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Ethical and Professional Liability Considerations for the Administrator: Incidents and Principles Carlotta Welles, MA,
OTR, FAOTA
SUMMARY.This paper follows the format suggested for the entire issue in each incident used. The content will focus on selected areas of the administrative functions of occupatibnal therapy at any level, functions in which there are particular professional ethical and liability constraints. Principles and guidel~neswill be provided which should enable the therapst to avoid the problems raised by these and similar incidents. Aspects of s u p e ~ s ~ oand n consultat~onwill be explored as will be dealing with standard care given by others and the safeguarding of the re utation of others. The incidents included under each major topic wi 1 be construed as having taken place in the same setting so that the reader may become better aquainted with the personnel in the program.
f
The subject of professional liability in health care is now so extensive that neither the author nor our readers can deal with it adequately in one paper. Therefore the chance to explore only a few important areas is welcome. They are important ones. Note how incidents seem simple at first, but as they are explained, many major concerns appear, requiring much more understanding and comCarlotta Welles was formerly Chairman of the Occupational Therapy Department at the Los Angeles City College. She is now retired but continues as a board member of the American Occupational Therapy Foundation where she serves as Chairman of its Investment Committee. Also Miss Welles now practices as a consultant in professional liability. This article appears jointly in The Occupational Therapy Manager's Survival Handbook (The Haworth Press, Inc., 1988) and in Occupational Thempy in Health Care, Volume 5. Number 1 (1988). O 1988 by The Haworth Press, Inc. All rights reserved. 119
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petence than was first apparent. Those wishing to explore further will find it helpful to research the references at the end of the paper.
SUPERWSZON AND CONSULTATION Occup Ther Health Downloaded from informahealthcare.com by Nyu Medical Center on 11/21/14 For personal use only.
Overview, Organization, and Participants
The setting is a large occupational therapy department in a teaching hospital. The department is administratively placed in the Rehabilitation Division. The administrative assistant there, Mr. White, is the contact for the occupational therapy administrator and assists with matters related to supplies, budget and insurance. The director, Dr. Young, is a new physiatrist who respects the occupational therapy department director and leaves her alone to run the department which she does well. The director of occupational therapy, Miss Allen, has a masters degree and is widely sought as a speaker and teacher throughout the profession. She has a capable staff led by her assistant, Miss Black, who is also a community consultant. They also conduct a large student education program in charge of Miss Clark, a diploma graduate and long time staff member. All personnel of the department are members of AOTA, are very dedicated to their patients and very hard working. INCIDENT 1 context
Miss Allen is invited to speak in a distant city and will be away for two days. She tells the Administrative Assistant in the Rehabilitation Division that she is going away for two days and he says, "Fine, have a nice time." No further arrangements are made. During her absence, her "office is covered" by Miss Clark. Miss Allen returns as planned having received a sizable fee plus all her expenses for her trip. At the end of the month Miss Allen receives her full salary check.
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Risks and Constraints
Miss Allen was paid twice for the same time. This practice is widely seen in some health professions and sometimes the attempt is made to justify it as a means of compensating for lower wages than are paid in comparable positions and luring experienced personnel to less well paying jobs. However, this practice can progress to the point where personnel are seldom available in their primary place of employment, thus seriously compromising their duties. Moreover, Miss Allen left her duties largely unattended to, as Miss Clark lacked administrative training and education and covered merely the "office" and attended to routine duties. Therefore, Miss Allen might have been legally responsible for any untoward events which occurred and which her presence and expertise presumably could have prevented. Questions
1. Should Miss Allen terminate her outside engagements? Should she return her fee? 2. Is there some better way for her to make arrangements to leave? Such as? 3. Who should be left in charge during her absences? 4. What untoward events might occur due to Miss Allen's position being inadequately covered? 5. What is Miss Allen's liability for her duties; can they be covered properly in her absence and how? Principles and Discussion
1. The Code of Ethics of the AOTA provides that double pay for the same time is not ethical practice for its members. It is emphasized that no administrator (OT or not) can give valid permission to abrogate the Code of Ethics of the profession. It is however quite appropriate for one to be reimbursed for all expenses related to outside engagements. 2. It is appropriate for professional staff to participate in outside engagements in the local and the wider community. It is stimulating for them to do so, it increases the recognition of occupational ther-
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apy and brings recognition not only to themselves but to their institution and their program. 3. The practice of making outside engagements for full-time personnel should be made a matter of policy in which various factors are considered. During an absence, all of one's duties must be assumed (covered) by personnel who are known to be specifically qualified to do so. This same principle applies to any staff who cover for others for any reason including vacations. It is excellent professional practice for staff to learn the jobs of each other as well as the jobs of supervisors, etc., by engaging in an organized educational program designed for the purpose. Promotions are usually given to those who are prepared for them. It may also be appropriate to limit the number of outside engagements/commitmentswhich may be made and by whom. 4. The matter of fees should be considered. Some possible provisions may include: refusing the fee, accepting the engagement (and the fee) on vacation time, or giving the fee to the employer. This is not a bad way to build a special fund for a department. 5. The duties of all personnel in an occupational therapy program should always be described in the job description of each position. Each individual then should perform the duties described without omissions unless some duties are not needed at the time. It is poor policy for anyone to overlook the full ramifications of the duties within his purview. This same principle applies to the department as a whole. Breadth of purview has often been defined and achieved in order to permit people to function fully and creatively to the extent of their individual competence. In the case of Miss Allen in the example given, some of her broader duties could not be adequately performed by Miss Clark. If Mr. White, the administrative assistant, had had to help out during her absence he might have decided that he should keep on doing so. It is axiomatic in administration that purview not adequately maintained or given away is purview lost. Additionally, purview competently fulfilled is purview gained. These are important principles for occupational therapy managers, as occupational therapists usually require a certain amount of breadth of freedom to function effectively.
