Is it Legal to Use Force Against Nursing Home Patients?

Like hospitals, rehabilitation centers, and other medical facilities, nursing homes are strictly governed by a combination of state and federal laws such as the FNHRA (Federal Nursing Home Reform Act).  These laws have two purposes: they protect nursing home residents against violations of their rights, while simultaneously establishing levels of safety and care which staff and personnel must follow.

Needless to say, state and federal laws both strictly prohibit intentional elder abuse and caregiver neglect. Injuries caused by falls and severe bed sores (pressure ulcers) are some of the most common injuries involved in claims against negligent nursing homes.

But what happens if a resident poses a threat to themselves or another resident?  What if your parent or grandparent doesn’t want to enter a home?  Nursing home abuse attorney Brent Wieand explains

Can Nursing Home Residents Be Forcibly Restrained?

Under Pennsylvania law, all nursing home residents have “the right to be free from restraints.”  This includes “chemical restraints” or drugs (referring to over-medication and inappropriate sedation), as well as “physical restraints” (such as being held or strapped down).

Pennsylvania law permits the use of chemical and/or physical restraints only in situations where a licensed physician grants his or her approval on the basis of protecting the resident (or other people) from being injured.  Even then, chemical and/or physical restraints may only be used on a temporary basis: they are not meant to be used as an ongoing band-aid for a persistent problem.  If the resident consistently jeopardizes their own safety or the safety of others, they should be discharged and transferred to another facility which is equipped with adequate resources – not perpetually sedated or restrained.  That is a violation of Pennsylvania law.

Furthermore, 028 Pa. Code § 211.8 provides some additional rules:

  • Restraints cannot be locked.
  • Restraints must be taken off the resident for at least 10 minutes per every two waking hours.  When the resident goes to sleep, “the position shall be changed as indicated by the resident’s needs.”
  • Most importantly of all, “Restraints may not be used or applied in a manner which causes injury to the resident.” The law could not be clearer that resident health and safety should be a facilities primary concern.  If a resident is injured by a nursing home staff member, he or she can potentially file a personal injury lawsuit.

Like Pennsylvania, New Jersey also grants residents the right to be free from chemical and physical restraints, with exceptions for situations where the restraints are authorized by a physician in order to protect the resident or other people from harm.  In fact, most states throughout the U.S. observe similar laws and regulations, though the wording is slightly different from one jurisdiction to the next.  You can find out more about the laws where you live in our state guide to nursing home laws.

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I’m Worried for my Parents Safety.  Can I Force My Parent Into a Nursing Home?

It is worth addressing the fact that force is not always physical (or chemical).  Many families encounter a problem where their relative does not want to enter a nursing home, at which point legal force becomes necessary.

You cannot force your relative to enter a home unless you are expressly granted legal status as the individual’s guardian (creating a guardianship) or conservator (creating a conservatorship).  These legal arrangements are designed to let guardians and conservators make sound legal and financial decisions for people who are mentally or intellectually impaired by advanced age or a medical condition.

If your parent refuses to enter a nursing home, and you are worried he or she could accidentally hurt themselves, seeking a guardianship or conservatorship may be the right option.  An elder law attorney can help you navigate the steps of this complex legal process.

If you’re worried that your loved one is a victim of nursing home neglect or caregiver abuse, it is critical to get them out of the unsafe environment as soon as possible.  Don’t worry about “overreacting” or inconveniencing personnel employed by the home – the important thing is to make sure that your loved one is getting proper care.

About the Author: Attorney Brent Wieand is an experienced nursing home abuse lawyer. If you would like a completely confidential and free case nursing home injury or wrongful death case evaluation, call Brent Wieand at (888) 789-3161 today.  Brent is well-versed in the nuances of New Jersey and Pennsylvania nursing home malpractice laws, and may be able to help your family recover compensation if your loved one was injured or killed due to improper nursing home care.

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