HospitalInspections.org

Based on a review of hospital policy "Informed Consent and Disclosure of Outcomes" (revised 8/16), and patient #2's record it was determined that the hospital failed to consult patient #2 or certify an incapacity prior to obtaining consent for a procedure from patient #2's sister-in-law.

Patient #2 was an adult with a developmental disability who presented to the hospital in late January 2017 due to aspiration, bowel obstruction, and acute renal failure. Patient #2 was intubated, though however, the patent was able to follow simple commands.

Review of hospital policy Informed Consent and disclosure of Outcomes, revealed in part, "Incapacitated Adult Patients" - If a patient is not able to give informed consent due to medical condition, medication, etc., consent may be obtained from the "next of kin in the following order or preference
- Court-appointed Guardian
- Health Care Agent (Power of Attorney by advance directive
- Spouse/Domestic Partner
- Adult children
- Parent
- Sibling
-Others who can attest to close relationship"

Patient #2's mother and sister-in-law were primary supports, and patient #2's mother was identified as having some cognitive deficits.

A consent for a thoracentesis on 1/30/2017 revealed a phone consent which noted "Spoke to POA, (Power of Attorney) Daughter-in-law (daughter-in-law's name). Review of the record revealed no documentation of a POA, and no incapacity statement/s prior to obtaining this surrogate's consent.

On 2/1/2017, a physician note witnessed by an RN was entered in the record which stated in part, "(Patient #2) has capacity to identify a sister in law (sister-in-law's name) as ... medical decision maker. ... wishes her to assist ..... and, if needed, to make decisions for ....regarding ...health care ..." On 2/3/2017, an Important Message from Medicare was signed by patient #2's mother.

On 2/8/2017, a psychiatry consult revealed in part, "(Patient #2) has intellectual disability since childhood (IQ 50)" ...and, "(Patient #2) needs power of attorney due to ...... baseline cognitive deficits, ......sister in law reported that she is working on it. Our Hospitalist and medical staff need to consult with mother and sister in law regarding major decisions and document."

Based on all documentation, the hospital obtained consent from a surrogate who was not a POA prior to identifying patient #2's preference for health care decisions made by the sister-in-law rather than mother, and prior to certifying an incapacity for patient #2.