Ethical/Legal Issues in Care of Geriatric Patients

Drs. Barbara Barrowman &

Andrew Latus

ISD II

June 6, 2003

Schedule

9:30 – 10:15 Lecture on Ethical/Legal Issues

10:15 – 10:45 Small Group Discussion

11 – noon Group Reports/Panel Discussion

Outline

End of Life Issues– Not exclusive to geriatric patients– Discussed in a later session (June 18th)

Paternalism– Consent– Confidentiality

Competence/Capacity Substitute Decision Making

– Advance Health Care Directives Act– Neglected Adults Act– Mental Health Act

Geriatric Patients in General Why think distinct issues arise here at all?

– Similarities & differences with pediatric patients

– Similarities: Issues such as consent can take on a special (but not unique) shape

E.g., patients with alzheimer’s, immature minors

– Differences: Generalities about geriatric patients cannot be so easily drawn

All 1 year olds are incompetent, but not all 90 year olds

Justice

The ‘Four Principles’

– Autonomy– Beneficence– Non-maleficence– Justice

Justice is the least discussed principle, but relevant here.

– ‘like cases should be treated alike’ – chronological age alone should never be a consideration in whether a particular treatment is recommended

Different ‘Inputs’

Having said this, it is sometimes the case that we face different ‘inputs’ when dealing with geriatric patients

– E.g., Different likely outcomes of surgery– Greater focus on pain relief

When this is true, it is clearly of ethical relevance, however we should be very careful about assuming this is true in a particular case

– E.g., “Would you give the transplant to the 70 year old or the 20 year old?” – Too simple

‘Creeping Paternalism’

A central issue in dealing with geriatric patients is what we might call ‘creeping paternalism’

– ‘Creeping’ because it sometimes operates unsaid

Tendency to assume that geriatric patients are not fully capable of making their own decisions

– Usually, but not always, for benign reasons– Often influenced by living situation of patient (e.g., children

acting as parents)

Paternalism

Generally shows up in

– Relaxed standards re. confidentiality (with family members)

– Increased willingness to seek consent from others

– Increased willingness to treat patient as incompetent

Competence/Capacity One element of a valid consent to medical

treatment or other health care is that it be made by a legally competent individual

Terms “competence” and decision-making “capacity” generally refer to this same issue

Except as defined in legislation, these terms may be used interchangeably

Competence/Capacity

Competence has tended in the past to be considered in an “all-or-none” sense:

i.e., the idea of a person being “declared incompetent” and losing rights re finances, property, voting, health care decisions, etc.

This is no longer the correct approach. Current thinking is that competence is both task-specific and time-specific.

Competence/Capacity

Approach to competence now a functional one, determined by a person’s ability to understand, retain and assess information in order to make a choice and then communicate that choice

In the health care context, it is the ability to understand information relevant to a health care decision and to appreciate the reasonably foreseeable consequences of a decision (or lack of decision)

Competence/Capacity - Ethical Importance Competent patients are, by definition, able to give

informed consent to treatment

The importance of informed consent is supported both by

– the principle of autonomy - respect for persons requires respecting their informed decisions

– the principles of beneficence/non-maleficence - generally, an informed patient is a good judge of what broad sort of treatment is in his/her best interest

Competence/Capacity - Legal Significance In law, competent patients entitled to make

their own informed decisions

Legal presumption that adults are competent

If a patient is incapable, physician must obtain consent from a substitute decision maker

Advance Health Care Directives Act

A competent person may make an advance health care directive [s. 3]

Definition of competency [s. 14]

– A maker shall be considered competent to make an advance health care directive where he or she is able to understand the information that is relevant to making a health care decision and is able to appreciate the reasonably foreseeable consequences of that decision.

Presumption that person 16 or older is competent [s. 7]

Advance Health Care Directives Act

Advance health care directive may contain:

– instructions or general principles re health care treatment and/or

– appointment of substitute decision-maker [s. 2]

Formal requirements:

– in writing,– signed by maker, and– two independent witnesses [s. 6]

Advance Health Care Directives Act

An advance health care directive comes into effect when maker ceases to be competent to make and communicate health care decisions, and lasts for duration of incompetence [s. 4]

As long as patient is competent, can revoke/ revise advance health care directive [s. 8]

A health care professional who has a copy of an advance health care directive must include it in patient’s medical record [s. 17]

Advance Health Care Directives Act

Where health care professional has patient who requires health care but lacks competency to make health care decision, must make reasonable attempt to determine whether patient has substitute decision maker who is available

Emergency exception - SDM’s consent not required where health care necessary to preserve life or health and delay in finding SDM may pose significant risk to patient [s. 9]

Advance Health Care Directives Act

Hierarchical list of substitute decision-makers if one not appointed, or appointed person is unable/unwilling to act: [s. 10]

– next of kin– last on list is the health care professional

responsible for the proposed health care– in advance directive can also identify person you don’t want as substitute decision-maker

– SDM must have had personal contact in last year

Advance Health Care Directives Act

If joint SDM’s, majority rules [s. 11]

SDM must act in accordance with:

(a) directions in advance health care directive;(b) the wishes of the patient as expressed to SDM when

competent; or(c) what the SDM believes to be the best interests of patient (if

(a) and (b) not available) [s. 12]

SDM entitled to information necessary to make informed decision [s. 22]

Advance Health Care Directives Act

Where doctor determines patient not competent to make health care decision:

– must document it in chart and – ensure patient is aware of right to contest

finding [ s. 15]

protection from liability for health care professional and SDM if acting in good faith [s. 19]

Neglected Adults Welfare Act Not commonly used piece of legislation

Definition “neglected adult”

– incapable of caring properly for him/herself because of physical or mental infirmity,

– not receiving proper care and attention, – refuses, delays or is unable to make provision for

proper care for self, and – is not suitable for treatment under Mental Health

Act

Neglected Adults Welfare Act

Reporting to social worker or Director who conducts an investigation

Application to judge for declaration of “neglected adult”

If finding made, judge may direct placement of individual

Other Issues Power of attorney, guardianship of estates

deal with financial issues, property

Mental Health Act

– deals with involuntary detention and treatment of persons with mental disorders (disease or disability of the mind) who require hospitalization in the interests of their own safety, safety of others (or safety to property)

– certificates signed by physicians– Mental Health Review Board