Legal Issues of Geriatric Patients: Competency and Decision-Making
by Eugene L. Lowenkopf, M.D.
| Geriatric Times |
 |
November/December 2001 |
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Vol. II |
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Issue 6 |
Due to medical advances during the last 50 years that have significantly
increased life expectancies, there has been a great increase in the number of
patients suffering from Alzheimer's disease (AD). Since elderly patients are
subject to many physical illnesses, the question of their competency to permit
or refuse treatment arises on an almost daily basis in every hospital and
physician's office.
Simultaneous with this increase has been growing concern about the right of
all patients in every age and diagnostic category to determine what care and
treatment they will or will not accept. This concern was first articulated 50
years ago in the Nuremberg Code. The code emphasized that valid consent for
treatment be based on the patient's having:
- adequate information about the treatment;
- freedom of choice with no coercion; and
- competency to make the decision.
The need to assure such self-determination was later reflected in the
guidelines put forth by the National Commission for the Protection of Human
Subjects of Biomedical and Behavioral Research (1979) and the American Hospital
Association's Patient's Bill of Rights (1992). A 1982 report by the President's
Commission on Ethical Problems in Medicine and Biomedical and Behavioral
Research recommended the development of clear policies to assess presence or
absence of competency. These policies and their applications are still
evolving, both in legislation and in clinical practice.
While definitions of competency may vary from state to state, four standards
are generally recognized (Appelbaum and Grisso, 1988). These are: appreciating
the situation and its consequences, understanding relevant information,
manipulating information rationally and communicating choices.
Appreciating the situation and its consequences means that the patient is
able to acknowledge the illness and how it will progress without treatment, as
compared to its response to treatment. The patient should be able to understand
the nature of the treatment and its risks and benefits. Rational manipulation
means that the patient can process the material intellectually to make a
decision, while communication means that patients can express their decisions
to the physician and maintain that decision over a period of time.
Perhaps the first place to begin is by making a correct diagnosis of the
patient's state and avoiding certain diagnostic traps. Not every geriatric
patient has AD, and not every patient with AD is incompetent. Certainly, when a
physician is faced with a non-cooperative elderly person, the possibility of AD
comes to mind; however, a number of factors serve to confound the diagnosis.
Personality traits tend to become more marked as one ages, sometimes mistakenly
leading to a diagnosis of AD. For example, caution in dealing with other people
may develop into suspiciousness and even mild paranoia with advancing years.
Similarly, thriftiness may progress to stinginess and severe monetary anxiety.
These exaggerated traits do not necessarily indicate disease or lack of
capacity.
There are other personality and behavior changes that may also lead to an
incorrect diagnosis. The elderly tend to have less energy than young people.
They may move around less and prefer to keep more regular hours. They may also
begin to think more about the past than they formerly did. These changes do not
of themselves indicate a diagnosis of AD.
Geriatric patients also tend to deal differently with life situations than
do younger individuals and often develop attitudes that may seem strange and,
perhaps, pathological to their juniors. For example, many elderly individuals
have suffered repeated losses of loved ones and often feel sad and lonely, and
they may have numerous physical illnesses and be preoccupied with issues of
physical health and limitations in functioning. This may lead to a more
philosophical attitude toward death and, in some cases, they may look forward
to it as a relief from an unhappy existence. Again, this does not mean that
they have AD or are incompetent.
In addition to these aspects of aging, there are other psychiatric disorders
and problems that one may encounter in the geriatric population. There may be
overt clinical depression, with suicide a distinct possibility. Elderly
patients may show psychological consequences of physical and metabolic
diseases; they may also be more susceptible to medication reactions, given
their tendency to be on numerous medications and to experience more side
effects than younger people. They may even have substance abuse problems, some
lifelong and some stemming from prescribed medications.
Even when a firm diagnosis of AD is made, it must be recognized that this is
a disorder in which both the rate of progress of the dementia and the duration
of illness are rarely predictable. The clinical picture may range from mild
impairment of memory, which may last several years, to severe loss of
intellectual function. This means that not everyone with this diagnosis is
severely incapacitated, and it is this variability that makes determining
competency difficult. There are many degrees of incompetency, and it is not an
either/or determination.
More to the point is whether or not a patient with some degree of AD has the
capacity to give informed consent for a medical or surgical treatment, to
decide what sort of living arrangements they desire, to make decisions about
hospitalization or other placement, or to be able to cooperate with a treatment
regimen. Most patients prefer to stay at home in their familiar surroundings,
no matter how strongly treatment in a hospital may be indicated. In this case,
they may well understand that they need the treatment suggested but do not wish
to move. Similarly, when ready for discharge, they may refuse to go any place
except home. Technically, they may be competent to make the decision in terms
of understanding the alternatives yet they may not make the choice desired by
their physicians and families.
