Counsel's Corner: The ‘Difficult’ Family Member: The Hospital Has Options

It is almost inevitable that hospital staff will come across the “difficult family member”—the relative or friend of a patient who, despite claiming to act in the patient’s interest, may be so disruptive that the care of the patient suffers. Further, the difficult family member may cause uncertainty if not outright chaos on the floor, impeding operations and disrupting care to other patients, exposing the hospital to liability and the risk of a black eye in the court of public opinion.

Recognizing that the family member is in an unfamiliar environment, worried about the patient and not sure what to expect, a first, common sense response should be a thoughtful and respectful conversation with the family member to understand his concerns and provide assurance that those concerns have been heard and addressed. In most cases, a dialogue with the family member will defuse the situation. When that fails and the family member’s behavior escalates and becomes disruptive or violent, an approach involving third parties may be necessary. This is particularly so when the disruptive behavior recurs.

While it is likely that every hospital already has experienced disruption by family members, too often staff are unprepared to respond to the next incident. They may be ill-prepared to respond to the demands and behavior of the difficult family member in a thoughtful step-by-step manner. Unclear about the rights of the organization or the rights of those who are confronted by the family member, the response is often ad hoc and opportunities to defuse stressful situations can be missed, leading to situations that could jeopardize care. The time to think about how the staff can respond is before they are in the midst of a highly charged emotional situation.

Staff must know beforehand that there is a way to address and define the situation, who to call for help, and be assured that they are not without support. Much of what can be done is common sense, but it is difficult to coolly and rationally know what to do when confronted by someone who is difficult and threatening. Well-developed policies and procedures that respond to a disruptive family member, or visitor, can help the hospital minimize the stress and confusion that could compromise patient care. Just as important, having a policy and procedure in place to rely on will help avoid inappropriate responses from staff that could exacerbate an already bad situation and lead to liability or a public relations disaster.

The hospital may want to develop a process for handling the disruptive family member that includes the following steps:

Document Behavior and Discussions.

An important predicate to any policy is an understanding that it is essential to fully document the behavior confronting staff and the steps taken in response to that behavior. Should any claims arise, the hospital will have a record of the nature and severity of the family member’s behavior that should help demonstrate that the hospital handled the situation in accordance with a carefully thought out procedure.

Support Your Staff.

Staff members need assurance that they do not have to tolerate disruptive behavior and that they have the hospital’s support. They should know that the hospital will call security and have the family member escorted off hospital property if his or her behavior becomes disruptive. They should also know that, if the behavior escalates further, the hospital will call the police.

Inform the Family Member, Verbally and in Writing.

The hospital should explain and document in writing that if the family member’s behavior interferes with the patient’s care, disrupts other patients or amounts to verbal abuse of hospital staff, the hospital will call security and have the family member escorted off the premises. Further, the hospital should make clear that any escalation is grounds for the hospital to call the police and have the family member barred from the hospital. A member of the medical or nursing staff should be present during this conversation to answer any questions about the patient’s clinical condition and course of treatment. The hospital also may want to talk to the family member in an area away from the patient, with individuals from social services and security present, as well as a chief nursing officer or someone with similar authority.

Report the Family Member’s Conduct to the Police.

The hospital should put the police on notice that a family member has been disruptive and threatening and there is reason to believe that the behavior is likely to recur. The hospital also should inform the police that it will not tolerate further incidents and will call them for assistance if needed. Stress that the family member is volatile and, should the hospital contact the police, the hospital is relying on them to take the situation seriously.

Report Threats to the Police.

If the patient reports threats made by the family member, treat the threats as legitimate and report those to the police as well. This is appropriate even if the claims cannot be substantiated or questions exist as to the patient’s mental competency. There are no risks in treating the patient’s report as legitimate until investigated by the appropriate authorities. However, there is substantial risk if a patient’s allegations are disregarded and someone is adversely affected.

Consider Barring the Family Member.

Depending on state law, the hospital may have a right to restrict or prohibit the family member from visiting. For instance, in California, a hospital can prohibit an individual from visiting if the hospital reasonably determines the individual endangers the safety of others or significantly disrupts hospital operations. Cal. Admin. Code tit. 22, §70707(17)(B). If the hospital decides to ban the family member, the hospital should notify security, reception and the ER so the family member can be immediately identified and escorted off the premises if he or she tries to enter. Should the family member disregard the hospital’s instruction, legal counsel should assess the situation and determine whether obtaining a temporary restraining order is an appropriate course of action.

Reach Out to an Ombudsman.

Although some ombudsman programs have been created for long-term care purposes, many states have such programs to deal with situations involving patients and problematic family members. Where available, program members are trained to step in to advocate for patients and may have constructive advice for the hospital.

What if the Family Member Has a Health Care Power of Attorney?

A health care power of attorney does not authorize the holder to abuse and disrupt staff. Even if the family member has been given the patient’s health care power of attorney or is otherwise a surrogate decision maker, having a conversation warning the family member of the consequences of his or her behavior is nonetheless appropriate. While the family member still has a right to be involved in the patient’s health care, the hospital should explain that the family member’s decision-making abilities are neither limitless nor absolute.

A health care power of attorney or other decision-making power cannot undermine the hospital’s ability to maintain a safe environment for patients, staff and others. As a result, the hospital is not bound to follow every nonmedical direction given. However, in the event the hospital imposes limits on requests made by the family member, the hospital should explain and document those limits. Depending on state law, the hospital may even decline to comply with the family member’s medical instructions, particularly if the decision is clinically inappropriate.

The hospital should follow relevant statutory or regulatory procedures if it declines to follow a decision by a family member holding a health care power of attorney. In Illinois, for example, when a health care provider is unwilling to comply with the holder’s decision, the provider must inform the individual and continue to render reasonably necessary care. If the holder of the health care power of attorney is not willing to accept the decision to refuse to follow his or her direction, the holder can arrange for the patient’s transfer to another provider. 735 Ill. Comp. Stat. 45/4-7(b). Responsibility for the transfer rests with the holder of the health care power of attorney. Id.

Address the Situation Early.

Immeasurable public relations damage can be done to the reputation of the hospital and individuals involved in a confrontation with a disruptive family member. Early identification of family members who may pose a threat and notification of the proper authorities can help contain the public relations damage as well as control the story.

Conclusion.

Disruptive behavior from family members or visitors can have real, adverse consequences for a hospital. There are steps however, that the hospital can take to prevent or minimize any adverse consequences. Those are only going to be useful if the hospital staff has policies and procedures that are thoughtfully prepared and documented before the need to address disruptive individuals arises.