Ethical/Legal Issues in Care of Geriatric Patients

1. Ethical/Legal Issues in Care of Geriatric Patients Drs. Barbara Barrowman & Andrew Latus ISD II June 6, 2003

2. Schedule • 9:30 – 10:15 Lecture on Ethical/Legal Issues • 10:15 – 10:45 Small Group Discussion • 11 – noon Group Reports/Panel Discussion

3. 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

4. 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

5. 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

6. 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

7. ‘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)

8. 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

9. 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

10. 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.

11. 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)

12. 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

13. 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

14. 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]

15. 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]

16. 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]

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]

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 don’t want as substitute decision-maker • SDM must have had personal contact in last year

19. 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]

20. 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]

21. 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

22. 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

23. 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