Community Services and Long-Term Care: Issues of Negligence and Liability. Case Examples


The Do-It-For-Me Case
Client Smith has lived independently in an apartment at the Golden Acres Senior Citizens Housing for six months. She is frail but manages to get along with provision of transportation, shopping, light housekeeping services together with monitoring her cardio-vascular condition. Two months ago she blacked out and was discovered by the housecleaning crew on their regular rounds. She apparently suffered no ill effects and after a visit to the doctor returned home. She had a repeat episode three weeks ago with similar results and then four days ago blacked out again. Dr. Pringle, concerned for her safety and well-being convened a meeting including Social Worker Fine, Nurse Bagley, from the VNA, Recreational Therapist Joy and Chief Housekeeper Clenly both of Golden Acres to discuss Smith’s removal from her apartment to a personal care home where she will have closer supervision. Pringle is genuinely concerned that Client Smith will suffer a blackout and die because she may not be discovered if this occurs over a weekend. He advances his arguments and the others go along. Pringle suggests that Smith be invited to this meeting to agree to a change in her care plan. Pringle, Nurse Bagley, Recreational Therapist Joy and Chief Housekeeper Clenly are wearing white uniforms. Social Worker Fine is wearing civilian clothes. When Pringle gently lays out the facts of her condition and suggests she move to a personal care home, Smith protests that she likes it the way it is and says, “if I die, well, then I die. I don’t want to go to any home.” Pringle reminds her of his concern for her and how he wants to continue giving her the same good care he has always given her, saying, “Have I ever given you bad advice? Would I do anything bad for you. Would Nurse Bagley ever hurt you? We’ve taken good care of you. And Chief Housekeeper Clenly’s crew has revived you three times. Imagine how they’d feel if they found you dead. Please, Mrs. Smith - do this for us…do this for me.”

Smith looks around her for an ally, and finding none says, “O.K. I guess you’re right. It’s time for me to make the change. You’ve all been very good to me.” Later that day Smith signs the consent forms modifying her care agreement. At all times Smith is well-oriented to time, place and person. Has Smith signed a valid informed consent?

Informed consent requires that the giver of the consent (1) comprehend the risks and benefits of alternative courses of action together with all other relevant information (2) be able to convey a decision, and (3) give the consent voluntarily. In this case, Smith clearly understands the risks and benefits, and is able to give or withhold the consent. However, there is serious questions about the voluntariness of the consent. To be sure, she was in no way threatened or coerced by any suggestion of deliverately inflicted harm, of withdrawal of benefits, or penalty of any sort. However, voluntary consent means that the person involved should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching or other ulterior form of constraint or coercion. Here, Smith, a dependent old lady was surrounded by people cloaked in the garb of authority; she was without anyone who would take her part. Her physician and others who had saved her life, not once but three times, were urging her to do something and if she rejected their urgings, she would put herself in the position of being an ingrate. The situation was one of being in an inherently coercive environment where a voluntary consent was impossible. This is particularly the case where the doctor-patient relationship is involved. This is a confidential relationship of the highest sort and the reaction of a client when confronted by her physician may preclude a truly voluntary stance. Understanding this suggests that caretakers should not, except in extraordinary circumstances, be those who urge the signing of consent forms. Where possible, an independent supporter should be available to assist an individual in making consent decisions.

The Forgetful Client Case
Client Smith is marginally oriented to time, place and person. He does not hallucinate but is increasingly forgetful and unaware of his condition and surroundings, although from time to time he is very much aware and reacts very appropriately to his situation. Seven months earlier when he became a channeling client and entered into the service and care arrangements (which included some health care services) he signed the necessary consent forms. It is generally agreed that at the time he signed them he understood what he was signing and what they implied. At that time, they were clearly valid consents. Now, he does not recall signing them, doesn’t recognize them when they are shown to him, and has no idea of what they signify. Are the consents currently valid and what is the impact of the passage of time on consents given earlier?

The threshold question is: Was the client, at the time he signed the consent form, capable of understanding the information provided to him by the case manager, physician, or other therapist regarding the risk of the procedure, and the nature of the procedure, and was the consent entered into voluntarily, without the presence of coercive atmosphere or actual coercion?

If the elements of competence, information and understanding of risk, and voluntariness are present, or at least were at the time of signing, the consent form may not be significant. However, this depends upon the length of time between the signing of the form and the time at which the question is raised.

Some consideration must be given to the current competence of the individual. It is not entirely clear under what circumstances an informed consent will persist into a period of incompetency. There is also the consideration that someone might well not remember signing a consent form at time 1, and being legally competent may decide at time 2 that he or she does not want to give consent. For example, a client may have signed a consent form in January of 1981 and may, in fact, have received treatment for some condition during January, February, and March. He goes into remission and is fine until January 1982. At that point he has a recurrence or activation of the disease, and forgets that he had given consent. In 1982, he decides that life is not worth living, that things have gone downhill, and that he would just as soon not have any treatment. He says to his physician or his agent, “Keep the doctors away. I don’t want any more treatment.” At that point it can be said that he has effectively revoked his consent knowingly and voluntarily. There is nothing to prevent others from trying to persuade him so long as they stay free of coercion or of producing a coercive environment. One must look at the facts of each situation. If the client is clearly disoriented and unable to give or withhold consent the previous consent may well be invalid.

