Ethical/Legal Issues in Care of Geriatric Patients

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Ethical/Legal Issues in Care of Geriatric Patients

• Drs. Barbara Barrowman
• Andrew Latus
• ISD II
• June 6, 2003

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Schedule

• 930 1015 Lecture on Ethical/Legal Issues
• 1015 1045 Small Group Discussion
• 11 noon Group Reports/Panel Discussion

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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

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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 alzheimers, immature minors
• Differences Generalities about geriatric
  patients cannot be so easily drawn
• All 1 year olds are incompetent, but not all 90
  year olds

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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

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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

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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)

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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

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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

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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.

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Competence/Capacity

• Approach to competence now a functional one,
  determined by a persons 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)

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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

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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

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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

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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

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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
  patients medical record s. 17

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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 - SDMs 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

18
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
  dont want as substitute decision-maker
• SDM must have had personal contact in last year

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Advance Health Care Directives Act

• If joint SDMs, 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

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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

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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

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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

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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