When a Right is No Longer a Right

by Kathleen Heren, Rhode Island's Long-term Care Ombudsman

Kathleen Heren

I am certain you have been following the story of the governor mandating health care workers to be vaccinated before October. I have given this a great deal of thought for a very long time. One of their arguments is “I have the right to refuse what I put into my body.” Our office lives and breathes standing up for residents receiving long-term care services and their rights. I even teach resident rights to employees of long-term care facilities. The Bill of Rights is a mandated class that all long-term care workers, which includes all departments, are obligated to attend. One of the questions I start my lecture with is asking “Do you all know what a right is?” The employees who have attended this class each year all respond with “It’s a resident’s right to do anything they want.” When I tell them they are incorrect, they look at me dumbfounded. My definition of a right depends on two very important factors; first, does a person understand the consequences of exercising their right, and second; will their decision affect other people’s rights. A person’s ability to make decisions is not either/or. It rests on the two conditions I first explained.

To get into the weeds a little more, here are some examples. I have spoken to many residents who tell the staff they no longer wish to receive dialysis (a life-sustaining treatment). The staff panic and ask for an ombudsman to speak to the resident. Our role is to listen to the resident then try to explain the consequences of their decision. If they respond by telling me they do not wish to continue living like they are, I will support them in carrying out their decision. As you can imagine many families become very upset and tell us “they are the Power of Attorney for Health Care.” We then remind them they only have the right to make decisions when the resident can no longer make them. If I have doubts, I will ask the physician to order an evaluation with a mental health worker. I don’t want our office to be a party to a suicide wish.

Let me now apply the second part of "a right" definition. Will this resident’s decision affect other people in a negative way? The answer is no. It is critical now to compare this definition to the mandatory vaccination rule. The first definition applies to the health care worker who has certainly received enough written material and counseling on the consequences of not being vaccinated. They tell you “I am willing to take the risk.” Does the risk they are taking have the potential to harm others? It most certainly does. The veiled threat of “the employee resigning” is there. Do the homes want to lose these employees? No, certainly not. It is also not fair to allow families to again experience the terrible loss of loved ones and not being able to visit. Could it be time to resort to the Family Care Act passed in Rhode Island? This article, I am certain, will make some people angry. I expect that. I will not however approve of any dangers to the frail elders that cannot speak for themselves.

I close with, reach out to our office (401-785-3340) if I can answer any questions you may have. If I can’t, I will direct you to someone who can.

“Get vaccinated.”


The opinions expressed in our guest blogs are those of the author(s) only. They do not purport to reflect the opinions or views of Connelly Law Offices, Ltd, or its employees.

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