LEGAL ISSUES AND OCCUPATIONAL THERAPY PRACTICE
Occupational therapists and occupational therapy assistants practice within a society governed by laws. Laws flow from ethical principles and are limited to specific situations and codified by detailed language. These rules of conduct are formulated by an authority with power to enforce them. Each state’s legislature has the power to create and enforce laws governing the profession of occupational therapy, including licensure.
| Statutory Law | Administrative Law | |
|---|---|---|
| Source | Laws passed by legislative bodies of federal, state, and local governments | Executive powers, delegated by the legislative branch |
| Functions | Protects and provides for the general welfare of society | Carries out special duties of various agencies |
| Example | The state legislature passes an Occupational Therapy Practice Act and establishes an Occupational Therapy Board, with the details described in that state’s legal statutes. | The state’s Occupational Therapy Board adopts rules governing the licensure and standards for the practice of occupational therapy within that state, as described in the state’s administrative code. |
Civil Vs. Criminal Law
There are two major divisions of law: civil and criminal.
Civil law pertains to the private rights of one or more individuals and provides a means by which individuals may seek to enforce their rights against other individuals. Some types of civil law include contract law, wills, family law, and trusts. Civil litigation that involves injury (due to assault, battery, negligence, professional negligence, etc.) is called a tort.
Criminal law regulates the conduct of the individual in order to protect the public and society as a whole. Criminal prosecution is initiated by the government as opposed to an individual. The main types of criminal offenses are felonies, misdemeanors, and infractions. The primary goal of criminal litigation is to punish the defendant (University of Minnesota, 2018).
It is important to be aware that an action can potentially be both criminal and civil in nature (Stanford & Connor, 2020).
| (University of Minnesota Open Library, 2018) | |
| CIVIL LAW | |
|---|---|
| Function/Goal | To redress wrongs and injuries suffered by individuals |
| Types |
|
| Proof | By preponderance of evidence; adjudicated by a judge or jury; a jury decision need not be unanimous |
| CRIMINAL LAW | |
| Function/Goal | To regulate individual conduct for the good of society as a whole; to punish defendant (if found guilty) |
| Types |
|
| Proof | Beyond a reasonable doubt; decision must be unanimous |
State Occupational Therapy Practice Acts
In the United States, occupational therapist licensure is required in all 50 states as well as in the District of Columbia, Puerto Rico, and the Virgin Islands. Licensure is required in each state in which a therapist practices. All occupational therapy licenses must be renewed on a regular basis (which varies by state), and most states require the completion of some level of continuing education in order for a licensee to qualify for license renewal.
Occupational therapists must practice within the scope of occupational therapy practice defined by individual states’ occupational therapy practice acts. States’ occupational therapy practice acts include rules and requirements for educational institutions and practitioners regarding:
- Scope of practice
- Licensure
- Competency
- Disciplinary sanctions
- Supervision of occupational therapy assistants
Each state practice act may have language that differs from other states in regard to evaluation/reevaluation, delegation and supervision of occupational therapy assistants, specific areas of practice restriction, or issues of direct access.
The goal of occupational therapy practice acts and their administrative boards is to protect the public by setting standards for occupational therapy education and practice. It is the responsibility of practitioners to know and abide by the provisions of these acts and abide by the rules and regulations of the state(s) in which they are licensed.
It is a criminal offense to violate provisions of a state’s occupational therapy practice act. When individuals or agencies believe an occupational therapist or occupational therapy assistant has violated a provision of a state’s practice act, they may complain to the administrative board of that state. This board will investigate the allegations, and if sufficient evidence is found to support the complaint, state attorneys may file a complaint against the licensee.
Although occupational therapy practice acts vary from state to state, they contain similar grounds for complaints, such as:
- Obtaining a license by fraud
- Practicing in a grossly incompetent or negligent manner
- Diverting controlled substances for personal use
- Being convicted of a felony
It is the responsibility of license holders to know, understand, and obey the rules and regulations of the state in which they are licensed to practice. (See also “Resources” at the end of this course.)
