Risk Management: Communicating with Family Members and Other Caregivers

| July 1, 2019

by Charles D. Cash, JD, LLM

Mr. Cash is Assistant Vice President at PRMS, Inc. in Arlington, Virginia.

Funding: No funding was provided for the preparation of this article.

Disclosures: The author is an employee of PRMS Inc., a risk management consulting company for healthcare providers.


This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. We invite questions from our readers. The answers are provided by PRMS, Inc. (www.prms.com), a manager of medical professional liability insurance programs with services that include risk management consultation, education and onsite risk management audits, and other resources to healthcare providers to help improve patient outcomes and reduce professional liability risk. The answers published in this column represent those of only one risk management consulting company. Other risk management consulting companies or insurance carriers may provide different advice, and readers should take this into consideration. The information in this column does not constitute legal advice. For legal advice, contact your personal attorney. Note: The information and recommendations in this article are applicable to physicians and other healthcare professionals so “clinician” is used to indicate all treatment team members.

Innov Clin Neurosci. 2019;16(7–8):35–37


Question

I work in a mid-sized behavioral health practice. We recently had a nerve-wracking situation in which a patient’s condition was deteriorating rapidly. I wanted to talk to the patient’s family and other caregivers about the situation. Unfortunately, the patient refused to authorize us to communicate with any family members. The treatment team was split on whether the patient’s authorization was needed to talk to others in this situation. Thankfully, the situation resolved when the patient agreed to voluntarily enter the hospital.

We’ve all decided that we should draft and implement a practice policy on communicating with patients’ family members and/or other caregivers, as well as address this topic in our continuing education. What risk management advice can you offer on this topic as we go forward to reduce our professional liability risk?

Answer

Psychiatric disorders often necessitate the involvement of family members and other caregivers to assist the patient in managing his or her condition. As such, effective communication between physician and caregiver is paramount to achieving optimal care. And, because family members are often the impetus to litigation following a less-than-desired outcome, effective communication is also an important step in minimizing liability risk. In fact, many lawsuits that involve ineffective communication include plaintiffs’ assertions that “…if only I had been told how serious the situation was, I would have done something.”

Address the issue of communication from the beginning. At the beginning of treatment, ascertain from adult patients their desires regarding family involvement. Suggest that one person be the one with whom you will primarily communicate, particularly if the patient has a large family. Ideally, this will be the person most directly responsible for the patient’s day-to-day care.

Family members caring for patients with significant psychiatric disorders face a number of stressors. On top of worries about their loved one’s health is the burden of providing care while also trying to manage their other personal obligations. This can lead to exhaustion, a sense of guilt for feeling burdened, and health problems for the caregiver, and any one of these can negatively impact a caregiver’s ability to communicate effectively with healthcare providers.

There is often a disparity between the information the family member/caregiver receives and the information the physician believes he or she is delivering.1 Caregivers might not feel that physicians are delivering all the information they want, while physicians believe they are providing the necessary information. The problem could be that, while the physician is, in fact, giving the caregiver information, this information is being presented in such a way that it is not being heard or understood by the caregiver.1 Other times, the problem could be that, rather than too little information being provided, there is information overload. Disease- and treatment-related information is often complex and can be difficult to comprehend for someone not in the healthcare industry. Feeling so overwhelmed that they don’t even know what questions to ask, some patients and families will keep questions to themselves and never get the needed answers.2  Consider the following tips on communicating effectively with family members:

Provide patients and family members with written information about the patient’s condition so that it can be reviewed in a more relaxed setting and be used later as a reference. The American Psychiatric Association has patient education brochures on various psychiatric disorders and their treatments, available at www.psychiatry.org/patients-families.

Be accessible, open, and forthright. Think of the patient and the family as a single unit of care.1 When the interdependencies of patient and family are taken into account when making treatment decisions, more successful treatment outcomes can be achieved.1

Make certain that caregivers understand the patient’s medication regimen and any potential side effects that might occur. In addition to putting instructions in writing, consider providing patients and their caregivers with medication information sheets, such as those available via the United States Food and Drug Administration (FDA) website, www.fda.gov.

Provide family members a list of resources, such as local hospitals or community outreach programs, that might offer caregiver support and education. If you can’t provide the training yourself, refer family members/caregivers to outside resources that offer behavioral management training to caregivers, to increase their confidence in providing care.1

Always try to direct comments to both the patient and the caregiver(s), even if the patient’s disease has progressed to the point where he or she can no longer effectively communicate treatment wishes. It can be extremely upsetting for both patients and family members when the patient is not included in the conversation and is talked about as if he or she were not present.

