First, if this document represents “guidance” which DMAS intends to be able to reference as an authority, it should be appropriately formatted and legitimate authorship should be indicated. While there are a few examples of “guidance” documents posted which lack an indication of the above, most (even those produced by DBHDS) do show some indication of origin.
Second, while we may agree in principle with the premise of the presumption of competence, §64.2-2000 clearly defines an individual for whom guardianship has been established as an incapacitated person:
“Incapacitated person" means an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition.”
A provider who chooses to disregard the direction or decisions of a legally appointed guardian does so at their peril and significant risk of liability.
We can agree that if only one individual living in a group setting has specific dietary needs and physician’s orders for certain restrictions, that arrangements need to be made to protect the freedoms and flexibilities for others.
We can not agree that in the example of an individual who leaves the residence unaccompanied and who lacks the necessary skills for self protection that the provider should document the behavior over a period of time without taking immediate steps to try to minimize the opportunity for the behavior to occur. The conflict here is between the expectation that the individual has the right to place themselves at risk and the counter expectation that the provider must, in all cases, prevent injury or death.
Specifically, if Jane has a history of wandering away and lacks the skill necessary to protect herself, to identify her address or someone to call, to lack understanding about the danger of traffic or how to seek shelter, etc. the provider, upon admission, needs to have some steps in place to try to prevent that behavior. In addition, each event of “wandering” would minimally be reportable as a Level II incident of “missing” and if injury occurred would also be reportable as a Level II ER visit and/or serious injury.
Each of those reports requires a root cause analysis and specific mitigation strategies to be implemented immediately. A pattern of that behavior would certainly result in further investigation either by the Office of Human Rights, the Incident Management Unit or both and be labeled a “care concern” and failure to act to protect Jane would lead to either a corrective action plan or a reportable allegation of neglect or both.
The example for “Tom” is equally naïve – verbally counseling an individual on the dangers of having a visitor who is trying to sell drugs to the individual or his housemates or engage in any other illegal behavior, without notifying the police and taking active steps to bar that individual from the property is, I suspect, easily categorized as gross negligence.
Adding that Tom cannot have visits from his “friends” who have been observed attempting to deal drugs is hardly sufficient! I cannot imagine the type of explanation which would be offered in the root cause analysis for the ER visit for the use of a controlled substance when the provider was well aware of the risk and had documented same!
I also want to note that the recommendation for the individual with Prader-Willi does NOT follow the traditionally accepted protocols and should not be included here. As Prader-Willi is a genetic disorder and not a behavioral pattern, repeated weighing is generally not encouraged. Experience also tells us that encouraging other residents to keep food in their rooms is an invitation to injury as an individual with Prader-Willi lacks the ability to resist consumption of food and will, either by force or manipulation, seek to attain what is available.
If this document is finalized in its current format: