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LEGAL AND ETHICAL ISSUES

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Copyright © 2004 by Thomson Delmar Learning. ALL RIGHTS RESERVED. 2

INTRODUCTION

Physician and other health care providers use medical and scientific knowledge along with clinical judgment and expertise to provide quality healthcare to keep you functioning and independent for as long as possible. However, in some situations, providing the best care requires choosing among conflicting responsibilities, values, and principles


Respecting Your Choices Informed consent

Decision-making capability

Judging the Capacity to Make Decisions

Advance directives Living wills

Durable power of attorney for health care

Problems with advance directives

The importance of communication

Choosing a surrogate decision maker

Acting in your best intertest

Preventing harm Placement issues

Abuse of elderly

Guardianship

Decision of people in nursing home

Life-sutaining treatment

DNR orders

Withdrawing treatment

Tube feeding

Active euthanasia

Assisted suicide


Respecting Your ChoicesInformed consentDecision-making capability


Informed consent

Informed consent is a legal doctrine stating that you have the power to choose among medically reasonable plans for your care.

Informed consent for research


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Informed consent requires effective communication between you and your doctor, and to be able to make informed choices, you need to discuss many things (as often as needed), including the following: your diagnosis the overall outlook the nature of the recommended test or treatments the various alternatives the risks and benefits of each alternative likely outcomes of each alternative


Decision-making capabilityThe process of informed consent makes sense

only for people who have the ability to make informed decisions.

This does not change unless the individual is determined to be "incompetent or incapacitated" by a court of law.

The terms "incompetent or incapacitated" are legal terms and apply specifically to legal cases in court


Judging the Capacity to Make Decisions





Advance directives


Living wills

Laws or legal opinions that authorize living wills. These are often called natural death, death with dignity, or right-to-die laws.

Generally, these laws allow you to direct health care providers to withhold or withdraw treatment that is keeping you alive if you become terminally ill and are no longer capable of making decisions.


Durable power of attorney for health care

The durable power of attorney for health care is more flexible and comprehensive than a living will.

It allows you to designate a surrogate decision maker, presumably a friend or relative, to make the medical decisions if you lose the ability to make them yourself.

You give the surrogate your informed consent (or refusal) while you are still capable.


Problems with advance directives

Advance directives have limitations. For example, an older adult may not fully understand treatment options or appreciate the consequences of certain choices.

Sometimes, people change their minds after expressing advance directives and forget to inform others. Many times, advance directives are too vague to guide clinical decisions.


The importance of communication

Good communication can resolve many problems posed by advance directives. You and your health care provider should routinely share information on advance directives.

A straightforward question you can ask to open the topic is: "Can we talk about how decisions will be made for my medical care in case I become too sick to talk to you directly?"


Choosing a surrogate decision maker

Traditionally, family members act as surrogate decision makers (or stand-ins) for incapacitated individuals, because most probably they best know the person’s preferences and will act in their best interests.

Family members are also normally consulted by the health care provider. However, the health care provider may sometimes decide that decisions by family members are questionable because of conflicting personalities, values, or interests.

In addition, some family members may be estranged or unwilling to make decisions, or they may disagree among themselves. In other cases, older adults have no surviving relatives.


Acting in Your Best Interests

If you have not given advance directives or appointed a surrogate decision maker, health care providers may have to base decisions on what is in your "best interest," by weighing the benefits and possible problems of treatment.

This is a complicated and often controversial process that requires dealing with such personal factors as pain and suffering, safety, and loss of independence, privacy, and dignity


Preventing Harm

Health care providers have a duty to use their expertise for the benefit of the people in their care.

However, you retain the right to refuse treatments that your health care provider considers to be in your best interest.


Placement issues

Preventing harm to an individual is often raised in decisions to place someone in a nursing home.

An older adult may wish to remain at home, but family member or caregivers may override this decision if they believe that living independently is not safe.


Abuse of older adults

Family members or other caregivers can sometimes become abusive for a variety of reasons.

These may include feeling overwhelmed and burnt out by caregiving responsibilities, lacking appropriate caregiving skills, or having no break from caregiving.


Guardianship

Some older people cannot manage their finances or provide themselves with food and shelter. Sometimes, relatives or friends make informal arrangements to help these individuals.

In other cases, it is necessary to ask the courts to appoint a guardian, as when property must be managed or sold to pay for long-term care.


Decisions for people in nursing homes

Nursing-home residents may need additional safeguards when decisions about life-sustaining treatments are made.

These people may not have close relatives to act on their behalf, and their relationships with health care providers may be superficial.

There are also fewer caregivers involved in decisions at nursing homes compared with hospitals.


Life-Sustaining Treatments

Advances in medical technology have often created medical dilemmas.

For example, health care providers may be able to successfully treat a sudden complication in a seriously ill person, but restoring function and improving the underlying disease may be impossible.

In such a situation, treatment that only prolongs life may be appropriately withheld.


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Do-Not-Resuscitate Orders

Cardiopulmonary resuscitation (CPR) may be an effective treatment for unexpected sudden death, but it is not effective for people whose death is expected.

Older adults generally do poorly after CPR because of serious illnesses and decreased functional status.


Withdrawing Treatment

Strange emotional feelings are a natural part of decisions to stop, withdraw, or withhold care.

We are torn between the impending sense of loss of our loved ones and our desire that their suffering be relieved and their dignity maintained.

Tube Feeding

Tube feedings clearly benefit people who want or agree to this treatment.

In addition, feeding provides more time to diagnose and treat underlying conditions.


Active Euthanasia

Active euthanasia (also called mercy killing) is illegal.

Requests for it generally arise because individuals suffer uncontrolled pain, demand more control over their care, or fear abandonment


Assisted Suicide

Statistically, older white men are at a greatly increased risk for suicide.

Most suicides are impulsive acts that are not well thought out.

Also, people who seriously consider suicide usually suffer from depression.

Because individuals who are incapacitated by depression cannot make informed decisions, family and friends are quite likely to get involved and seek medical advice.