My question is following a physician order for a nursing home patient or simply doing whatever the resident asks right or wrong. New regulations from CMS have been upgraded promoting more resident rights however I always thought that they have the right to be safe and could not be given something that a professional would know that would cause harm. If they were given something that the MD had not given permission for them to have and harm came to that resident, who would be to blame? Would it make any difference if they carried any cognitive impaired diagnosis (i.e. dementia, psychosis, depression)?
For example the resident would like wine daily but the MD had said no. They said it was their right, an employee gave it to them after telling them the side effects and they died.
If a physician's order included no alcohol and an employee allowed alcohol the employee, and the facility, would be with little question, liable. The physician very likely knows quite a bit more than the employee about interactions between medications and medications that can in fact be toxic when alcohol is mixed.
I believe the answer to the rest of the largely hypothetical question will flow from this exmple.
This answer is offered for informational purposes only. It is not offered as, and does not constitute, legal advice. Laws vary widely from state to state. You should rely only on the advice given to you during a personal consultation by a local attorney who is thoroughly familiar with state laws and the area of practice in which your concern lies.
It is always a challenge to balance the rights of individual residents/patients against the duty of the facility to protect possibly very ill or persons with impaired judgment from harm when they elect to disregard medical advice. Overall, the right of a person to decide for themselves what they wish to do, unless that individual has been declared incapacitated or the facility staff has actual knowledge of the patient's inability to make decisions rationally. In such a case, the facility should pursue a guardianship immediately so there is someone who is clearly authorized to make decisions on behalf of the allegedly impaired person. Doctors are not gods. They do not have the right to impose their wishes upon anyone else. If a resident does not want, for example, to participate in dialysis anymore, that is their right, even if death will inevitably ensue from discontinuing that procedure. The facility should have policies in place which guide the staff in such situations. In my opinion, staff members finding a conflict between sound medical advice and what a resident wants should seek guidance from the court. Most facilities do not allow alcohol of any kind in the facility and that is spelled out in the contract of admission. There are very good reasons for such rules, such as the frequent incompatability of prescription medications with alcohol, and the fact that alcohol can sometimes cause inappropriate behavior, which can put other residents or staff members at risk. The contract of admission very likely spells out clearly that no alcohol will be consumed by the resident while on the premises and you should check that out first. Secondly, are there established policies about these things which the employee violated by giving in to the residents' demands. That too would be relevant. Third, what was the actual condition of the patient: did the patient have diagnosed dementia or impairment, was he/she seeing a psychiatrist or receiving medications which were not to be paired with alcohol use (almost all antidepressants and antipsychotics warn against mixing with alcohol of any kind). It may be a person's "right" to smoke too, but that does not mean hospitals tolerate it or nursing homes. A person's "right" to consume things that are clearly harmful to them has to be considered in light of the needs of the facility to avoid liability and protect all residents within it, including the complaining resident who feels like a daily drink should be granted. If they feel that way, and they are violating the policies of the facility, then the resident should move elsewhere. Your question cannot really be answered without much more information, a copy of the contract, and a better understanding of the patient's condition, the doctor's specific orders, and a copy of any facility policy on this issue.
