LEGAL AND ETHICAL CONSIDERATIONS FOR ELDER CARE

Legal issues in healthcare are set by federal and state laws, and ethical issues are concerned with what is the “right” thing to do. Primary ethical principles in healthcare include:

  • Autonomy: The right to control one’s destiny
  • Beneficence: The duty to do good for others and avoid harm
  • Nonmaleficence: Doing no harm and avoiding negligence that leads to harm
  • Justice: Fairness in the treatment of others

Acknowledging and acting on the wishes of an older adult are a critical component of legal and ethical care (Shah et al., 2020).

Informed Consent

One of the main legal and ethical issues is that of informed consent. Informed consent is a routine and fundamental part of provider-patient interactions and includes the process of educating a patient about risks, benefits, and alternatives of a given intervention. Informed consent originates from the patient’s right to autonomy, and the patient must be competent to make a voluntary decision about whether to undergo the intervention.

Age-related factors of concern in obtaining informed consent may include

  • Hearing and visual impairments
  • Impaired communication (written and verbal)
  • Values and beliefs
  • Fluctuating or diminished decision-making capacity

Implicit in providing informed consent is an assessment of the patient’s understanding, rendering an actual recommendation, and documentation of the process. The following are the required elements for documentation of the informed consent discussion:

  1. Nature of the intervention
  2. Risks and benefit of the intervention
  3. Reasonable alternatives
  4. Risks and benefits of alternatives
  5. Assessment of the patient’s understanding of elements 1 through 4

Exceptions to the requirement include:

  • The patient is incapacitated
  • Life-threatening emergencies with inadequate time to obtain consent
  • Voluntary waived consent
    (Shah et al., 2020)

Healthcare Proxies

A healthcare proxy is a document that names someone to act as a substitute for another person (proxy). This individual is granted the legal authority to express a patient’s wishes and make healthcare decisions if the patient is unable to do so for themself. A proxy may also be called a durable medical power of attorney, healthcare agent, or healthcare surrogate.

In a situation where a patient is unable to make an independent decision but has not designated a decision maker, state law hierarchy must be consulted to determine who should be the legally authorized representative. Many states have ordered lists, such as: parents of minors, spouse, adult child of senior, next-of-kin, even down to “close friend.” Some states designate an ethics committee to serve as a proxy. If the search for a legally authorized representative is unsuccessful, a legal guardian may be appointed by the court (Medicare Interactive, 2020).

Advance Directives and Living Wills

Advance directives and living wills are written legal documents giving instructions to family members, healthcare providers, and others about the kind of care the person may want if incapacitated by a temporary or permanent injury or illness. The federal Patient Self-Determination Act requires hospitals to inform patients that they have a right to complete an advance directive, but specific requirements for advance directives are covered under state law and may differ from state to state.

It cannot be assumed that family members would automatically be able to made decisions, and rules vary greatly from state to state. In some cases, decisions are left up to the healthcare providers and institutions unless someone has been appointed legal representative. To avoid disagreements, advance directives and living wills help ensure that decisions made meet the person’s needs and preferences.

In general, state laws do not require physicians to obey living wills; instead, they relieve physicians of all liability if they obey them. Some states, however, have found common-law damages flowing from harmful failure to obey living wills (Medicare Interactive, 2020).

Advance directives should address possible end-of-life care decisions and may include any of the following medical decisions:

  • Cardiopulmonary resuscitation (CPR)
  • Intubation/mechanical ventilation (do not intubate, or DNI)
  • Artificial nutrition/hydration (ANH)
  • Dialysis
  • Antibiotic or antiviral medications
  • Comfort care (palliative care)
  • Organ and tissue donations

It is not necessary to have an advance directive or living will to have do not resuscitate (DNR) / do not attempt resuscitation (DNAR) and do not intubate (DNI) orders. To establish these preferences, the patient must inform the provider, who will write the orders and put them in the patient’s medical record.

Once advance directives or living wills are completed, people are advised to:

  • Put the original in a safe but easily accessible place.
  • Give a copy to their provider.
  • Give a copy to their healthcare representative.
  • Keep a record of who has the advance directives.
  • Carry a wallet-sized card that indicates advance directives have been made and where a copy can be found.
  • Carry a copy when traveling.
    (Mayo Clinic, 2020g)

Orders for Life-Sustaining Treatment

In some states, advance healthcare planning includes documents referred to as Physician Orders for Life-Sustaining Treatment (POLST). POLST programs in each state choose their own names, but for simplicity POLST is commonly used to refer to such programs in general. Examples of other names include MOLST (Medical Orders for Life Sustaining Treatment), COLST (Clinician Order for Life Sustaining Treatment), etc.

Such a document is intended for those who have already been diagnosed with a serious illness; however, it does not replace other directives. Instead, it serves as physician-ordered instructions (similar to a prescription) to ensure that, in case of an emergency, the patient receives the treatment preferred.

The POLST remains with the person and is prominently displayed in the person’s home or the facility in which the patient is receiving care or residing. Such a document may address:

  • Cardiopulmonary resuscitation (DNR)
  • Intubation/mechanical ventilation (do not intubate, DNI)
  • Artificial nutrition/hydration (ANH)
  • Use of antibiotics
  • Requests not to transfer to an emergency room
  • Requests not to be admitted to the hospital
  • Pain management

The document also indicates what advance directives have been created and who is the legal healthcare representative (House & Ogilvie, 2020).

CPR VERSUS DNAR ORDERS

Do not attempt resuscitation (DNAR) orders (as differentiated from similar do not resuscitate [DNR] orders) include the term attempt in order to emphasize the minimal likelihood of successful cardiopulmonary resuscitation (CPR). Patient and family education addresses not only the unlikely success of resuscitation attempts but also the risks involved, which include fractured ribs, damaged internal organs, and neurologic impairment.

Although the patient (or family) must ultimately decide whether to attempt CPR, healthcare providers explain that withholding CPR does not equate with letting someone die. Rather, a DNAR order is best considered in the context of the complex medical situations that can occur. A decision to withhold CPR should take into consideration the patient’s wishes (as outlined in the living will) and their resulting quality of life.

Artificial Nutrition and Hydration (ANH)

People with advanced age, multiple comorbidities, progressing or life-limiting illness, Alzheimer’s disease, or other dementias may eventually experience a loss of interest in eating or drinking or forget how to feed themselves or even how to eat. These changes may cause distress, especially for family members and caregivers, and may lead to a discussion about artificial nutrition and hydration.

ANH should be discussed with the patient’s wishes and expected outcomes in mind. Older adults who feel strongly that they do not want to have tube feedings should specify this wish in their living will. ANH is considered a medical treatment and can be accepted or rejected as a patient decision. Evidence no longer supports the use of ANH for patients who are at end of life or in advanced stages of dementia (Tabloski, 2014).