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Based on interview, record review and policy review, the hospital failed to follow their policy when they did not ensure a provider contacted a patient's legal guardian (a person appointed to take care of and manage the rights of a person who is considered incapable), for one discharged patient (#9) of one discharged patient reviewed, when significant medical information was discovered, a new procedure was ordered and informed consent was required. This failure had the potential to affect all patients who had a legal guardian and came to the hospital seeking medical treatment.

This failed practice resulted in noncompliance with 42 CFR 482.13 Condition of Participation: Patient's Rights.

Please refer to A-0131


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Based on interview, record review and policy review, the hospital failed to follow their policy when they did not ensure a provider contacted a patient's legal guardian (a person appointed to take care of and manage the rights of a person who is considered incapable), for one discharged patient (#9) of one reviewed, when significant medical information was discovered, a new procedure was offered and informed consent was required. This failure had the potential to affect all patients who had a legal guardian and came to the hospital seeking medical treatment.

Findings included:

Review of the hospital's document titled, "Informed Consent for Medical and Surgical Treatment or Procedures," dated 09/2022, showed an informed consent is a process by which a physician or an advanced practice practitioner (APP) provides adequate information to a patient or a patient's representative to allow the patient to make an informed decision about the proposed treatment, including medications, surgery or procedures to be performed by the person obtaining the consent. Prior to the procedure or treatment, the health care provider must disclose to the patient or representative in a manner and language which the patient or representative understands, all significant medical information the health care provider believes is necessary to make an informed decision whether to undergo the procedure or treatment. Informed consent should generally be obtained before each new medical and surgical treatment or procedure. Adults who do not have the capacity to provide informed consent may have a legal representative, such as a court-appointed guardian, give consent to care on their behalf. The physician would discuss the risks, benefits, alternatives and recommended treatment with the legal guardian.

Review of the hospital's policy, "Care of the Sexual Assault (sexual contact or behavior that occurs without consent of the victim) Survivor," dated 06/2023, showed staff was to obtain patient consent for an assault/forensic exam, and if the patient was unable to consent due to disability, the forensic examiner may obtain consent for the exam from an immediate family member.

Review of the hospital's undated education document titled, "Legal Guardian Frequently Asked Questions (FAQ)," showed a slide that directed staff:
- If a patient refused a forensic exam, the legal guardian could not override the patient's decision.
- If there was mental impairment of the patient, the legal guardian could consent to the forensic exam; however, they would have to stop the exam if the patient resisted or showed signs that they should not continue.
- A patient with a legal guardian could refuse the forensic exam and if they continued the exam in that situation, they would be re-assaulting the patient.

Although the FAQ education was provided to staff, it did not follow the hospital's policy for obtaining consent.

Review of the medical record showed Patient #9 was brought to the hospital by law enforcement for a wellness check after having eloped (when a patient makes an intentional, unauthorized departure from a medical facility) from the hospital four days prior. She exhibited bizarre behavior, pressured speech (rapid, compulsive talking, a classic symptom of bipolar disorder), aggression (behavior that is intended to harm another individual) toward the staff and disorganized thoughts (unable to connect thoughts and appropriately process problems). The legal guardian was contacted when the patient first arrived and she gave consent to treat and to discharge back to the nursing home where she had been living. Later during her stay the patient made two separate comments to a nurse about exchanging sexual favors for drugs while she was missing from the hospital. Her labs tests found that she had cocaine (a strong stimulant drug used as a recreational drug) and marijuana in her system. The staff offered the patient a sexual assault exam which would have included testing and treatment for sexually transmitted infections (STI, infections that are passed from one person to another through sexual contact) but the patient refused. When her course of treatment was finished, she was discharged back to her nursing home without any updates provided to the legal guardian regarding the statements about sexual activity in exchange for drugs or her refusal of the sexual assault examination.

