Originally published March 2018
It’s easy to appreciate that the growing burden of Alzheimer’s disease and dementia poses a threat to the long-term financial sustainability of the healthcare system, with potential impacts to physicians’ practices. But less often explored are the implications for patient safety and the medical-legal risks to physicians who treat patients with dementia. To examine these risks, the CMPA reviewed 119 regulatory authority (College) cases that closed between 2012 and 2016.
Patients diagnosed with dementia may be physically frail, have multiple chronic conditions for which they receive numerous treatments, or may be receiving end-of-life care. Communication and behavioural challenges, the variability of dementia, difficult family dynamics, and the need to balance patient autonomy with personal safety increase vulnerability for patients while presenting added challenges for physicians.
While family physicians and geriatricians working in the community were involved in over half of the cases reviewed, hospital-based specialists were also involved, including internal medicine specialists, emergency department physicians, surgeons, and critical care specialists. Many cases involved transfers of care within and between healthcare facilities.
This article examines medical-legal risk by grouping cases into two categories: those in which peer experts were critical of the clinical care provided, and those for which communication was the primary issue.
Clinical care issues
Three scenarios: Loss of situational awareness, breakdowns at transfers of care
A man files a complaint against his brother’s family physician for allegedly delaying a referral to long-term care. Following an investigation, the College finds there was inadequate follow-up over a three-year period, during which the patient’s cognitive health declined, with documented weight loss and missed appointments.
A woman files a complaint against her mother’s family physician and an emergency department physician after her mother dies in hospital two days after being transferred back to her long-term care home from the same facility. The College finds that the patient’s family physician, who had assessed her in the emergency department for persistent vomiting and dehydration, did not appropriately investigate her condition and left ambiguous instructions for the on-call emergency physician who ultimately discharged her when she appeared to be improving. It is apparent to the College investigator that each physician thought the other had primary responsibility for the patient’s care.
A woman files a complaint against a geriatrician who diagnosed her father with Alzheimer’s disease, citing inadequate assessment and abrupt manner. The woman states in her complaint that another specialist subsequently disputed the diagnosis. The College is critical that the geriatrician’s assessment did not reflect current guidelines for diagnosis.
The main areas of College criticism in cases relating to clinical care were the loss of physicians’ situational awareness and system breakdowns at transfers of care. Loss of situational awareness most often involved inadequate assessment, follow-up, or screening. This included failing to reassess a patient when indicated, or review the medications a patient was taking. The Colleges were critical of assessment or follow-up in nearly a quarter of cases. Deficient patient evaluation was the most common allegation overall, representing over half of complaints. Prescribing an inappropriate or contraindicated medication—a known issue in the older patient population—was the subject of criticism in a small number of cases.
Transfers of care are recognized as high-risk points in patient care, and patients with dementia experience transfers more frequently than similar-aged patients without these conditions.1 The complex care needs of patients with dementia, including their reliance on caregivers and multiple health professionals to coordinate their care, can make these transfers more problematic. Transfer of care issues in the College cases the CMPA reviewed most often involved transfers to and from acute and long-term care facilities, and included incomplete handover of information such as advance directives, details of the care plan, and inadequate medication reconciliation. A few cases involved criticism of the physician for failing to recognize their duty of care to attend to a patient. There were also examples of unclear hospital or long-term care facility policies around levels of care. Colleges were also critical of physicians who failed to document their assessments of patients in long-term care, which could have affected continuity.
To help address these and other clinical care issues, physicians should be familiar with Clinical Practice Guidelines on the Diagnosis and Treatment of Dementia, published by the Canadian Geriatrics Society.2
Three scenarios: Communication with patients, families
A man files a complaint alleging that his mother’s family physician discontinued her anti-hypertensive medication, causing her to have a fatal stroke. The College supports the decision to de-prescribe in this case, but is critical of the physician’s failure to involve the patient’s family in the decision or communicate this decision to them.
A man files a complaint against his mother’s family physician when he learns that his mother, who has vascular dementia with cognitive fluctuations, was dismissed from the physician’s practice for problems related to medication non-compliance and managing relationships with the other caregivers and family members involved in her care. The College is critical of the physician for not following College policy on ending the doctor-patient relationship, including failing to make arrangements for continuing care.
A woman files a complaint against her father’s family physician after she learns that the physician’s administrative assistant had called her father to advise him to cease driving immediately because he had been reported to the ministry of transportation due to his worsening dementia. The College is critical of the physician for delegating such a significant conversation to office staff, which deprived the patient of the opportunity to ask questions and seek reassurance.
Inadequate communication with a patient or their family was alleged in nearly half of the cases reviewed. Peer experts were critical of the quality of the physician’s communication in nearly a quarter of all cases.
The main themes in the reviewed cases that related to communicating with patients or families were not communicating adequately or not communicating directly, where appropriate. These incidents were often based on the physician’s incorrect assumption that their patient was incapable of consenting or understanding the required information (see the section “Understanding capacity”). However, physicians could have also been influenced by the desire to avoid a difficult discussion, particularly in the presence of behavioural issues, including aggressive behaviour or agitation, which affect some patients with dementia. In some cases, communication problems, either with patients or their families, were a source of tension that ultimately led to the dissolution of the doctor-patient relationship.
In cases related to communicating with families, peer experts were most often critical of physicians for not seeking collateral information where appropriate, or not seeking consent for or not communicating updates to the patient’s care plan, most often pertaining to prescribing or de-prescribing medication. Misunderstandings around advance directives, goals of care, or the meaning of “palliative care” or “DNR” were also common. A lack of documentation of discussions or family meetings was also a frequent source of criticism.
Issues relating to capacity represent the largest category of advice calls received by the CMPA related to the care of patients with dementia.
An individual who is able to understand the nature and anticipated effect of a proposed medical treatment and alternatives, and to appreciate the consequences of refusing treatment, is generally considered to have the necessary capacity to give valid consent.3, 4 Furthermore, a person who is incapable of making decisions regarding certain matters might still have sufficient mental capacity to give valid consent to medical treatment.3 Gauging capacity in patients with dementia can be challenging as capacity may fluctuate, making it necessary to re-evaluate previous assessments on a regular basis.
When a patient is determined to be incapable of consent, the responsibility for non-urgent care generally falls to a substitute decision-maker, who can be designated by the patient through an advance directive or power of attorney. Notably, a physician’s incorrect assumption of a person’s attorney for personal care, usually in the context of family disagreement, was seen in a number of College cases reviewed, as were cases involving disagreements between substitute decision-makers of equal standing.
The bottom line
Physicians who treat patients with Alzheimer’s disease and other dementias must contend with issues that are made more complex by the nature of the patient’s conditions and their repercussions. Nevertheless, physicians can minimize their medical-legal risk by ensuring they adequately assess the patient to facilitate situational awareness, and consider the nuances of communicating with dementia patients and their families.
- Callahan CM, Arling G, Tu W, et al. Transitions in Care among Older Adults with and without Dementia. J Am Geriatr Soc. 2012;60(5):813-820.
- Gauthier S, Patterson C, Chertkow H, et al. 4th Canadian Consensus Conference on the Diagnosis and Treatment of Dementia. Can J Neurol Sci. 2012;39:S1–8.
- Canadian Medical Protective Association [Internet]. Consent: A guide for Canadian physicians. Ottawa (ON): CMPA; 2006 [cited 2017 Jul]. Available from: https://www.cmpa-acpm.ca/en/advice-publications/handbooks/consent-a-guide-for-canadian-physicians
- In Québec, the capacity to consent is fixed at the age of 14 years, below which the consent of the parent or guardian or of the court is necessary for the purposes of proposed treatment.