The Reluctant Client Case
Client Smith is marginally oriented to time, place and person. He does not hallucinate and has periods of forgetfulness although he is often quite mentally alert. At the time he became a channeling client seven months ago, he was alert and was able to sign the informed consent papers, respond to the Baseline Assessment Instrument himself and agree to the care plan providing health services as well as homemaker assistance. He has stated that he no longer wants the health services and doesn’t much care for the homemaker coming around and snooping. Case Manager Good has visited Client Smith in an attempt to reassess his needs and his desires. What is the agency’s liability if services are withdrawn and Smith’s condition worsens as a result.

If the agency concludes that Smith is knowingly (even if unwisely) withdrawing consent and therefore withdraws services after clear efforts in person and in writing to secure consent, liability will not attach to the agency unless the agency was negligent in arriving at the conclusion. If the agency concludes Smith is not competent to give or withhold consent at this point it should contact family (or if none is available, the court) to initiate proceedings for incompetency and guardianship. Providing services in the meantime will not expose the agency to liability unless (1) the court finds that Smith was not incompetent; and/or (2) the services of the agency were furnished negligently and inflicted harm. In the case of (1), criminal liability may lie if the service involved physical contact with the client which may produce a technical battery, i.e., an unlawful touching.

The Hip Fracture Family Fracas Case
Client Smith suffers a fractured hip. After hospitalization, a care plan is worked out by the channeling case manager for Smith to return home and receive assistance from both formal and informal caregivers. Smith, a competent person, approves the plan. His adult son and daughter disagree feeling that he should not be alone at any time and that he should have the protection that 24 hour care in a nursing home provides. They warn the agency that if harm comes to their father they will hold the agency responsible. What should the agency do and what are its liabilities in the situation?

The primary considerations are what is in the client’s best interest, what is it the client prefers and the feasibility, reasonableness and prudence of the care plan. To some extent, it will depend upon the extent to which the care plan relies on the adult children for its success. If the care plan does not involve the adult children, then the wishes of the adult children would have to give way to the wishes of the competent self-determining client and be carried out without the cooperation of the adult children. However, if, for example, they are to provide a certain kind of service then obviously the wishes of the adult children would have to be taken into account, either through modification of the plan or a “renegotiation” of the plan. The agency will not be liable if the care plan was reasonable and prudent and reflects good practice related to the client’s circumstances.

The Hip Fracture/Guardian Case
Client Smith, a channeling client, suffers a fractured hip. After hospitalization, the channeling agency care plan provides for Smith to return home. However, Smith is now an adjudicated incompetent and has a court appointed guardian. Smith is delighted with the plan. His guardian disapproves of the plan believing it is in Smith’s best interests to be in a nursing home and refuses to sign the care plan. How shall the agency proceed?

The effect of a legal guardian depends on whether the legal guardian is a guardian of the person, the estate, or both. Some jurisdictions make a distinction while others do not. Where the care plan involves areas in which the legal guardian has the power to decide, then the wishes of the client must fall in the face of the wishes of the guardian unless the guardian is recommending something that is not in the best interest of the client. Here, what is required is the best effort of the agency/and or case manager to persuade the legal guardian to acquiesce in the elements of the care plan that the client wishes and which are reasonable, prudent and in the client’s best interests. But ordinarily, the legal guardian will have the last say in approval. The agency does have the option of going to the court that appointed the guardian to secure an order requiring the guardian to proceed with the care plan. However, this can be difficult, and courts which deal with guardianships, e.g., orphan’s courts and probate courts, may take very considerable persuading to issue such an order.

The X Marks The Spot Case
A care plan is worked out for Client Smith. As a result of the stroke Client Smith suffered, he is unable to sign his name but signifies his agreement with an “X”. Case manager Good has arranged for Smith’s son, John, to witness the signing. Can John sign the plan? Can John subsequently appeal the plan if he signs it?

Standard procedures in the Channeling Demonstration call for the client to sign the care plan as an indication of his agreement and consent. Legally, only the client or the client’s legal guardian can sign. In cases where clients are unable to sign the care plan, a witness is required. A witness can do nothing more than observe the signing of a paper by a client. The witness does not give assent and has absolutely no function beyond being able to say, “I observed Mr. Smith making his mark,” whether it is an X, a circle or a squiggle. Witnesses have no right of appeal, or for that matter, anything else. Their function is very limited. If the person was competent to sign the document, any kind of mark by him, (assuming that he is not capable of signing his name) is sufficient authorization. However, since X’s and squiggles are not readily identified, somebody must watch and say “I witness Smith making his X.” That is what will give validity to Smith’s mark.