Even when the physician feels strongly about their recommendations and even
when the patient's decision may have life-threatening consequences, the
patient's wishes must be respected, as a matter not only of ethics but of law,
unless incompetency can be proven. In point of fact, physicians are not
permitted to determine incompetency since that is a legal determination. They
are entitled to opinions concerning the patient's capacity to make
decisions.
To determine health care decision-making competency, a court may appoint a
psychiatrist to evaluate the patient and make appropriate recommendations. If
it is decided that the patient is indeed incompetent, then the court appoints a
guardian to make decisions for the patient.
Frequently, the matter is handled informally, without a legal determination
of incompetency taking place. The physician usually works with the spouse when
a patient lacks capacity or, if there is no surviving spouse, with children or
other close relatives. In most cases, there is agreement as to what course of
action to take; however, when more than one person is involved in decision
making, there is the possibility for disagreement among parties. The situation
becomes medically, legally and ethically tenuous for the physician who has to
decide with which of the conflicting parties to agree, and this might lead to a
formal request for a competency hearing and the official appointment of a
guardian.
Physicians may be placed in the position of outraging some member of a
family no matter what action is taken. This is the time, if it has not occurred
before, for the physician to meet with the family and explain not only the
medical problems but the legal issues that apply. It is important that they
recognize that physicians are not totally free to do as they wish with
patients, nor to comply with family wishes on all occasions. Physicians, too,
should be aware that their own personal wishes regarding treatment may have to
be set aside if patients and families do not agree with these
recommendations.
Sometimes, the physician's role is facilitated if there is a health care
proxy written and signed at a time when the patient had been fully competent.
As people enter the geriatric stage of their lives, these health care proxies
become much more relevant, since the possibility of incapacity becomes all the
greater.
A health care proxy does not invariably resolve the situation, however,
since there may be other opinions in the family concerning what should be done.
The same may occur with living wills, which are essentially formal expressions
of patients' wishes not to be resuscitated or to undergo heroic measures to
continue life. While patients may have had clear-cut ideas about what they want
and have appointed the individuals whom they feel are most likely to carry out
these wishes, this may also lead to conflict within the family, and proxies may
be subject to great pressure to conform with the wishes of other relatives.
This becomes especially obvious when it is a question of "pulling the plug."
Even though patients have made clear exactly what they want, family members
find it very difficult at times to go along with these requests.
The issue is a greater problem when psychological battles between family
members have existed before the current crisis or when large sums of money may
be involved in the patient's estate. These circumstances may influence the
decisions made by the family in regard to the patient, and the family may
subject the physician to enormous pressure to comply. This is another
eventuality that calls for the physician to meet with the family and explain
the legal issues.
Even when a health care proxy with advance directives has been written and
is in the hands of the proxy, the physician and the hospital, it is not always
honored. Hospitals go into automatic action when sick people arrive and attempt
to save lives, no matter what. Proxies held by families, friends, physicians
and even hospitals themselves are sometimes ignored, and a battle may ensue
between physicians and various relatives over whether to carry out the
patient's wishes, no matter how clearly they were stated. Hospitals and
physicians have been strongly criticized for not honoring proxies and have been
accused of pushing their own values and social philosophies on patients and
families (Hansot, 1996).
In determining capacity, it is essential that the physician make the correct
diagnostic assessment and attempt to reverse those factors that are reversible.
In case of doubts about capacity, a psychiatric consultation is advisable
before any recourse to legal decisions regarding competency. Proxies, of
course, should be honored, and there should also be recourse to a hospital
ethicist when there is contention among family members. It is essential to
recognize that physicians are not free agents in these determinations but are
mandated by regulations to follow certain principles enforcing patients' wishes
regarding their own fate.
Dr. Lowenkopf is a psychiatrist in private practice in Manhattan. He has
lectured widely and is the author of many articles on malpractice and other
forensic issues.
References
American Hospital Association (1992), A patient's bill of rights. Available
at: www.aha.org/resource/pbillofrights.asp. Accessed Sept. 27, 2001.
Appelbaum PS, Grisso T (1988), Assessing patients' capacities to consent to
treatment. [Published erratum N Engl J Med 320(11):748.] N Engl J Med
319(25):1635-1638.
Hansot E (1996), A letter from a patient's daughter. Ann Intern Med
125(2):149-151 [see comments].
National Commission for the Protection of Human Subjects of Biomedical and
Behavioral Research (1979), The Belmont report: ethical principles and
guidelines for the protection of human subjects of research. U.S. Department of
Health, Education and Welfare Pub. No. (OS) 78-0012. Available at:
http://ohrp.osophs.dhhs.gov/humansubjects/guidance/belmont.htm. Accessed Sept.
27, 2001.
President's Commission for the Study of Ethical Problems in Medicine and
Biomedical and Behavioral Research (1982), Making health care decisions: the
ethical and legal implications of informed consent in the patient-practitioner
relationship. Washington, D.C.: President's Commission for the Study of Ethical
Problems in Medicine and Biomedical and Behavioral Research.