DSHS And Slipping Laxatives To Unknowing Adult Patients

In addition to whatever healthcare regulation(s) a nursing assistant may violate by placing a mild laxative into a vulnerable adults coffee without the patient’s knowledge, the Department of Social and Health (DSHS) recently tried and failed to establish that such conduct also constitutes neglect of a vulnerableIn order for DSHS to prove that the Respondent in this case neglected Bill (not the patient’s real name) pursuant to RCW 74.34.020(12)(b), it needed to prove that putting Miralax in his coffee without his knowledge or permission was an action that “demonstrates a serious disregard of such a magnitude as to constitute a clear and present danger to the vulnerable adult’s health, welfare, or safety.” In order to satisfy the elements of subsection 12(b) an act or omission need not be part of a pattern of conduct, in contrast to subsection 12(a), which requires a pattern of conduct or inaction. Based on that little bit of statutory construction, it is clear that an isolated instance of conduct or inaction, that if part of a pattern would meet the elements of subsection 12(a), would not necessarily be neglect under 12(b). In other words, 12(b) addresses misconduct that is more serious than what is addressed in 12(a) insofar as a single act or omission is concerned. To further illustrate this point, subsection 12(b) provides one example of conduct that constitutes neglect under its provisions: violation of RCW 9A.42.100…which is to say exposing a vulnerable adult to methamphetamine manufacturing operation. Subsection 12(a) does not provide any examples.The Department did not prove that the Respondent acted or failed to act in a manner that demonstrates a serious disregard of such a magnitude as to constitute a clear and present danger to the Bill’s health, welfare, or safety. Miralax is extremely safe. The Department’s expert could not name a single prescription medication that has a lower risk of side-effects. Further, there was no evidence that one’s ingestion of Miralax without his or her knowledge increases the risk of side-effects occurring. Ultimately, this was a medication that a doctor prescribed to Bill. Presumably, the doctor would not have prescribed Miralax if he thought it was dangerous for Bill to take Miralax.In order for the Department to prove neglect under RCW 74.34.020(12)(a), it needed to establish a pattern of conduct or inaction by the Respondent that was detrimental to Bill, which it failed to do. The Respondent readily admitted to placing Miralax in Bill’s coffee on a single occasion and that having done so was wrong. She consistently denied having done so on more than one occasion. Although the Department attempted to prove a second instance based on very weak and inconsistent circumstantial evidence, the judge in this case held that even if the Department had proven the occurrence of a second incident, it takes more than two events occurring six months apart to constitute a “pattern.”