If Smith had been incapacitated to the extent that he could not even make an “X” or a squiggle, his hand could have been guided. It is the client’s willingness rather than the physical act of signing that is witnessed.

The Collateral Case
In order to complete the Baseline Assessment, Client Smith suggests to Case Manager Good that she contact Client Smith’s daughter who will know all the answers to the financial questions. The daughter has been paying Smith’s bills and making deposits in his bank accounts for the last two years. This has been an informal arrangement. The daughter is feeling overburdened with her family commitments and her recent election to the State Senate. After answering Good’s questions, she tells Good to apply Smith’s savings to hiring a housekeeper for him. Is the agency/case manager liable if case manager Good follows the daughter’s instructions without discussing them with Smith.

Except for specified parts of the Baseline Assessment Instrument, assessors/ case managers can use information obtained from other individuals such as a clients’ adult children, physician, and others. We refer to these individuals as “collaterals” here. While collaterals are generally free to share such information that they may have, lawyers, physicians and clergyman may be constrained by client/patient communicant privilege unless a specific waiver has been obtained from the client. As a matter of respect for a client’s privacy, good practice dictates obtaining a client’s consent to make collateral contacts. In this case, the case manager received the client’s permission to ask his daughter specific financial questions. Collaterals who are not court appointed guardians, guardians ad litem, conservators, attorneys-in-fact or trustees for the client have no authority to commit a person’s property or person to a given course of action. An agency acting on specious authority of a collateral could find itself liable for harms suffered by a client resulting from such action. Thus, in this case the agency would be liable if it proceeded to commit Smith’s assets solely on his daughter’s say-so and without his authorization.

The Nursing Home Case #1
Client Smith suffers a hip fracture and, following an open reduction of the break and a two-week hospital stay, is placed in a nursing home after his son and daughter authorize the hospital discharge planner to do so. Smith protests mildly and is not presented with any consent forms. The case manager attempts to dissuade the son and daughter from placing Smith in a nursing home. Smith is competent, but acquiesces in the placement. The nursing home provides Smith with minimal care but no rehabilitation therapy to help restore mobility. Smith loses his ability to walk and becomes depressed and apathetic. His old friend Jones, angered at the neglect of the home, assists Smith in retaining a lawyer who now seeks to secure rehabilitation services for Smith and to return Smith to the community. Who is liable for damages for the harms to Smith? Suppose Smith had contacted the case manager and asked her to get him out of the nursing home or at least to get him legal representation. Suppose the case manager had been the initiator of the activities directed at returning Smith to the community.

This kind of case has not been adjudicated, or if it has, has not been reported. It would appear, however, that the hospital discharge planner acted without adequate authority, and together with the nursing home and the son and daughter might well be liable. Care must always be taken by an agency not to exceed the authority it has. All older people are adults, suffer no legal disability and are presumed competent. Sons and daughters, no matter how beneficient, do not have decision-making power simply by virture of the filial relationship. Acting on their say-so, without more, is decidedly risky. If Smith had contacted the case manager about getting a lawyer, the case manager should have tried to do so. Similarly, if Smith wants to return to the community and is a client of the agency, efforts to formulate a reasonable plan should be undertaken.

The Nursing Home Case #2
Client Smith trips on the staircase in her home and suffers a fractured hip. Prior to hospital discharge, Case Manager Good prepares a new care plan that permits Client Smith to return home. Despite a well designed care plan, Smith’s condition deterioriates to the point that she can no longer be cared for at home. Case Manager Good discusses the option of nursing home placement with Client Smith. Mrs. Smith is adamant that she will not go to a nursing home or any place other than her home. It becomes increasingly difficult for Case Manager Good to maintain Mrs. Smith at home as her health care needs escalate. Is the agency liable if it continues to provide case management services to Mrs. Smith with the knowledge that Mrs. Smith requires more care?

The issue here is whether or not Smith is competent to decide. If Smith is oriented to time, place and person, and understands, even in a most rudimentary way, the consequences of remaining at home, the likelihood of a finding of incompetence is not great. If the situation deteriorates, however, to the point where Smith’s behavior approaches the state’s legal standard of incompetence, then a petition may be filed in court for such a finding and appointment of a guardian. However, the agency should attempt to mobilize formal and informal resources which will honor Smith’s position. Smith has a right to make some foolish decisions, even to the point of refusing treatment which may be life-saving. If the agency continues working with Smith under the above circumstances of Smith being competent it will not be liable. A harder question is, “Can the agency walk away from Smith because she is intransigent?” The answer here is equivocal. It depends upon the past relationship with Smith, what the agency has undertaken to do, and the hard facts of the situation. The agency must take care not to place Smith in a position of danger simply because it is “fed up”. Negotiating situations like these involves the highest art forms of case management and will not involve liability issues when the agency has exercised high levels of care and effort.

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