CASE
Alexa is an occupational therapist who works in an outpatient pediatric clinic. Though she excels in her professional and clinical responsibilities, she has lately been struggling with some personal issues, including a health crisis with her elderly father and a recent acrimonious divorce. She also just found out that her teenage son dropped out of high school.
With all the recent upheaval in her personal life, Alexa accidentally misplaced the letter from the state occupational therapy board regarding her upcoming licensure renewal deadline. Three weeks after the renewal deadline had passed, the director of the pediatric practice where Alexa works requested updated copies of state licenses for all therapist employees. Alexa realized that she had forgotten to renew her license, which was now expired. To make matters worse, Alexa also realized she had not completed sufficient continuing education to be eligible for license renewal. Alexa was extremely upset and embarrassed and became tearful in her manager’s office as she described the recent stressors in her life that had contributed to her forgetting to complete her license renewal requirements.
Discussion
Alexa’s manager, Jade, was a very supportive employer and knew Alexa to be a loyal employee and highly competent therapist who had simply made a mistake. Jade gently explained to Alexa that she would have to cease practicing immediately and begin the process of reinstating her lapsed license in accordance with the practice act specific to their state, including payment of applicable penalties and completion of requisite paperwork. In addition, they would need to call the state occupational therapy board in order to explain the situation and to determine if Alexa would be liable for any disciplinary action due to having inadvertently practiced with a lapsed license for three weeks.
They discussed Alexa’s other recent personal stressors, and Jade suggested that Alexa use some of her accrued paid time off to take an approved continuing education course that was being offered a few hours away. Jade assisted Alexa in finding respite care for her elderly father and making arrangements for Alexa’s son to stay with relatives temporarily, allowing Alexa to enjoy some much-needed down-time while simultaneously completing the continuing education that she needed to reinstate her license.
Civil Law and Torts
(The information in this section is in no way intended to be a substitute for professional legal advice.)
Civil law is concerned with harm against individuals, including breaches of contracts and torts. A civil action is considered a wrong between individuals, such as defamation of character. Its purpose is to make right the wrongs and injuries suffered by individuals, usually by assigning monetary compensation (Stanford & Connor, 2020).
A contract is a legally binding agreement between two or more parties. Breaking such an agreement—such as a written employment agreement between a healthcare agency and an occupational therapist—is called a breach of contract. Both parties to a contract must do exactly what they agreed to do or they risk legal action being taken against them. For that reason, it is vital that each party clearly understands all the terms of a contractual agreement before signing it.
A tort is a wrong against an individual. Torts may be classified as either intentional or unintentional.
- Intentional torts include assault and battery, false imprisonment, defamation of character, invasion of privacy, fraud, and embezzlement.
- Unintentional torts are commonly referred to as negligence. In order to be successfully claimed, negligence must consist of four elements: duty, breach of duty, causation, and damages.
(Stanford & Connor, 2020)
INTENTIONAL TORTS
Assault and Battery
Assault is doing or saying anything that makes people fear they will be touched without their consent. The key element of assault is fear of being touched, for example, threatening to force a resistant patient to get out of bed against their will. Battery is touching a person without consent, whether or not the person is harmed. For battery to occur, unapproved touching must take place. The key element of battery is lack of consent.
Examples of assault and battery in a healthcare context are:
- Forcing a client to submit to treatments for which they have not consented orally, in writing, or by implication
- Moving a protesting client from one place to another
- Forcing a client to get out of bed to walk
- In some states, performing blood alcohol tests or other tests without consent
False Imprisonment
False imprisonment is a tort offense that involves restraining or confining a competent person against their will. Some examples of false imprisonment are:
- Restraining (physically, pharmacologically, etc.) a client for non–medically approved reasons
- Detaining an unwilling client in the hospital, even after the client insists on leaving
- Detaining a person who is medically ready for discharge for an unreasonable period of time
(LSU Law Center, 2018)
Defamation of Character
Defamation of character is communication that is untrue and injures the good name or reputation of another or in any way brings that person into disrepute. This includes clients as well as other healthcare professionals. When the communication is spoken, it is called slander; when it is written, it is called libel. Prudent healthcare professionals: 1) record only objective data about clients, such as data related to treatment plans, and 2) follow agency policies and approved channels when the conduct of a colleague endangers client safety (Stanford & Connor, 2020).