Carlona Welles
INCIDENT 2
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Context
Miss Clark, the experienced OTR with a diploma education, had ,a well-developed expertise in treating brain injured children. Occasionally her help on special problems was requested by other community centers. On a consultation visit described in this incident, she evaluated a number of children, then demonstrated how to treat them using some new protocols which she had devised and used successfully but which were different from those used in the host center. Following this demonstration she reorganized all of that department's therapy supplies and departed. The therapists neither fully understood nor agreed with the new protocols; moreover now they could not find some of their therapy supplies. Risks and Constraints
When new methods are demonstrated without benefit or prior teaching, prepared printed materials and return demonstration, there is great risk that the new methods will not be carried out correctly and that patients may be damaged. Those consulted with may be annoyed, threatened andlor alienated, thus wasting the consultant's time. Questions 1. Should Miss Clark have accepted the assignment? 2. What is a consultant's legal responsibility in offering consultation in a health care setting? 3. How should a consultant prepare to do an effective consultation? 4. How should personnel prepare to profit from a wnsultant's visit? 5. Would some sort of follow-up to a consultation be valuable and if so, how might this be done?
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Principles and Discussion 1. The role of a consultant is to advise and teach, but he has no "line" role. In other words, he has no authoriv to employ, terminate, transfer, control or supervise anyone. The effectiveness of a consultant's service will be determined by the real validity of his advice which should be well researched and authoritative. Next it will depend on how well he teaches and on the clarity of his materials. 2. A consultant is legally responsible for the validity and authority of his teaching or advice. He may not give advice which is contrary to established professional standards or procedures unless it is understood that he is consulting from his own research. A consultant is not responsible for how his teachings are carried out since he does not assign duties to personnel, supervise nor evaluate the work of others. 3. A consultant should prepare teaching materials in advance for participants' use rather than having them rely on their class notes and recollections of what was said. When teaching is not involved, a memorandumheport outlining the advice given should be prepared and sent promptly. These steps are essential in order to avoid confusion over what the consultant thought was said and what others thought they had heard. Serious consequences can and do result from such misunderstandings. The obligation of personnel to accept and use the teaching of a consultant should be considered at the appropriate administrative levels. Such teachings may be considered as broadening and updating and to be used as needed or indicated. On the other hand, the institution or division may be contemplating the start of a new patient care service and has brought in consultants to prepare personnel for their new service. It will be remembered that in the final analysis the law requires the individual professional provider to get and maintain his competence for his particular duties. Competent consultants merit the attention of all concerned but cannot be used as the sole source of help in any professional growth program. 4. Supervisors and those who employ consultants (as in the incident described) are well advised to record the names of staff who receive the consultation. This should prevent the assignment of du-
ties to those who are presumably now qualified for such function by the consultation, but who in fact were not present during the teaching/demonstration.
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INCIDENT 3 (SUPERVISION AND PATIENTS' RIGHTS) Context Miss Daly who has just earned her OTR was recently an affiliating student in Miss Allen's department. While there she asked permission to copy a considerable number of the department's slides showing treatment of their patients (the department had secured permission to take each patient's photograph for teaching purposes). It was explained to Miss Daly that the slides had been made for their own teaching program in their Center and her request was refused. Miss Daly then just took their slides and had them copied anyway. Later she showed them widely to both professional and lay audiences. Often she explained that she did not have permission to use them but that it seemed alright to her to do so. The patients had been her friends and she was sure that they would not mind.
Risks and Constraints Patients have a legal right to have no one know that they are a patient in a given hospital and to have no one, other than caregivers, have knowledge regarding their diagnosis or other problems. They have the right to privacy regarding their physical person and regarding personal information about them. Therefore, the institution and the department which did not prevent Miss Daly from borrowing the slides nor get the copies of the slides returned to them, as well as Miss Daly herself, could be found guilty of having invaded patients' privacy. Moreover, the slides were, in a sense, stolen. ~ i s ~s a l ~ ~ both w a suntrustworthy and unethical in having taken the slides, copying them and having shown them to others, regardless of how she rationalized those actions.
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Questions
1. What was the supervisor's responsibility for Miss Daly's actions? 2. Could Miss Daly have just asked the patients in question if she could copy and use the slides in which they were pictured? Occup Ther Health Downloaded from informahealthcare.com by Nyu Medical Center on 11/21/14 For personal use only.
Why?
3. Could she have brought in her own camera and taken pictures of those she wanted? Why? 4. What principles should be followed in making photographic treatment records? 5. What are consent forms and who originates them? 6. When is oral and/or implied consent valid? Principles and Discussion
1. The question of the supervisor's responsibility for Miss Daly's actions is a complex one. First of all, an institution has the right and the obligation to protect its property. In this incident, it had an additional duty, namely, to protect the privacy of its patients. The duties of an institution are discharged by its employees, so the department and Miss Daly's supervisor shared the duty with respect to the slides. But was this an absolute or controlling obligation such as that of a prison guard who must prevent the escape of prisoners? We believe not. The department had an established policy about slides which they had explained to Miss Daly and they had refused her request. These practices conformed to accepted standards. Miss Daly had been sent to the center for clinical education by an approved school. They had the right to believe that she was honest and would not steal or do what she had been asked not to do. Occupational therapy supervisors of clinical students are educators. This is not the position of the prison guard. In principle, however, one follows the rule dictated by the great James Hamilton,' "Supervision is tightly controlling where difference is not permitted, and delegating where differences are permitted." For example, the care of narcotics is tightly controlled, but the care of slides is not, at present. 2. As previously suggested patients have a right to privacy for those portions of their physical person which may identify them.
