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Burden of Proof in Grievance Process: Determining the Standard of Evidence, Slides of Decision Making

University of ExeterDecision Making

The burden of proof in various situations within the grievance process and legal contexts, including the continuum of evidence required for staff and patients in security measures, rule violations, and allegations of wrongdoing. It also discusses the different standards of proof, such as probable cause, more probable than not, and beyond a reasonable doubt.

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GRIEVANCE PROCESS - BURDEN OF PROOF
[NOTE: “Burden of proof” is a legal term used in court and in the grievance
process to determine who has the responsibility for proving facts through
testimony and other evidence and the amount of evidence that must be proven
in order for that party to prevail.]
Continuum of evidence presented:
0% PC 50% BYRD 100%
>50% = MPTN
(PC = Probable Cause. MPTN = More Probable Than Not (any amount of
evidence over 50%. BYRD = Beyond a Reasonable Doubt.)
The burden of proof in situations for a service provider:
Type of situation: Burden falls on: Burden to be met is:
Security measure Staff “Significant risk” [probable cause]
Sanction Imposed on patient Staff “More probable than not”
Patient claims abuse Patient “More probable than not”
There needs only to be a showing of a “significant risk” (probable cause) for
staff to take a “risk-reduction” measure. However, the risk should be more than
remote or speculative to take a security measure such as denying a patient
certain property. [See the Risk Reduction Measures section of this digest.
Where a patient is sanctioned for a rule violation, the staff must show that it is
More Probable Than Not (any amount of proof over 50%) that the patient
violated the rule. [See Rules and Consequences section of this digest.]
Where a patient claims wrongdoing on the staff’s part, the burden is on the
patient to show that it is More Probable Than Not that the staff acted as alleged.
The standard of “Beyond a Reasonable Doubt” is the one the state must meet
to show that a crime has been committed by a particular person. It only applies
to criminal court charges.
- CRO training materials
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Download Burden of Proof in Grievance Process: Determining the Standard of Evidence and more Slides Decision Making in PDF only on Docsity!

GRIEVANCE PROCESS - BURDEN OF PROOF

[NOTE: “Burden of proof” is a legal term used in court and in the grievance process to determine who has the responsibility for proving facts through testimony and other evidence and the amount of evidence that must be proven in order for that party to prevail.]

Continuum of evidence presented :

0% PC 50% BYRD 100%

>50% = MPTN

( PC = Probable Cause. MPTN = More Probable Than Not (any amount of evidence over 50%. BYRD = Beyond a Reasonable Doubt.)

The burden of proof in situations for a service provider :

Type of situation: Burden falls on: Burden to be met is:

Security measure Staff “Significant risk” [probable cause] Sanction Imposed on patient Staff “More probable than not” Patient claims abuse Patient “More probable than not”

There needs only to be a showing of a “ significant risk ” (probable cause) for staff to take a “ risk-reduction ” measure. However, the risk should be more than remote or speculative to take a security measure such as denying a patient certain property. [See the Risk Reduction Measures section of this digest.

Where a patient is sanctioned for a rule violation, the staff must show that it is More Probable Than Not (any amount of proof over 50%) that the patient violated the rule. [See Rules and Consequences section of this digest.]

Where a patient claims wrongdoing on the staff’s part, the burden is on the patient to show that it is More Probable Than Not that the staff acted as alleged.

The standard of “ Beyond a Reasonable Doubt ” is the one the state must meet to show that a crime has been committed by a particular person. It only applies to criminal court charges.

  • CRO training materials

DECISIONS

  1. There must be sufficient evidence to show it was more probable than not that a doctor departed from professional judgment in his prescribing medication to a patient after a phone call with her. Such evidence would have to come in the form of a second opinion from a professional of equal or greater standing than the doctor. Where there was no such evidence presented, the finding of a rights violation will be overturned. (Level IV decision in Case No. 02-SGE-04 on 9/19/03, overturning the Level III.)
  2. The sister/guardian of a woman filed a grievance about the care the woman had received while she was living in her own apartment. She had been receiving supportive home care services from an independent service provider under a general contract with the county. The guardian alleged abuse and neglect because of failure to report theft of monies and possessions and fraud and/or misrepresentation of funds. These issues were properly referred to other authorities. To criminally convict a person of abuse , neglect, or criminal misconduct, there must be proof beyond a reasonable doubt. A patient rights violation only requires a finding that the allegations are proved “ more probable than not ” true. (Level III Decision in Case No. 03-SGE-04 on 6/15/04.)
  3. Where a client asserted that his AODA counselor used foul language, was confrontational, and was generally disrespectful to him, the burden of proof was on the client to provide sufficient evidence that a rights violation had occurred. This was a verbal exchange and no witnesses were present. While it would not be appropriate or acceptable for a counselor to use foul language or be disrespectful to a client, the allegations were self-reported and technically only constituted hearsay evidence. The client had not met his burden of showing a rights violation. (Level III decision in Case No. 09-SGE- 04 on 7/06/09)
  4. A patient complained about a nurse practitioner violating his confidentiality and his right to dignity and respect by in the manner in which she talked to him in a hallway. The evidence, records, and witness reports did not provide sufficient evidence to show that it was more probable than not that his right to confidentiality or his right to be treated with dignity and respect were violated. The client’s burden of proof had not been met. (Level III decision in Case Nos. 09-SGE-07 & 09-SGE-10 on 3/18/10)
  5. A patient claimed a staff member did not treat her with dignity and respect. The complainant had the burden of proof of the alleged staff wrongdoing. This called for the weighing of the two parties’ credibility. Based on the written materials she provided, it was found that complainant’s description of events was credible, but, if true, it did not rise to the level of a

