Can a doctor ignore a living will?

1 answer | Last updated: Oct 11, 2016
A fellow caregiver asked...

My mother (89) wants to die. She has living will. I gave the hospital permission to treat her. When she came back to herself after many antibiotics, I let her speak for herself. She said take it all off. She was sent back to nursing home. She has a MRSA colony in her nose. No sores. The doctor says she has to be treated because she has contagious disease plus viral meningitis. She would have been gone except for the treatment I authorized. Doesn't she still have the right to refuse treatment? What are her rights? We are in a small community and there isn't a choice of doctors in nursing home. She refused hospice although the nursing home thought she needed it.


Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Your mother's living will might not control this situation, but there should be a way to right the disturbing wrongs you describe.

First of all, it's great that your mother has expressed her wishes for medical care in writing in an advance directive"”also known as a living will. But keep in mind that advance directives take effect only in quite limited circumstances: Usually when a patient is close to death from a terminal condition or in a permanent coma and unable to direct his or her own care. It is unclear whether your mother's condition was this serious when she was hospitalized last time, or whether it is that serious now that she's back in the nursing home, but it doesn't sound to be.

Practically speaking, doctor often consult next of kin for advice"”as they consulted you when she was hospitalized. If her living will was in place when she was admitted, the doctors there would be legally obligated to enforce it if she qualified as having one of those serious conditions. And if their was a proxy or agent named to enforce those wishes, that person should have acted to do so.

Now that your mother is back in the nursing home, however, she has an even stronger ally on her side: the federal laws that regulate the quality of life and quality of care for nursing home residents. As long as your mother has the mental capacity to reason and direct her care, she also has the legal right to be fully informed about her care"”and to refuse treatment if she so chooses.

Nursing home residents' rights are set out in federal law: Most can be found in 42 CFR 483.10(b), which clearly states that "the resident has the right to refuse treatment."

If the nursing home is ignoring your mother's right to determine her own medical care, ask to speak with the facility director or medical director there"”and express your concerns. It will likely help the cause if you come armed with a little knowledge of the law on residents' rights mentioned above.

If you and your mother don't get a satisfactory reaction from the facility administrators, contact the ombudsman assigned to the facility. There should be information posted at the facility about how to contact this individual"”who is charged with lobbying for and helping protect resident rights. You can also find the individual assigned to your mother's facility through the National Long-Term Care Ombudsman Resource Center at www.ltcombudsman.org.