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They also have the right to have no one other than their own caregivers have personal information about them. The law acknowledges however that information about a patient is an important resource in planning and providing for his care. Those giving that care are entitled to it for that purpose and may share it with other caregivers as well as seek information from them. No personnel should take home patient records nor discuss their patients in any identifiable way, outside of the various personnel who need information for the patient's care. 3. In spite of the foregoing, it is felt that photographic records have real value if they are used properly. It is often wise (and it may be an institution's policy) to secure a signed consent for photographing each patient who enters the treatment program. Consent forms are devised by appropriate attorneys but may be implemented by occupational therapy personnel. "Implied consent," which is given by willing participation, is usually adequate for consenting to treatment in occupational therapy, but not for photographs. 4. Occupational therapy has a general obligation to create public understanding about its services and there are many aspects of the service which may be talked about, even photographed and displayed. Such things as kinds of services offered and to what types of patients, uses-of equipment, program needs, resezrch behg done, success stories and even pictures of occuvational theravists in action all create interest and ~hderstandin~. The major constraints which will protect the rights of all concerned are that (1) proper consents are secured, (2) good occupational therapy be shown and described, (3) goals of occupational therapy be stressed rather than objects made or the program or the pitiable state of the patients.
RELA TIONSHIPS WITH COLLEAGUES AND OTHER PERSONNEL Overview, Organization, and Participants
This setting involves a large urban area with an occupational therapy curriculum, a number of clinical centers, some in specialized institutions, and the communities with encompass them. Miss Ellis is the Director of Occupational Therapy in one large govern-
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ment institution. One of her assistants is Miss Freeman who has also worked at another specialty institution in the same general community. The director of the occupational therapy curriculum is Miss Green who has a large staff and many students, some of whom are engaged in various research projects.
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INCIDENT 4
Context Miss Freeman spends a lot of time with her more involved patients and has developed very caring relationships with many of them. One day she said to one male patient, "I do wish you could be treated i-ospital (where she used to work). They did so much there for patients like you." Obviously Miss Freeman meant well and wanted only the best for her patient and did not foresee what might happen as the result of her statement. The patient told his wife about the other program which Miss Freeman had mentioned, then they went to the administrator of the hospital and demanded that he be transferred there. This action implied that both the present institution and his physician were giving him inadequate care; it damaged them both by implying incompetence. The patient was eligible for care only in his present hospital, not in the other one which was recommended. Miss Freeman, in spite of all her caring, was sternly disciplined and almost discharged.
Risks and Constraints One of the largest legal problems confronting occupational therapists is how to handle what appears to them to be substandard care as provided by others. The reverse is also true, others are often unable to evaluate occupational therapy correctly, believing that (1) that which is pleasant and attractive is good, (2) that which is pleasant and attractive is just that but not valuable or necessary, and (3) that which is painful or difficult is not helpful and is moreover "unkind." These misapprehensions by occupational therapists and by others about occupational therapy cause many problems. Loose talk occurs. Suspicions arise, people do not cooperate with others, some patients and third party payers are reluctant to pay for service. The
patient often suffers even though these problems arose because those who caused them sincerely believed they were "caring."
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Questions
1. What could Miss Freeman have done appropriately to possibly improve the patient's care? 2. What general principles should be followed in handling examples of what appear to be substandard care? 3. What were the rights of the institution and the physician which Miss Freeman damaged and how did she do it? 4. What other legal rights do the institution and its personnel have and how may they be easily abrogated (taken away) by an occupational therapist? 5. What precautions should be taken by occupational therapists to prevent abrogating the rights of others?
Principles and Discussion 1. Those who grow concerned with what they believe are examples of substandard care given by others to their patients should proceed cautiously. Their first effort should be to find out why things were done as they were, by contacting their own immediate supervisor, reading thoroughly the patient's history, attending clinics where evaluation and treatment planning takes place and tactfully inquiring about the treatment plans. The therapist does not share her concern with the patient involved. 2. In the final analysis, if the concerned therapist is not satisfied after the above inquiry, the concern, if serious, must not be just forgotten but must be carried forward. The courts have found a measure of shared fault (liability) in health care personnel who did nothing and allowed a patient to be damaged by someone else. Proceed quietly and objectively, in collaboration with a supervisor, to gather and record what was done, or not done, to whom and by whom and when, and what happened. Keep dated and signed copies of such reports and take them up the administration chain, to the medical director if necessary. Pay particular attention to avoid libeling (damaging the reputation is one of the ways) any personnel and the institution. All are entitled to be considered competent providers
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until proven otherwise. Those who are threatened by such a process often sue (initiate action) those whom they believe have damaged their reputation. Thus health care providers occasionally feel themselves to be "between a rock and a hard place" in their effort to achieve quality care. Therefore, individual professional liability insurance is essential for all providers. 3. The remaining legal rights of individuals: the right to privacy, the right to own property, the right to work, and the right to freedom from bodily ham, are well covered in the listed references. Discussion of them does not belong here.
INCIDENT 5 (MORE CONCERNED WITH PROFESSIONAL ETHICS THAN WlTZJ LIABIWTY) Context Miss Green, the director of the curriculum, liked to provide close control of her staff and students who are doing research projects in the community. She went directly to the Director of Public Relations in the large teaching hospital, where Miss Ellis is the Director of Occupational Therapy, to arrange with him for a research project to be done in that facility and supervised by herself and one of her assistants. She did this even though Miss Ellis had twice requested an appointment with her to plan such a program. Miss Ellis heard of Miss Green's plan only from the Director of Public Relations who called her immediately. Despite the fact that she had been planning such a program herself but knew nothing of Miss Green's plan she was very embarrassed to be caught off guard and uninformed. The PR department and other administrative colleagues appeared to feel Miss Ellis was somehow at fault for not having come to them with an already integrated plan for the program with the university. Miss Green then started her project in another hospital nearby without telling anyone at Miss Ellis' facility, further compounding the situation for them. Later Miss Green said she had intended no harm to anyone.
