Legal Entry

Q: Recently, a family member of a hospice patient filed a police report of "suspicious activity" because another staff member, when conducting official business, used a hidden key to enter the patient's home when there was no answer at the door. We often have patients who provide us with a key or tell us where a hidden key is located. Is it legal to use these keys to enter a patient's home?

-Hospice Nurse

A: The situation you are describing occurs daily in hospice programs throughout the United States. There are many reasons a hospice patient or family member might provide hospice staff with keys or door codes to secure buildings. Most often, these individuals might not have family in the immediate area and/or find it physically taxing to answer the door or telephone. In these situations, they provide hospice staff with access for convenience. Despite the obvious safety issues associated with patients who are alone and unable to answer the door, there are also legal implications.

Although the provision of a key or access code may provide a patient with the convenience of not having to answer the door, it is not without risk or liability to the hospice program or staff. Depending on the neighborhood, there is also significant risk to patients who leave keys "hidden" outside their home for use by hospice staff. These "hidden" keys are often under doormats, flowerpots, or other obvious locations where criminals are sure to look. Although your question does not include the circumstances under which a police report was filed, it sounds as though the family did not intend for the key to be used by all hospice staff.

Determining which staff members have permission to use the key and/or access code is the first problem with such a practice. Did the patient specify who was to use the key and under what circumstances it could be used to gain entry into the home? If a patient has provided hospice staff with a key and/or access code, what steps has the hospice program taken to track the location and use of this information at all times? Hospice programs must always know how many keys have been made, who is responsible for maintaining the security of the keys, and, if access codes have been obtained, where the information is maintained (Patient Information Sheets, On-Call Books, etc).

The answers to these questions become significant if a crime occurs in a patient's home or building. If criminal activity occurs, hospice programs may be required to produce evidence that their staff members were not involved and that the keys and/or access codes in their possession were not used. "Criminal activity" can be defined in different ways. Criminal activity is defined and governed by state and local laws; therefore, it is critical for hospice staff to know and understand the relevant laws in their area.

If the event you described had occurred in Washington State, the person involved could have been charged with Criminal Trespass in the first degree.1 The Regulatory Code states that a person is guilty of Criminal Trespass "if he knowingly enters or remains unlawfully in a building."1 It is also important to understand the difference between being charged with a crime versus being convicted of a crime. A law enforcement officer may arrest and charge an individual with a crime based on limited information gathered. However, once charged, a prosecuting attorney must determine if the evidence supports the charges and if there was "criminal intent."1 Based on the circumstances you reported, it is unlikely that your staff member would have been convicted. In fact, depending on the situation presented to the investigating law enforcement official, it is unlikely, although possible, that the staff member would have been charged. Although in this case it is unlikely that criminal charges would have been filed, the patient and family could pursue civil litigation if they believed the patient had been harmed by your staff member's actions.

To avoid situations such as those described, first, hospice nurses must know and follow their agency policies related to this issue. Second, hospice program policy must be specific and reflect state and local laws. A patient must give explicit information concerning who may enter his or her residence and under what circumstances. Hospice staff must not assume that because one person has been granted permission to enter this permission applies to other staff members.

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