This Article examines the provisions of The Omnibus Budget Reconciliation Act of 1987 (OBRA '87) surveying the case law as such that deals with the rights of patients in mental institutions to refuse psychotropic medication. The article focuses first on an analysis of the different substantive and procedural rights afforded to patients under state common law, state constitutions and the federal Constitution. It then proceeds to evaluate the impact of OBRA '87 on the rights of long-term care patients who refuse medication and choose to accept minimal administrative hearings instead of pursuing full judicial proceedings designed to protect those rights. Finally, this article evaluates the Long-Term Care Ombudsman Amendments to the Older American Act of 1965 and concludes that - unlike OBRA '87 - the amendments neither articulate a right of treatment refusal nor provide a cause of action to establish such a right. Thus, the effect of the amendments is only discernible with respect to state decisions that have implemented provisions under the Act as a condition for the receipt of federal funding. OBRA '87, on the other hand, enumerates specific rights for nursing home residents but leaves to the states the task of selecting those residents to whom they apply. Consequently, the applicability of OBRA '87 to a specific resident refusing treatment is contingent upon whether the individual has been deemed competent under pertinent state law. The conclusion of the article is that more legislative fine-tuning must be undertaken if the elderly in America are to be guaranteed protection of their dwindling bundle of rights. At best, present federal and state reforms are not only imbalanced but erratic. Even with civil monetary penalties, violations by nursing homes continue. Current OBRA '87 regulations are deficient in that they do not provide any civil remedies to residents for non-compliance. Decisive action must be taken to codify, and thereby validate, the medication refusal rights of nursing home patients.
George P. Smith, II, “Just Say No!”: The Right to Refuse Psychotropic Medication in Long-Term Care Facilities, 13 ANNALS HEALTH L. 1 (2004).