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Risks end Constmints
In this incident what can happen did happen. The reputation of the "in house" occupational therapy director was damaged even though she had done nothing wrong and had even tried to prevent what occurred. This happens sometimes in the best of programs. Furthermore, the institution lost a desirable collaborative program and was not pleased with the occupational therapy director from the university. Questions
1. What was wrong with the way Miss Green contacted the institution where Miss Ellis worked? If things are done with good . will doesn't that make it all right? 2. If Miss Green's rights were abrogated, what were they? 3. How should a program be operated jointly by two institutions to assure rights of each party? 4. What are the legal rights and obligations of each institution as they relate to a shared program? 5. Is a shared program really beneficial or an expensive nuisance to either or both institutions sharing either a researchlstudy or an educational program? Explain the constraints and describe how things might be managed to be mutually beneficial. hinciples end Discussioa
1. In our society all citizens have certain rights, as mentioned (1) the freedom from bodily harm, (2) privacy for their person and for information about them, (3) protection of their reputation, (4) ownership of property, and (5) to engage in work to earn a living. The health care delivery system may not abrogate any of these rights of either patients or personnel. Moreover, the institution as a corporation is entitled to some of these same rights concerning its reputation, its property and the right to collect its bills. 2. Codes of Ethics and law in health care have a primary concern with standards of practice and with conformance to these standards. Professional associations and educational institutions have a
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responsibility to prepare providers to function according to these standards and to assist in the maintenance and even the enhancement of professional competence. Professional providers are expected to inform themselves about these standards and ethics as well as about the law as it applies to them and their practice. If an "untoward medical event" should occur the courts are concerned with whether or not those involved did or did not conform to applicable standards. If it can be shown that indeed standards were followed then those who did so are usually not held responsible for the untoward result. Such a favorable outcome will depend on complete, accurate and objective records of what was done and what happened. The courts are more concerned with what was actually done rather than with the underlying intent or the goodwill with which it was done. Good intent and a caring manner are not enough by themselves. 3. It will be appreciated, however, that in the incident(s) in question, Miss Ellis did not lose her job nor receive an unfavorable evaluation report. She was not damaged to the extent that she was discharged, nor was it made difficult for her to find another position had she wanted one. Miss Green did invade Miss Ellis' professional work place without her knowledge and did attempt to start a program there. Both Miss Ellis and her colleagues in the institution believed that they would be operating this program and had a right to their belief. Miss Green's intrusion was not unlike that of the physician who on his own starts treating the patients cared for by another physician, without his knowledge. These practices are unethical. Note the difference here between law and ethics: for an event or case to be actionable in the courts someone must not only have failed below a standard but that failure must have been the probable cause of another person's injury. In a breach of ethics it is enough that such has occurred, based on the premise that conformance to ethical standards is an important component of professional practice. Based on another principle, that damage might occur if unethical behavior is allowed to continue, corrective or punitive action may be taken even though there did not happen to be serious injury resulting from the behavior in question. Herein lies an impor-
Carlotta Welles
133
tant responsibility of the ethical professions, including occupational therapy.
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CONCLUSION This paper has touched on some of the ethical and legal constraints which should guide occupational therapists in the performance of their roles. It is strongly emphasized that an occupational therapy service program in any setting can be successfd only when personnel are guided by the ethical and legal constraints applicable to their many relationships. It is of paramount importance that the rights of the community, the institution and colleagues, as well as those of patients, be known and granted. Review of the incidents and their implications demonstrates with striking clarity the many facets of occupational therapy function. Occupational therapists are not technicians who do assigned tasks, but are health professionals who see their roles with a global understanding which they are able to implement. The result is job satisfaction and quality care. REFERENCE 1. Hamilton J. Keynote Address. Workshop on Occupational Therapy Administration. Chicago, IL: The American Hospital Association.
SUGGESTED READINGS Principles of Occupational Therapy Ethics. Am J Occup Ther 38:799-802, 1984 , Edition. St Paul, MN: West Publishing Black HC: Black's b w D i c t i o ~ t y5th Co. 1979 Creighton H: Law Every N m e Should Know. Philadelphia: W B Saunders Co. 1979 al Hayf E and Hayt LR: Law of Hospital and Nurse. New York: ~ d s ~ i tTextbook
Co,1958 Welles C: The implications of liability: Guidelines for professional practice. Am J Occup Ther 2318-26, 1969 Specialization: Legal and administrative implications. Am J Occup 7her 33:118-119. 1979
-
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The Occuptioml Therapy Manager's Survival Handbook
Liability considerations in the occupational therapy practice environment. Occup Ther Health Care l(4): 35-45. 1984 : Ethics and Related Professional Liability. In Bair J and Gray MS (Eds): The Occupational Z'hempy Manager. Rockville. MD: American Occupational Therapy Association, 1985 Ethics and the Older Adult. In Davis L and Kirkland M (Eds): The Rok of Occupatio~l&mpy with the Elderly. Rockville. MD: American OccupaOccup Ther Health Downloaded from informahealthcare.com by Nyu Medical Center on 11/21/14 For personal use only.
