A Patient Refuses Best Medical Advice. What Should I Do?

Carolyn Buppert, MSN, JD

Disclosures

March 05, 2019

Question

A nurse practitioner who works in a long-term care facility asks about legal issues stemming from patient noncompliance with a provider's orders and plan of care.

A patient has lingering dysphagia following a stroke. His current diet order calls for thickened liquids; however, he doesn't like thickened liquids and asks for thin liquids instead. A speech therapy evaluation concludes that he is aspirating thin liquids. Patients in this facility have the right to refuse recommended diets. I've asked for an "against medical advice" waiver stating that he has been instructed about the potential risk (death) of a thin-liquids diet. The nursing home has declined, stating that the patient has the right to refuse a medical diet and should be allowed to have thin liquids. This requires an order from me, but without a waiver, an order allowing thin liquids leaves me as well as the facility liable for any harm that may come to the patient. What are my legal obligations in this matter?
Response from Carolyn Buppert, MSN, JD
Healthcare attorney

I understand that you are worried that your order (for liquids and not specifically thickened liquids) would be considered an error if the patient aspirates. With appropriate documentation, however, your diet order will be taken in context if the worst-case scenario happens.

First, check the evidence for your assertions about thin and thickened liquids. I am not an expert on dietary orders or aspiration, but when I did a quick literature search, I found support for thickened liquids and also some experts who questioned that approach, especially when the patient prefers thin liquids and will take in more fluid that way.

I don't know of any evidence that suggests that if a patient who has been ordered thickened liquids drinks thin liquids and aspirates, it is a suicide attempt. If you think the patient might be suicidal, assess him for suicidal ideation, document that assessment, and plan accordingly.

Let's assume that thick liquids are preferable, medically, for this patient. The next question to ask is: Is the patient competent to make his own decisions? If so, then he has the right to refuse. Your responsibility is to inform him of the best diet according to the evidence, the rationale for your recommendation, and the potential bad outcome if he rejects your recommendation.

A document that the patient signs, acknowledging that he is knowingly rejecting medical advice, is protective of you and the facility; however, if you document what you recommended and why, that you informed him of the risk of rejecting your advice, how he responded, and that he is competent to make medical decisions, your note should cover you if he aspirates, the outcome is bad, and the family decides to sue.

Regarding what your dietary order should say, perhaps you could write, "Thickened liquids; if patient refuses, then thin liquids may be offered." That way, he would have to make up his mind again, every day.

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