Opinion No. Oag 70-75, (1975) , 64 Op. Att'y Gen. 211 ( 1975 )

GEORGE H. HANDY, M.D., State Health Officer, Department of Healthand Social Services

You have asked my opinion on the following question: "Is the governing body and/or administrator of a nursing home accountable for the actions of a nursing home patient at times during which such patient is not physically present in the nursing home?"

You indicate that your department allows the practice of "home visits," in which the patient is released in the care of a relative for brief visits to the relative's home. During these visits, patients sometimes avail themselves of medication, diets and treatments without prior or subsequent knowledge of the nursing home or the attending physician. You have stated that it has been the position of the department that such actions are not governable by sec. 146.30, Stats., licensing and regulation of nursing homes, or the rules promulgated thereunder, and are not the responsibility of the nursing homes' governing bodies and/or administrators.

It is my opinion that neither the governing body nor the administrator may be held responsible for patient actions occurring outside the nursing home, including actions affecting the patient's health and medical treatment.

A nursing home functions in relation to the patient as provider of maintenance services and health and medical care. It is defined by its functions as a place ". . . for the reception and care or treatment . . . of . . . individuals . . . who by reason of disability, whether physical or mental, are in need of nursing home services . . ." (Wis. Adm. Code section H 32.01 (1)).

The Wisconsin Administrative Code, Chapter H 32, gives responsibility for the overall conduct of the nursing home to the governing body, or licensee, (Wis. Adm. Code section H 32.05 (1) (a)), and responsibility for the total operation of the home to the administrator appointed by the governing body, (Wis. Adm. Code section H 32.05 (2)). This responsibility includes that for written policies governing skilled nursing care and related services, (Wis. Adm. Code section H 32.05 (4) (k)). In other words, nursing home licensees and administrators have responsibility under normal circumstances to govern the care and treatment afforded a patient within the home rather than over the patient himself.

The laws and administrative rules governing nursing homes may not be interpreted so that they infringe the constitutional rights of patients, including the right not to be deprived of liberty without due process of law. A person does not surrender control of himself by entering a nursing home. The control necessarily exerted by nursing home policy aimed at enforcing health and medical care programs must not contradict fundamental principles of individual liberty.

The nursing home may have a responsibility to inform the patient or the person in whose care he leaves the home, or to whom his medication is entrusted, of the importance of maintaining ongoing health and medical care programs during the patient's absence. However, it is my opinion that the nursing home, its governing body and administrator, are not accountable for actions, taken by patients outside the home contrary to the policies of the home.

BCL:WHW