tional Therapy Associalion. 1986
Ethical and Professional Liability Considerations for the Administrator: Incidents and Principles Carlotta Welles, MA,
OTR, FAOTA
SUMMARY.This paper follows the format suggested for the entire issue in each incident used. The content will focus on selected areas of the administrative functions of occupatibnal therapy at any level, functions in which there are particular professional ethical and liability constraints. Principles and guidel~neswill be provided which should enable the therapst to avoid the problems raised by these and similar incidents. Aspects of s u p e ~ s ~ oand n consultat~onwill be explored as will be dealing with standard care given by others and the safeguarding of the re utation of others. The incidents included under each major topic wi 1 be construed as having taken place in the same setting so that the reader may become better aquainted with the personnel in the program.
f
The subject of professional liability in health care is now so extensive that neither the author nor our readers can deal with it adequately in one paper. Therefore the chance to explore only a few important areas is welcome. They are important ones. Note how incidents seem simple at first, but as they are explained, many major concerns appear, requiring much more understanding and comCarlotta Welles was formerly Chairman of the Occupational Therapy Department at the Los Angeles City College. She is now retired but continues as a board member of the American Occupational Therapy Foundation where she serves as Chairman of its Investment Committee. Also Miss Welles now practices as a consultant in professional liability. This article appears jointly in The Occupational Therapy Manager's Survival Handbook (The Haworth Press, Inc., 1988) and in Occupational Thempy in Health Care, Volume 5. Number 1 (1988). O 1988 by The Haworth Press, Inc. All rights reserved. 119
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petence than was first apparent. Those wishing to explore further will find it helpful to research the references at the end of the paper.
SUPERWSZON AND CONSULTATION Occup Ther Health Downloaded from informahealthcare.com by Nyu Medical Center on 11/21/14 For personal use only.
Overview, Organization, and Participants
The setting is a large occupational therapy department in a teaching hospital. The department is administratively placed in the Rehabilitation Division. The administrative assistant there, Mr. White, is the contact for the occupational therapy administrator and assists with matters related to supplies, budget and insurance. The director, Dr. Young, is a new physiatrist who respects the occupational therapy department director and leaves her alone to run the department which she does well. The director of occupational therapy, Miss Allen, has a masters degree and is widely sought as a speaker and teacher throughout the profession. She has a capable staff led by her assistant, Miss Black, who is also a community consultant. They also conduct a large student education program in charge of Miss Clark, a diploma graduate and long time staff member. All personnel of the department are members of AOTA, are very dedicated to their patients and very hard working. INCIDENT 1 context
Miss Allen is invited to speak in a distant city and will be away for two days. She tells the Administrative Assistant in the Rehabilitation Division that she is going away for two days and he says, "Fine, have a nice time." No further arrangements are made. During her absence, her "office is covered" by Miss Clark. Miss Allen returns as planned having received a sizable fee plus all her expenses for her trip. At the end of the month Miss Allen receives her full salary check.
Occup Ther Health Downloaded from informahealthcare.com by Nyu Medical Center on 11/21/14 For personal use only.
Risks and Constraints
Miss Allen was paid twice for the same time. This practice is widely seen in some health professions and sometimes the attempt is made to justify it as a means of compensating for lower wages than are paid in comparable positions and luring experienced personnel to less well paying jobs. However, this practice can progress to the point where personnel are seldom available in their primary place of employment, thus seriously compromising their duties. Moreover, Miss Allen left her duties largely unattended to, as Miss Clark lacked administrative training and education and covered merely the "office" and attended to routine duties. Therefore, Miss Allen might have been legally responsible for any untoward events which occurred and which her presence and expertise presumably could have prevented. Questions
1. Should Miss Allen terminate her outside engagements? Should she return her fee? 2. Is there some better way for her to make arrangements to leave? Such as? 3. Who should be left in charge during her absences? 4. What untoward events might occur due to Miss Allen's position being inadequately covered? 5. What is Miss Allen's liability for her duties; can they be covered properly in her absence and how? Principles and Discussion
1. The Code of Ethics of the AOTA provides that double pay for the same time is not ethical practice for its members. It is emphasized that no administrator (OT or not) can give valid permission to abrogate the Code of Ethics of the profession. It is however quite appropriate for one to be reimbursed for all expenses related to outside engagements. 2. It is appropriate for professional staff to participate in outside engagements in the local and the wider community. It is stimulating for them to do so, it increases the recognition of occupational ther-
Occup Ther Health Downloaded from informahealthcare.com by Nyu Medical Center on 11/21/14 For personal use only.
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apy and brings recognition not only to themselves but to their institution and their program. 3. The practice of making outside engagements for full-time personnel should be made a matter of policy in which various factors are considered. During an absence, all of one's duties must be assumed (covered) by personnel who are known to be specifically qualified to do so. This same principle applies to any staff who cover for others for any reason including vacations. It is excellent professional practice for staff to learn the jobs of each other as well as the jobs of supervisors, etc., by engaging in an organized educational program designed for the purpose. Promotions are usually given to those who are prepared for them. It may also be appropriate to limit the number of outside engagements/commitmentswhich may be made and by whom. 4. The matter of fees should be considered. Some possible provisions may include: refusing the fee, accepting the engagement (and the fee) on vacation time, or giving the fee to the employer. This is not a bad way to build a special fund for a department. 5. The duties of all personnel in an occupational therapy program should always be described in the job description of each position. Each individual then should perform the duties described without omissions unless some duties are not needed at the time. It is poor policy for anyone to overlook the full ramifications of the duties within his purview. This same principle applies to the department as a whole. Breadth of purview has often been defined and achieved in order to permit people to function fully and creatively to the extent of their individual competence. In the case of Miss Allen in the example given, some of her broader duties could not be adequately performed by Miss Clark. If Mr. White, the administrative assistant, had had to help out during her absence he might have decided that he should keep on doing so. It is axiomatic in administration that purview not adequately maintained or given away is purview lost. Additionally, purview competently fulfilled is purview gained. These are important principles for occupational therapy managers, as occupational therapists usually require a certain amount of breadth of freedom to function effectively.
