United States: Worcester Medicine Publishes, "The Uncooperative Patient And The Least-Restrictive Protection Approach"

Last Updated: July 25 2018
Article by Peter J. Martin, Esq

It is a dilemma inherent in caregiving: what to do when a patient disagrees with what appears to be the obviously correct treatment decision? Inpatient facilities can suffer significant financial losses when a patient refuses care but cannot legally be transferred to another facility. One Massachusetts hospital faced this issue in a case decided by the Massachusetts Supreme Judicial Court on May 11, 2018, Guardianship of D.C., which offers helpful guidance on the scope of authority of both courts and guardians.

In January of 2016, the 79-year-old D.C. was admitted to the hospital with a hip fracture but refused to have corrective surgery or to take any medications. D.C. also presented with acute renal failure, pancreatitis and cardiac issues; she underwent a coronary bypass and a mechanical heart valve replacement. At the end of January 2016, the hospital petitioned the court for appointment of a guardian with specific authority to admit D.C. to a nursing facility. A temporary guardian was appointed in February and extended in March, but the guardianship lapsed in June. The hospital then went back into court in July with a new guardianship petition, stating that, in the SJC's words, "D.C. was an incapacitated person in need of guardianship based on her insistent refusal of medical care." A different judge held a trial at the hospital in September of 2016 and issued an opinion in November of 2016 that D.C. was not incapacitated. The judge wrote that D.C. was "demanding, difficult, obstreperous and plainly refused to assist or participate with various medical care personnel" but was not incapacitated, and therefore, a guardian could not be appointed for her. Nevertheless, the judge allowed the hospital's request that D.C. be transferred to a skilled nursing facility, finding that an acute setting was no longer required for her.

Presumably at this point, the hospital, armed with the judge's ruling about a SNF transfer, contacted appropriate facilities. One can only wonder what those facilities made of the judge's ruling, which fell short both of an appointment of a guardian with authority to consent to a transfer and of a direct order that such a transfer take place. Now, some 10 months after D.C. was admitted to the hospital, it moved for clarification of the judge's order.

The judge reiterated the finding that D.C. was not incapacitated. He also denied the hospital's requests that the judge appoint a guardian with authority limited to consenting to a SNF, or alternatively, that the judge issue an order regarding the hospital's authority to transfer D.C. to a SNF. Instead, the judge reported three questions to the Appeals Court. Before that appeal was heard, the hospital filed yet another petition for guardianship, and on Nov. 8, 2017, the judge found D.C. to be incapacitated and appointed a guardian with authority to admit D.C. to a nursing facility. One can presume that D.C. was then transferred to a suitable facility, some 21 months after being admitted to the hospital.

This sad saga left the hospital struggling to find recourse to get its patient the appropriate care in the right setting, with the patient being uncooperative but not legally incompetent. The three questions posed to the Appeals Court reflect three alternative forms of recourse. First, should a finding of incapacity be made, can a guardian without specific authority to do so admit the patient to a nursing facility? Second, can a limited guardian be appointed with authority to admit to a nursing facility if the patient is not deemed incapacitated? Third, can a probate court order a patient who is not incapacitated to be transferred to a nursing facility?

The SJC answered all three questions in the negative. However, with respect to the first question, the court stated that once there is a judicial finding of incapacity and a further finding that transfer to a nursing facility is in the patient's best interest, then a guardian can admit the patient to the nursing facility, even if the patient objects. (The best interest finding can be omitted for short-term nursing facility admissions, but only if the incapacitated person does not object.) This answer clarifies what had apparently not been entirely clear under the new Massachusetts Uniform Probate Code (MUPC), which went into effect in 2009. The need for such clarification is suggested by the fact that the SJC took the initiative to consider the questions posed to the Appeals Court. The Court stated that there had been little opportunity to provide guidance on the new statute and a matter of "significant public importance." While the SJC did consider the particular questions posed, it is significant that it did not consider "the legal options available to an acute care hospital where a patient who is not incapacitated fails to leave upon discharge."

In addressing the three questions, the Court described the process of obtaining a general guardianship. That process includes consideration of the appropriateness of a limited guardianship in an effort to "encourage the development of maximum self-reliance and independence of the incapacitated person," in the words of the statute. In a Prefatory Note to the MUPC, this is called the "least-restrictive protection approach." Given this background, it is not at all surprising that the SJC would answer all three questions posed to the Appeals Court in the negative. In each case, the maximum feasible autonomy of the patient is furthered by requiring a best interest finding for an incapacitated person, and requiring in every case a finding of incapacity, prior to a nursing facility admission.

Inpatient facilities faced with situations such as D.C.'s might not, in appropriate cases, have to opt for the lengthy and frustrating guardianship process described above. There is still the option of discharging patients against medical advice, although that, too, can be troubling. In any event, caregivers need to remember that an "insistent refusal of medical care" does not mean that the patient is legally incapacitated. And, as much as caregivers want to provide care, even to the "demanding, difficult, obstreperous" and uncooperative patient, sometimes the legal system's insistence on the least-restrictive approach means caregivers have to let patients make bad decisions for themselves.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions