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Legal Issues of Geriatric Patients: Competency and Decision-Making

by Eugene L. Lowenkopf, M.D.

Geriatric Times November/December 2001 Vol. II 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:

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.