Carlona Welles
INCIDENT 2
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Context
Miss Clark, the experienced OTR with a diploma education, had ,a well-developed expertise in treating brain injured children. Occasionally her help on special problems was requested by other community centers. On a consultation visit described in this incident, she evaluated a number of children, then demonstrated how to treat them using some new protocols which she had devised and used successfully but which were different from those used in the host center. Following this demonstration she reorganized all of that department's therapy supplies and departed. The therapists neither fully understood nor agreed with the new protocols; moreover now they could not find some of their therapy supplies. Risks and Constraints
When new methods are demonstrated without benefit or prior teaching, prepared printed materials and return demonstration, there is great risk that the new methods will not be carried out correctly and that patients may be damaged. Those consulted with may be annoyed, threatened andlor alienated, thus wasting the consultant's time. Questions 1. Should Miss Clark have accepted the assignment? 2. What is a consultant's legal responsibility in offering consultation in a health care setting? 3. How should a consultant prepare to do an effective consultation? 4. How should personnel prepare to profit from a wnsultant's visit? 5. Would some sort of follow-up to a consultation be valuable and if so, how might this be done?
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Principles and Discussion 1. The role of a consultant is to advise and teach, but he has no "line" role. In other words, he has no authoriv to employ, terminate, transfer, control or supervise anyone. The effectiveness of a consultant's service will be determined by the real validity of his advice which should be well researched and authoritative. Next it will depend on how well he teaches and on the clarity of his materials. 2. A consultant is legally responsible for the validity and authority of his teaching or advice. He may not give advice which is contrary to established professional standards or procedures unless it is understood that he is consulting from his own research. A consultant is not responsible for how his teachings are carried out since he does not assign duties to personnel, supervise nor evaluate the work of others. 3. A consultant should prepare teaching materials in advance for participants' use rather than having them rely on their class notes and recollections of what was said. When teaching is not involved, a memorandumheport outlining the advice given should be prepared and sent promptly. These steps are essential in order to avoid confusion over what the consultant thought was said and what others thought they had heard. Serious consequences can and do result from such misunderstandings. The obligation of personnel to accept and use the teaching of a consultant should be considered at the appropriate administrative levels. Such teachings may be considered as broadening and updating and to be used as needed or indicated. On the other hand, the institution or division may be contemplating the start of a new patient care service and has brought in consultants to prepare personnel for their new service. It will be remembered that in the final analysis the law requires the individual professional provider to get and maintain his competence for his particular duties. Competent consultants merit the attention of all concerned but cannot be used as the sole source of help in any professional growth program. 4. Supervisors and those who employ consultants (as in the incident described) are well advised to record the names of staff who receive the consultation. This should prevent the assignment of du-
ties to those who are presumably now qualified for such function by the consultation, but who in fact were not present during the teaching/demonstration.
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INCIDENT 3 (SUPERVISION AND PATIENTS' RIGHTS) Context Miss Daly who has just earned her OTR was recently an affiliating student in Miss Allen's department. While there she asked permission to copy a considerable number of the department's slides showing treatment of their patients (the department had secured permission to take each patient's photograph for teaching purposes). It was explained to Miss Daly that the slides had been made for their own teaching program in their Center and her request was refused. Miss Daly then just took their slides and had them copied anyway. Later she showed them widely to both professional and lay audiences. Often she explained that she did not have permission to use them but that it seemed alright to her to do so. The patients had been her friends and she was sure that they would not mind.
Risks and Constraints Patients have a legal right to have no one know that they are a patient in a given hospital and to have no one, other than caregivers, have knowledge regarding their diagnosis or other problems. They have the right to privacy regarding their physical person and regarding personal information about them. Therefore, the institution and the department which did not prevent Miss Daly from borrowing the slides nor get the copies of the slides returned to them, as well as Miss Daly herself, could be found guilty of having invaded patients' privacy. Moreover, the slides were, in a sense, stolen. ~ i s ~s a l ~ ~ both w a suntrustworthy and unethical in having taken the slides, copying them and having shown them to others, regardless of how she rationalized those actions.
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Questions
1. What was the supervisor's responsibility for Miss Daly's actions? 2. Could Miss Daly have just asked the patients in question if she could copy and use the slides in which they were pictured? Occup Ther Health Downloaded from informahealthcare.com by Nyu Medical Center on 11/21/14 For personal use only.
Why?
3. Could she have brought in her own camera and taken pictures of those she wanted? Why? 4. What principles should be followed in making photographic treatment records? 5. What are consent forms and who originates them? 6. When is oral and/or implied consent valid? Principles and Discussion
1. The question of the supervisor's responsibility for Miss Daly's actions is a complex one. First of all, an institution has the right and the obligation to protect its property. In this incident, it had an additional duty, namely, to protect the privacy of its patients. The duties of an institution are discharged by its employees, so the department and Miss Daly's supervisor shared the duty with respect to the slides. But was this an absolute or controlling obligation such as that of a prison guard who must prevent the escape of prisoners? We believe not. The department had an established policy about slides which they had explained to Miss Daly and they had refused her request. These practices conformed to accepted standards. Miss Daly had been sent to the center for clinical education by an approved school. They had the right to believe that she was honest and would not steal or do what she had been asked not to do. Occupational therapy supervisors of clinical students are educators. This is not the position of the prison guard. In principle, however, one follows the rule dictated by the great James Hamilton,' "Supervision is tightly controlling where difference is not permitted, and delegating where differences are permitted." For example, the care of narcotics is tightly controlled, but the care of slides is not, at present. 2. As previously suggested patients have a right to privacy for those portions of their physical person which may identify them.
