Occupational Therapy liability and appropriateness of some HMMS forms

Post 1

Posted 10th August 2007 at 5:31 PM
Author Guest
Last Edited 10th August 2007 at 11:47 AM

The Clearinghouse has recently received a number of emails querying the appropriateness of signing off HMM Service application forms that make Occupational Therapists liable for knowledge of standards and require them to prioritise not just the application for work but each piece of work being tendered.

The following are a list of considerations that may assist occupational therapists in clear communication about what might be considered appropriate or not. If in doubt advice should be sought from the relevant health service legal department.

Some forms that have been cited, could be improved. For instance, clauses or blanket statements that simply refer to "relevant Australian & New Zealand Standards". This is too broad and outside the scope of most entry level OT practitioners (e.g. most undergraduates would have only glancing familiarity with electrical or wet area standards at best). Unfortunately, statements of this type raise the issue of liability for work outside the professional sphere of competence.

The legal basis of any occupational therapy home modification recommendations should rest on:

*Consultation with the client or client's legal guardian

*Investigation of the client's functional needs

*Familiarity with Assistive Technology solutions

While Occupational Therapists should be familiar with the AS1428 or 'mobility and access' suite of standards. It is important to note that the legal opinion provided by the Australian Government Solicitor confirms the view that AS1428 is intended for public access and as such has no direct application to Class 1 (single dwellings, terrace houses, town houses, etc) and Class 2 (a building containing two or more sole-occupancy units such as an apartment block). This is because it is unusual for the 'general public' to have right of access to such buildings. So adding caveats like "where possible" while making it clear that this is not always possible, fails to provide any guidance on interpretation - making any form filling process quite problematic.

Good practice as previously advocated by OT Australia involves use of a legal disclaimer in professional home visit documentation. Such a disclaimer usually outlines any limitations of the assessment and suggested interventions that need to be taken into account by users (consumers and building professionals). A disclaimer does not completely remove your legal liability, but acts to reduce the potential for lawsuits, by warning of can reasonably be expected from, a qualified occupational therapist.

In general, there is agreement from OT educators that basic OT qualification mean that occupational therapists are insufficiently professionally qualified to accept responsibility for primary knowledge about:

*Structural ramifications of recommendations (i.e. remove wall, insert grabrails etc.)

*Building codes (i.e. fire safety, ventilation, electrical wiring etc.)

*Cost of works (i.e. construction materials, labour and overheads)

*Quality of trades (eg. This depends on skills and abilities of design and construction staff and selection of appropriate finishing and fixings etc.)

*Prioritisation of the scope of works (i.e. it is OK to leave this bit off or cut corners here etc.)

Occupational therapists are however expected to have expertise on maximising human function. So it is their primary responsibility to outline the consequences of problems and the expected benefits of the corresponding solutions. Problem identification requires identification and articulation of all relevant functional sequelae.

If the economics of the proposed home modification works are such that not all problems identified can be dealt with, it is the homeowner's or funder's responsibility, on the basis of the information you have provided, to rank or prioritise the specifications for actual implementation. It is the homeowner, not the occupational therapist, who has the responsibility in terms of vicarious public liability.

Because of the complexity, variability in knowledge and skill levels etc, much can, and does, go wrong during the actual construction process. For this reason, it is thus important that the occupational therapist makes it clear that they take no responsibility for supervision of the work, or for the quality of the workmanship.

It is also important for an occupational therapist to make explicit what communication process they want to unfold if queries or anomalies do occur. The point here is that it is important to set out any expectations if building and construction personnel are to communicate and to discuss variations or deviations in work prior to tendering and prior to the commencement of construction.

Of course, what will and won't stand in court depends on the type of tort action being taken, i.e. there are significant differences in terms of negligence, product liability and vicarious public liability, all of which could relate to access/safety problems.

The bottom line is that all occupational therpists must be able to clearly explain the clinical reasoning involved to the client, the funder, and, if necessary in an adversarial court situation, to a barrister. In such a situation, the onus will be for the Occupational therapist to clearly explain how deviation from an accepted standard best serves the client's abilities, and better enables them to carry out their daily activities and occupations. The court treats AS1428 as a commonly accepted baseline of reasonable care in regard to accessibility to premises. That is, the argument must be made on knowledge of current research, clinical observations and measurements, and client related anthropometrics etc.

It would not be acceptable, for instance, to indicate a ramp with a gradient of 1:10 is recommended solely on the basis of insufficient space. Insufficient space may be a physical and economic reality but it is clinically untenable. Clinically, all research undertaken on gradient indicates that the effort required increases proportional to gradient. All gradient studies indicate that a 1:14 gradient is unmanageable for many people with disabilities, and providing a steeper gradient could foreseeably result in strain or injury (particularly for carers and those aging in place with a disability). Not to mention the fact that there are numerous other potential solutions, such as step lifts etc, which may well provide more suitable alternatives.

Because of these considerations, and after discussion with Tony Houen, the honorary solicitor for the AAOT-NSW, AAOT-NSW published the following disclaimer in the Sept, 1999 Newsletter, for use by any of its members undertaking structural or building alterations. You may wish to make use of this disclaimer, or to alter it as you see necessary, in order to cover yourself in the provision of home mods.

Occupational Therapist: Home Assessment Recommendation Form Disclaimer

"The recommendations contained in this form are made after consultation with the client and an investigation of the client's circumstances and needs. Their purpose is to outline steps required to be taken for the benefit of the client, having regard to his or her disabilities. They do not purport to reflect other than limited knowledge on the part of the occupational therapist of structural considerations and building codes. Any queries, concerns or alterations considered necessary for compliance with current building regulations must be discussed with the occupational therapist before quoting for the cost of the work and before the work proceeds. The occupational therapist accepts no responsibility for supervision of the work or for the quality of workmanship."