Invasion of Privacy
Invasion of privacy includes intruding into aspects of a patient’s life without medical cause. Invasion of privacy is a legal issue separate from violations of HIPAA’s privacy rule due to the fact that invasion of privacy goes beyond protected health information.
Fraud
Fraud includes deceitful practices in healthcare and can include the following:
- False promises
- Upcoding (such as billing group treatment sessions as individual therapy)
- Insurance fraud
Embezzlement
Embezzlement is the conversion of property that one does not own for his or her own use, such as when an employee appropriates funds from a business’s bank account (Stanford & Connor, 2020).
CASE
Riley, an occupational therapist, was chatting with her neighbor, Sonja, while they did yard work together. When they were finished digging up a flowerbed, Sonja shook out her wrists and said, “Wow, I feel like I just gave myself carpal tunnel syndrome from all that digging!”
“That reminds me,” Riley said. “You’ll never guess who came in for an appointment the other day. You know Manny, who works at the auto repair shop down the street? Well, he was just referred to our clinic for treatment of carpal tunnel symptoms. I always thought he was pretty tough, but it turns out that he’s a real wimp when it comes to pain. Makes you wonder if he’s all that good a mechanic, really.” Suddenly, Riley realized she had violated a Standard of Conduct in the AOTA Occupational Therapy Code of Ethics by disclosing confidential client information without authorization, as well as voicing personal and nonobjective opinions about this client. She had also put herself at risk of legal action due to slander.
Discussion
Riley violated her patient Manny’s right to confidentiality as protected by Standard 6B (Principle: Veracity), which requires occupational therapy personnel to “maintain privacy and truthfulness in delivery of occupational therapy services, whether in person or virtually.” Divulging her patient’s identity also breached federal laws under HIPAA, which expressly prohibit sharing of confidential patient information with unauthorized individuals.
Riley also violated Standard 7B (Principle: Fidelity) of the Code, which states that occupational therapy personnel shall “demonstrate courtesy, civility, value, and respect to persons, groups, organizations, and populations when engaging in personal, professional, or electronic communications, including all forms of social media or networking, especially when that discourse involves disagreement of opinion, disparate points of view, or differing values.”
In this situation, not only has Riley violated the Code by disclosing confidential information, if the matter were to become known to her client, a legal suit of slander could be realistically be brought against Riley. Even though it may be tempting to discuss clinical aspects of client care with friends who are also healthcare professionals, the Code and privacy laws expressly prohibit sharing of confidential patient information with unauthorized individuals.
UNINTENTIONAL TORTS: NEGLIGENCE
It is the legal responsibility of all healthcare professionals to uphold a certain standard of care. This standard is generally measured against an established norm of what other similarly trained professionals would do if presented with a comparable situation.
Components of Negligent Care
In the case of negligent care, four components must be present in order to establish a successful unintentional tort claim.
- Duty is established when a healthcare professional agrees to treat a patient.
- Breach of duty occurs when a healthcare professional fails to act in a manner consistent with what another member of that health profession would prudently do in a similar situation. Breaches fall under three general categories:
- Misfeasance occurs when a mistake is made (e.g., administering a treatment to the wrong patient unknowingly because the patient had the same or similar name).
- Nonfeasance occurs when a healthcare professional fails to act (e.g., not calling the paramedics when an OT initiates a home care evaluation and finds the patient lying on the floor after sustaining a fall; or not reporting signs of abuse or neglect for a client currently receiving services).
- Malfeasance occurs when the negligence action involves questionable intent (e.g., by physically pulling a resistant patient from bed by their wrists instead of using a gait belt, thereby causing bruises on the patient’s wrist).
- Causation requires that an injury of ill-effect to the patient must be proven to have been a direct result of the action (or lack of action) taken by the healthcare professional.
- Damages refers to the actual injuries inflicted by the accused for which compensation is owed.
(Stanford & Connor, 2020)