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They also have the right to have no one other than their own caregivers have personal information about them. The law acknowledges however that information about a patient is an important resource in planning and providing for his care. Those giving that care are entitled to it for that purpose and may share it with other caregivers as well as seek information from them. No personnel should take home patient records nor discuss their patients in any identifiable way, outside of the various personnel who need information for the patient's care. 3. In spite of the foregoing, it is felt that photographic records have real value if they are used properly. It is often wise (and it may be an institution's policy) to secure a signed consent for photographing each patient who enters the treatment program. Consent forms are devised by appropriate attorneys but may be implemented by occupational therapy personnel. "Implied consent," which is given by willing participation, is usually adequate for consenting to treatment in occupational therapy, but not for photographs. 4. Occupational therapy has a general obligation to create public understanding about its services and there are many aspects of the service which may be talked about, even photographed and displayed. Such things as kinds of services offered and to what types of patients, uses-of equipment, program needs, resezrch behg done, success stories and even pictures of occuvational theravists in action all create interest and ~hderstandin~. The major constraints which will protect the rights of all concerned are that (1) proper consents are secured, (2) good occupational therapy be shown and described, (3) goals of occupational therapy be stressed rather than objects made or the program or the pitiable state of the patients.
RELA TIONSHIPS WITH COLLEAGUES AND OTHER PERSONNEL Overview, Organization, and Participants
This setting involves a large urban area with an occupational therapy curriculum, a number of clinical centers, some in specialized institutions, and the communities with encompass them. Miss Ellis is the Director of Occupational Therapy in one large govern-
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ment institution. One of her assistants is Miss Freeman who has also worked at another specialty institution in the same general community. The director of the occupational therapy curriculum is Miss Green who has a large staff and many students, some of whom are engaged in various research projects.
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INCIDENT 4
Context Miss Freeman spends a lot of time with her more involved patients and has developed very caring relationships with many of them. One day she said to one male patient, "I do wish you could be treated i-ospital (where she used to work). They did so much there for patients like you." Obviously Miss Freeman meant well and wanted only the best for her patient and did not foresee what might happen as the result of her statement. The patient told his wife about the other program which Miss Freeman had mentioned, then they went to the administrator of the hospital and demanded that he be transferred there. This action implied that both the present institution and his physician were giving him inadequate care; it damaged them both by implying incompetence. The patient was eligible for care only in his present hospital, not in the other one which was recommended. Miss Freeman, in spite of all her caring, was sternly disciplined and almost discharged.
Risks and Constraints One of the largest legal problems confronting occupational therapists is how to handle what appears to them to be substandard care as provided by others. The reverse is also true, others are often unable to evaluate occupational therapy correctly, believing that (1) that which is pleasant and attractive is good, (2) that which is pleasant and attractive is just that but not valuable or necessary, and (3) that which is painful or difficult is not helpful and is moreover "unkind." These misapprehensions by occupational therapists and by others about occupational therapy cause many problems. Loose talk occurs. Suspicions arise, people do not cooperate with others, some patients and third party payers are reluctant to pay for service. The
patient often suffers even though these problems arose because those who caused them sincerely believed they were "caring."
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Questions
1. What could Miss Freeman have done appropriately to possibly improve the patient's care? 2. What general principles should be followed in handling examples of what appear to be substandard care? 3. What were the rights of the institution and the physician which Miss Freeman damaged and how did she do it? 4. What other legal rights do the institution and its personnel have and how may they be easily abrogated (taken away) by an occupational therapist? 5. What precautions should be taken by occupational therapists to prevent abrogating the rights of others?
Principles and Discussion 1. Those who grow concerned with what they believe are examples of substandard care given by others to their patients should proceed cautiously. Their first effort should be to find out why things were done as they were, by contacting their own immediate supervisor, reading thoroughly the patient's history, attending clinics where evaluation and treatment planning takes place and tactfully inquiring about the treatment plans. The therapist does not share her concern with the patient involved. 2. In the final analysis, if the concerned therapist is not satisfied after the above inquiry, the concern, if serious, must not be just forgotten but must be carried forward. The courts have found a measure of shared fault (liability) in health care personnel who did nothing and allowed a patient to be damaged by someone else. Proceed quietly and objectively, in collaboration with a supervisor, to gather and record what was done, or not done, to whom and by whom and when, and what happened. Keep dated and signed copies of such reports and take them up the administration chain, to the medical director if necessary. Pay particular attention to avoid libeling (damaging the reputation is one of the ways) any personnel and the institution. All are entitled to be considered competent providers
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until proven otherwise. Those who are threatened by such a process often sue (initiate action) those whom they believe have damaged their reputation. Thus health care providers occasionally feel themselves to be "between a rock and a hard place" in their effort to achieve quality care. Therefore, individual professional liability insurance is essential for all providers. 3. The remaining legal rights of individuals: the right to privacy, the right to own property, the right to work, and the right to freedom from bodily ham, are well covered in the listed references. Discussion of them does not belong here.
