. I think there might be difficulties with conjugal visits, however. But Lord, wouldn't you want to just be able to cuddle with the person you'd spent 50 years married to, and to provide them physical contact and comfort? Ugh.

I found some of this pretty confusing. I asked Betty about it, and she said to prevent the situations that might result in non-consensual sex, you get to know the facility, its regulations, and its residents well, and you get to know who wanders. It seems to me that this must be such a different side of healthcare than that doctors experience or are trained for.

On another note, I related to Betty what Hazel had commented regarding what affects quality of care, that is, that the most important factor is the ratio of residents or patients to NACs. She said that is quite true, and that it is sort of regulated by law... OBRA has regulations for this ratio. But then she added something I didn't know: OBRA only applies to facilities that accept patients or residents on Medicare. I need to do a little research on what percentage of longterm healthcare facilities _don't_ accept such residents.

I wonder what unions or professional organizations might exist to help affect this ratio... I'm guessing that overall NACs are not a particularly politically radical or politicized group of workers.

One last note regarding legality: HIPAA, pronounced as though there were a female hippo, refers to the Health Insurance Portability and Accountability Act of 1996. It protects patients' and residents' privacy. Betty says she's heard people violating it constantly, because they'll discuss patients' conditions or situations in public areas such as cafeterias or elevators, where information can be overheard. She said that we should realize that the women two tables over could be the family members of the patient whose diagnosis we're discussing, and that maybe they haven't heard about it from the doctor yet. Ouch.