Using Therapeutic Jurisprudence to Improve Nursing Home Regulation During Future Pandemics

Abstract

Therapeutic jurisprudence (“TJ”) is a school of thought suggesting that legislatures, regulators, attorneys, and judges consider the extent to which rules, laws, and procedures impact the psychological well-being of those upon whom the law acts. The desire for positive psychological impact should not be the only—or even the primary—consideration when weighing appropriate legal action using TJ. Rather, without limiting focus, TJ explicitly favors an interdisciplinarity approach and counsels us to “consult [other] disciplines, consider the law’s therapeutic or anti-therapeutic effects on those it affects, and, importantly, see if the other disciplines have solutions to offer to remedy any anti-therapeutic effects of the law.” If data about the law’s psychological effects or potential solutions does not yet exist, TJ scholarship can urge research in that direction.

COVID-19 provides an excellent opportunity for TJ analysis, for isolation and no-visitation policies within nursing homes produced loneliness and despair that resulted in sub-optimal physical conditions among patients. First, this Article will situate COVID-19 within a long line of pandemics, illustrating the need for preparation for the next one the world will encounter. Second, because this Article, in the tradition of TJ scholarship, will propose continued future monitoring and collection of medical and social science data, it will review the structure of nursing home regulation and trace its relevant development in the United States during COVID-19 for non-legal researchers in the relevant fields. Third, through analyzing “patients’ actual experiences . . . with physicians[,] . . . other care providers, hospitals, and other facilities,” this Article will discuss the demonstrable mental and physical harm regulatory policies inflicted upon residents in nursing homes, using Florida as a state-level exemplar. Finally, this Article will collect, analyze, and propose improvements for consideration during the next pandemic, for there surely will be a next pandemic. As both federal and Florida regulators recognized during COVID-19, their initial regulatory activities were so anti-therapeutic that their latter steps rather than their initial ones should be emphasized in the next pandemic, as long as doing so is consistent with the medical and public health evidence.

Note:
Funding Information: Professors Cerminara and Perez have received partial research support from the Nova Southeastern South Florida Geriatric Workforce Enhancement Program. Ms. Kirby has received no financial support for the research, authorship, and/or publication of this article.

Conflict of Interests: The authors have no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Keywords: therapeutic jurisprudence, nursing homes, public health, elderly, COVID-19

JEL Classification: I18, K32, I14, Z18, I31