Some family members of residents, such as adult children, may also be practising health professionals such as doctors, physiotherapists, nurses or some other branch of the health sector. This can sometimes give rise to significant ethical or clinical conundrums for aged care staff and management.

Because of their professional expertise, these adult children, for example, can often believe they know best when it comes to the care of their parent. However, when their health expertise is blended with their role as a family member, it can blur the line of demarcation between their head and their heart.

This can result in conflict between the adult child and the facility and even with the resident’s treating health professional. In other cases, simply for the sake of peace, it can lead staff in a facility to compromise their duty and to give in to the demands of the child. Even treating health professionals can be tempted to defer to their “colleague” when it comes to the appropriate care for mum or dad.

In a recent example, a resident’s daughter was a doctor who had strong views about the appropriate medical care required for her mother, which views were not always shared by her mother’s treating GP. As a result, the resident had a history of churning her GP’s usually at the instigation of her doctor daughter. Any treating GP who did not agree with the doctor daughter was promptly ‘shown the door’.

Remarkably, one treating GP, aware of the dynamics and averse to conflict or confrontation, requested the facility not to implement any of his medical directives for the resident unless they were also approved by the doctor daughter.

This is a vexing area for aged care providers but here are some thoughts to consider:

• Doctors and other health professionals should not let their personal family relationships interfere with their professional ethical obligations;
• Treating health professionals should resist the pressure to ingratiate themselves with ‘colleagues’ who are family members of residents;
• For a child of a resident who is a health professional, aged care staff should be aware of the appropriate line between a health professional’s ethical duties and their personal family rights and responsibilities.

There are many other scenarios that we have come across on this subject and which form the basis of a presentation we give entitled “Doctor/Daughter” which explores the legal and ethical conundrums that aged care staff face in this difficult work life dynamic

There can often be a simmering cleavage between hospitals and aged care facilities especially involving residents with behavioural issues. This came to a head recently in the USA.

It was reported on the website, DesMoines Register.com that, for the first time to anyone’s knowledge, a public hospital in Polk County is suing a local nursing home saying the nursing home dumped a brain damaged patient on the hospital and refused to take him back.

The law suit states that the nursing home sent him to the hospital for stabilisation after he “suffered an episode of dementia and combativeness” and that they agreed to take him back when his condition improved which they then refused to do.

On the other hand, the lawyer for the nursing home is quoted as saying, “The resident in question was appropriately transferred…in accordance with the orders from the resident’s physician and the same physician felt that the resident’s readmission to (the nursing home) posed a risk to the safety and welfare of the residents who resided there.”

The hospital’s law suit seeks some $76,000.00 in reimbursement for its costs and, as usual in American litigation, punitive damages to prevent such behaviour by nursing homes in the future.

We are not aware of any similar litigation in Australia. No doubt, some aged care facilities would like to have other residential options available for residents with significant mental illness or behavioural disorders if, for no other reason, than to protect the staff and other residents. It does raise the recurring tension between aged care and mental health and the vexed question – is residential aged care about caring for the aged or treating the sick?

Brian Herd & Joanne O'Brien
Aged Care & Retirement Living Services
CARNE REIDY HERD LAWYERS