Let patients and caregivers know that most decisions do not need to be made immediately. Outside of emergencies, most decisions should be allowed time for consideration. This can help reduce stress. 

Recognize the hard work of the caregiver. Remember to check in with caregivers/family members periodically to ask how they are doing. They will likely appreciate your acknowledgment of the stress they might experience while caring for their patient.

Always follow the “Minimum Necessary” rule. A patient’s agreement that information may be shared with family members, even in emergencies, does not mean that you should necessarily reveal all information to the patient’s family. You should still consider the purpose for providing that information and what exactly is needed to achieve that purpose. This will vary depending on the patient’s level of competence, the nature and seriousness of the emergency, and the condition for which you are treating the patient. 

If you or your practice is a covered entity under the Health Insurance and Portability and Accountability Act (HIPAA), you will need to adhere to this requirement. Even if you or your practice is not a covered entity, HIPAA’s “Minimum Necessary” rule will provide good guidance on this best practice.3

When the patient is at serious, imminent risk of harm, first and foremost keep the patient safe. When treating high-risk patients, family members can be an important part of the treatment process. Make certain they understand their role in the patient’s care, such as ensuring medication is taken, providing a stable environment, and monitoring for danger signals. Family members should be provided with the knowledge and resources to perform these vital roles.

Should a patient’s condition deteriorate so that the patient is at significant risk of serious, imminent harm, you should do what is needed to keep the patient safe in terms of disclosing information, even if the patient has forbidden such disclosures. For example, for a patient at risk of outpatient suicide, you should consider discussing the issue with their immediate family members and/or caregivers, despite the patient’s wishes otherwise, especially when the risk is significant, family members/caregivers seem unaware of the risk, and family members/caregivers can contribute in a positive way to the patient’s safety. If you or your practice are covered entities under HIPAA, this potential use of patient information should be included in your Notice of Privacy Practices.

Documentation should reflect your exercise of professional judgment. Clearly document all communication with family members, just as you would with the patient. This includes informed consent discussions, telephone communications, and copies of treatment-related information, resources, or other relevant information given to them.If, in an emergency, you need to override a patient’s wishes regarding disclosures to family members and/or caregivers, make sure that your documentation about that decision reflects your risk-benefit analysis—in other words, carefully document how the benefit of making the disclosure to keep the patient safe outweighs the risk of not disclosing. This way, your documentation will demonstrate that you exercised professional judgment in making the disclosure to keep the patient safe.

A communication “plan” might already be in place. Sometimes, patients execute Psychiatric Advance Directives (PAD). PADs are essentially advance directives planned for mental health decisions. They might address communication issues or nominate a healthcare proxy. Psychiatric advocacy groups, such as the National Alliance for the Mentally Ill (NAMI) and Mental Health America support the use of PADs as a way to promote patient autonomy. The National Resource Center on Psychiatric Advance Directives (www.nrc-pad.org) is an excellent resource for finding state-specific information on the use of PADs. Where a family member or other person holds a guardianship/conservatorship or power of attorney over the patient, that individual could be entitled to communicate freely about the patient’s treatment. Ask to see a copy of the relevant document before discussing the patient’s care with that individual. Oftentimes, these documents only grant the power to make financial decisions and do not entitle the holder to obtain medical information or to make treatment decisions. Other times, they are written in such a way as to only take effect upon the patient being declared incompetent. Finally, two resources that might be helpful for HIPAA-covered entities, as well as informative for providers and their practices that are not covered entities, are “Communicating with a Patient’s Family, Friends, or Others Involved in the Patient’s Care”4 and “Disclosures to Family and Friends,”5 both available via the US Department of Health and Human Services.

References

  1. Communicating with Your Doctor, Part II, Family Caregiver Alliance. www.agis.com/Document/805/communicating-with-your-doctor,-part-ii.aspx. Accessed July 15, 2019.
  2. Family Care America, Inc., Give it to Me Straight. www.caregiverslibrary.org/caregivers-resources/grp-medical-care/hsgrp-doctors-and-hospitals/closing-the-doctor-patient-gap-article.aspx. Accessed July 15, 2019.
  3. Minimum Necessary Requirement. www.hhs.gov/hipaa/for-professionals/privacy/guidance/minimum-necessary-requirement/index.html. Accessed August 28, 2019.
  4. Communicating with a Patient’s Family, Friends, or Others. www.hhs.gov/sites/default/files/provider_ffg.pdf. Accessed July 15, 2019.
  5. Disclosures to Family and Friends. www.hhs.gov/hipaa/for-professionals/faq/disclosures-to-family-and-friends/index.html. Accessed July 15, 2019.

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