if the nurse’s statement corroborated the girevant’s claims, it would not prove that it is more probable than not that the group session was inadequate treatment or that other aspects of the services received by the client were so poor as to rise to the level of inadequate treatment. Similarly, the patient provided no supporting evidence that the group therapist directly caused her problems or that the alleged mental or physical problems existed. Self-reported evidence standing alone is not generally sufficient to meet the patient’s burden of proof to show wrong doing by staff. (Level III decision in 13-SGE-0006 decided on 12/18/2013)

  1. A husband and wife were receiving therapy from different therapists employed by the same provider. The wife claimed that her husband’s therapist kissed her hand as a response to the couple’s decision not to continue with a complaint. The therapist claimed to have no recollection of kissing the patient’s hand. If proved, kissing a patient’s hand would constitute a violation of a client’s right to be treated with dignity and respect. When a patient claims that a staff member violated his or her rights the burden of proof is on the grievant to show that it is more probable than not that staff violated a specific client right. If the testimony offered by the parties is contradicting and there is no other evidence, it is not possible for a patient to meet the burden of proof unless the patient is more credible than the other party. Here, the grievant was a witness to the incident, her testimony had been reliable and she had no reason to be untruthful in one complaint when she was truthful regarding all other complaints she brought forward. The grievant’s version of events was slightly more credible because the therapist has been found to have violated the client and her husband’s dignity and respect on other occasions. A violation of the patient’s right to be treated with dignity and respect was found. (Level III decision in 13- SGE-0011 decided on 4/11/2014)
  2. A patient filed a grievance stemming from a disagreement between the patient and the therapist about whether the client should be tested for PTSD. When a grievant makes an allegation against a staff member the burden of proof is on the grievant to prove that it is more likely than not that his allegations are true. In this case the parties were alone together in a therapy session. The client alleged that the therapist told the client that he was not giving him a PTSD test because he thought that the client was trying to get on SSDI, which was causing the patient to be ambivalent about getting better. The therapist’s notes reflect similar content. The allegations were likely to be true. However, no rights violation was found because this decision was within the therapist’s professional discretion. Further, different psychologists can arrive at different determinations of whether the same person meets the DSM diagnostic criteria for a given disorder. (Level III decision in 14-SGE-0002 decided on 11/19/2014)
  1. A patient indicated that he would be willing to provide evidence to back up his claims upon request from the State Grievance Examiner. A deadline for providing evidence was imposed on the patient so that the patient would have the opportunity to submit everything that he felt would support his grievance without further extending the decision making process. (Level III decision in 14-SGE-0003 decided on 6/26/2015)
  2. A patient alleged that his rights to adequate treatment and to be free from arbitrary decisions were violated when his therapist failed to provide medication that he requested. Due deference must be given to treatment professionals in making decisions regarding a patient’s treatment plan. Such decisions will not be found to violate a patient’s rights unless it is more probable than not that the determination was inappropriate. In order to meet this burden of proof a patient must show that it was more likely than not that the treatment team failed to meet established professional standards of psychiatry when determining the patient’s treatment recommendations. The patient did not meet this burden. There was insufficient evidence to show it was more likely than not that the grievant’s treatment team failed to meet established professional standards. In fact, evidence in the grievant’s treatment record shows that the medical staff made a considered professional judgement to deny pain medications to the grievant. No violation of the patient’s right to adequate treatment was found. (Level III decision in 14-SGE-0003 decided on 6/26/2015)
  3. A patient was receiving services at a Community Based Residential Facility under a commitment order and an involuntary medication order. The patient alleged that the provider took the patient’s head scarf and did not return it. Her treatment record reflected that she wore a head scarf but never mentioned that the head scarf was a problem or that it was taken by staff. The grievant did not meet her burden of proof that her scarf was taken away because she produced no evidence other than her own testimony. (Level IV decision in Case No. 15-SGE-0001 on 10/17/2016)
  4. Evidence submitted by a grievant’s doctor showed that the grievant was disabled and had severe restrictions on his ability to walk or travel long distances in a vehicle, which the grievant alleged made him unable to transport himself to the clinic. His requests for telephonic or in house AODA services were denied. In order to show that the provider provided inadequate treatment the grievant would have to show that it was more probable than not that the county departed from professional judgement in the delivery of the treatment by requiring the grievant to transport himself to the clinic for AODA treatment. Further, such evidence regarding the location of services would have to come in the form of a professional of equal or greater standing than the patient’s doctor. (Level IV decision in Case No. 16-SGE-01 on 12/15/2016)