During an interview on 02/27/24 at 11:00 AM, Staff MM, Nurse Practitioner (NP), stated that Patient #9 had eloped from the Emergency Department (ED) and was brought back by law enforcement. She arrived very agitated and refused all care initially. The patient eventually cooperated with a physical exam and later fell asleep. Her exam showed no signs of trauma such as pain, bruising or wounds. The patient had reported to a nurse that she had exchanged sexual favors for drugs during the time she was missing from the hospital. Staff MM stated it was difficult to determine if the things a psychotic patient said were credible. A Sexual Assault Nurse Examiner (SANE, a registered nurse (RN) or NP who has completed specialized training to assist sexual assault victims and collect all forensic evidence and perform exams) offered an examination to the patient that included testing and treatment for STIs. The patient refused that examination. Staff MM was unaware if the guardian was contacted about the patient's statements about sexual activity.

During an interview on 02/27/24 at 12:30 PM, Staff UU, RN, stated that he was the nurse who cared for Patient #9 when she was brought back to the hospital by law enforcement. Her flow of thoughts were disorganized and she was unable to give her correct name. She initially refused all care. The patient made two separate statements to Staff UU about exchanging sexual favors for drugs while she was missing from the hospital. Although her speech and behavior seemed incoherent, he considered these statements concerning enough and brought them to the attention of the NP and the charge nurse. The guardian was not contacted by Staff UU. He stated the guardian was primarily contacted by the social worker or the provider. He was not aware if the guardian was notified about the patient's reports of sexual activities.

During an interview on 02/27/24 at 2:08 PM, Staff VV, Social Worker, stated that she contacted Patient #9's guardian and received a consent for treatment when the patient returned to the hospital. This conversation happened before the patient had made any statements about sexual activities. They discussed consent for treatment and confirmed that the plan for the patient was to return to her nursing home when she was considered medically stable and at her psychological baseline. Staff VV stated that if there were concerns about the patient's refusal of medical treatment, the provider was responsible to contact the guardian to discuss how to proceed.

During an interview on 02/27/24 at 3:30 PM, Staff DDD, Psychiatry Resident Physician, stated that she conducted Patient #9's mental health evaluation. She was familiar with this patient from her previous inpatient admissions and believed the patient's behavior and mental state were consistent with her baseline. There was nothing in her evaluation to indicate the patient required inpatient psychiatric admission. The patient had not made any statements during her evaluation related to any recent sexual activity. She stated that if she made those kind of statements, it would have been difficult to determine if they were made coherently. She would not have automatically dismissed them if they were plausible. She stated that because the patient had a guardian, she was not capable of refusing treatment. The patient had tried to refuse medication during her previous inpatient admissions and the medical providers had to contact the guardian to guide their management.

During an interview on 02/28/24 at 09:50 AM, Staff SS, ED Director, stated that the expectation of guardian consent for SANE exams was different than other types of procedures. SANE staff were educated that they could not perform this procedure on a patient who was refusing, even if they lacked the capacity to make their own medical decisions and their guardian wanted the procedure done. Staff SS stated that during the course of an ED visit the treatment plan could change frequently and updating the guardian with every status change was an unreasonable expectation of the medical staff. She stated that an allegation of sexual activity might have warranted notifying the guardian if it had been substantiated. She would have expected that the medical providers would have contacted the guardian when necessary, not the staff nurses.

During an interview on 02/28/24 at 11:00 AM, Staff PPP, RN, SANE Coordinator, stated that education from the Forensics Director given to SANE nurses stated that the SANE nurses could not proceed with an exam if the patient refused, even if their guardian consented. She stated that it would not have been her normal practice to contact the guardian if a patient refused an exam. The provider or social worker had the primary responsibility for communicating with the guardian.

During an interview on 02/27/24 at 9:00 AM, Staff AA, RN, stated that Patient #9 was exhibiting bizarre behavior, refusing care, using profanity and threatening staff. She appeared acutely psychotic and had made a lot of off the wall statements. Staff AA did not have any contact with the patient's legal guardian.


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