INCIDENT 5 (MORE CONCERNED WITH PROFESSIONAL ETHICS THAN WlTZJ LIABIWTY) Context Miss Green, the director of the curriculum, liked to provide close control of her staff and students who are doing research projects in the community. She went directly to the Director of Public Relations in the large teaching hospital, where Miss Ellis is the Director of Occupational Therapy, to arrange with him for a research project to be done in that facility and supervised by herself and one of her assistants. She did this even though Miss Ellis had twice requested an appointment with her to plan such a program. Miss Ellis heard of Miss Green's plan only from the Director of Public Relations who called her immediately. Despite the fact that she had been planning such a program herself but knew nothing of Miss Green's plan she was very embarrassed to be caught off guard and uninformed. The PR department and other administrative colleagues appeared to feel Miss Ellis was somehow at fault for not having come to them with an already integrated plan for the program with the university. Miss Green then started her project in another hospital nearby without telling anyone at Miss Ellis' facility, further compounding the situation for them. Later Miss Green said she had intended no harm to anyone.
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Risks end Constmints
In this incident what can happen did happen. The reputation of the "in house" occupational therapy director was damaged even though she had done nothing wrong and had even tried to prevent what occurred. This happens sometimes in the best of programs. Furthermore, the institution lost a desirable collaborative program and was not pleased with the occupational therapy director from the university. Questions
1. What was wrong with the way Miss Green contacted the institution where Miss Ellis worked? If things are done with good . will doesn't that make it all right? 2. If Miss Green's rights were abrogated, what were they? 3. How should a program be operated jointly by two institutions to assure rights of each party? 4. What are the legal rights and obligations of each institution as they relate to a shared program? 5. Is a shared program really beneficial or an expensive nuisance to either or both institutions sharing either a researchlstudy or an educational program? Explain the constraints and describe how things might be managed to be mutually beneficial. hinciples end Discussioa
1. In our society all citizens have certain rights, as mentioned (1) the freedom from bodily harm, (2) privacy for their person and for information about them, (3) protection of their reputation, (4) ownership of property, and (5) to engage in work to earn a living. The health care delivery system may not abrogate any of these rights of either patients or personnel. Moreover, the institution as a corporation is entitled to some of these same rights concerning its reputation, its property and the right to collect its bills. 2. Codes of Ethics and law in health care have a primary concern with standards of practice and with conformance to these standards. Professional associations and educational institutions have a
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responsibility to prepare providers to function according to these standards and to assist in the maintenance and even the enhancement of professional competence. Professional providers are expected to inform themselves about these standards and ethics as well as about the law as it applies to them and their practice. If an "untoward medical event" should occur the courts are concerned with whether or not those involved did or did not conform to applicable standards. If it can be shown that indeed standards were followed then those who did so are usually not held responsible for the untoward result. Such a favorable outcome will depend on complete, accurate and objective records of what was done and what happened. The courts are more concerned with what was actually done rather than with the underlying intent or the goodwill with which it was done. Good intent and a caring manner are not enough by themselves. 3. It will be appreciated, however, that in the incident(s) in question, Miss Ellis did not lose her job nor receive an unfavorable evaluation report. She was not damaged to the extent that she was discharged, nor was it made difficult for her to find another position had she wanted one. Miss Green did invade Miss Ellis' professional work place without her knowledge and did attempt to start a program there. Both Miss Ellis and her colleagues in the institution believed that they would be operating this program and had a right to their belief. Miss Green's intrusion was not unlike that of the physician who on his own starts treating the patients cared for by another physician, without his knowledge. These practices are unethical. Note the difference here between law and ethics: for an event or case to be actionable in the courts someone must not only have failed below a standard but that failure must have been the probable cause of another person's injury. In a breach of ethics it is enough that such has occurred, based on the premise that conformance to ethical standards is an important component of professional practice. Based on another principle, that damage might occur if unethical behavior is allowed to continue, corrective or punitive action may be taken even though there did not happen to be serious injury resulting from the behavior in question. Herein lies an impor-
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tant responsibility of the ethical professions, including occupational therapy.
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CONCLUSION This paper has touched on some of the ethical and legal constraints which should guide occupational therapists in the performance of their roles. It is strongly emphasized that an occupational therapy service program in any setting can be successfd only when personnel are guided by the ethical and legal constraints applicable to their many relationships. It is of paramount importance that the rights of the community, the institution and colleagues, as well as those of patients, be known and granted. Review of the incidents and their implications demonstrates with striking clarity the many facets of occupational therapy function. Occupational therapists are not technicians who do assigned tasks, but are health professionals who see their roles with a global understanding which they are able to implement. The result is job satisfaction and quality care. REFERENCE 1. Hamilton J. Keynote Address. Workshop on Occupational Therapy Administration. Chicago, IL: The American Hospital Association.
SUGGESTED READINGS Principles of Occupational Therapy Ethics. Am J Occup Ther 38:799-802, 1984 , Edition. St Paul, MN: West Publishing Black HC: Black's b w D i c t i o ~ t y5th Co. 1979 Creighton H: Law Every N m e Should Know. Philadelphia: W B Saunders Co. 1979 al Hayf E and Hayt LR: Law of Hospital and Nurse. New York: ~ d s ~ i tTextbook
Co,1958 Welles C: The implications of liability: Guidelines for professional practice. Am J Occup Ther 2318-26, 1969 Specialization: Legal and administrative implications. Am J Occup 7her 33:118-119. 1979
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Liability considerations in the occupational therapy practice environment. Occup Ther Health Care l(4): 35-45. 1984 : Ethics and Related Professional Liability. In Bair J and Gray MS (Eds): The Occupational Z'hempy Manager. Rockville. MD: American Occupational Therapy Association, 1985 Ethics and the Older Adult. In Davis L and Kirkland M (Eds): The Rok of Occupatio~l&mpy with the Elderly. Rockville. MD: American OccupaOccup Ther Health Downloaded from informahealthcare.com by Nyu Medical Center on 11/21/14 For personal use only.
tional Therapy Associalion. 1986
