Legal and Ethical Issues Common in Older Adults
By Jan Vinita White, PhD
Confidentiality: The
ethical and legal bedrock of the therapeutic relationship. Family involvement without the signed
permission of the client/patient violates the right of confidentiality. All clients/patients are entitled to
confidentiality unless they are severely confused, comatose, or decisionally
incapacitated (Beers & Berkow, 2000).
Autonomy:
“The right to control one’s destiny… to exert one’s will. The principle issue
revolves around whether the patient is able to assess the situation and make a
rational decision independently… the right to independent self-determination
regarding the course of their lives and issues concerning the integrity of
their bodies and minds” (Kane, Ouslander, & Abrass, 2004, p. 456-457).
Capacity: A clinical
determination of a person’s ability to make decisions about treatment and
other health-related matters. A person’s
autonomous right to make healthcare decisions may be compromised by a physician’s
finding that the patient lacks capacity.
Persons are considered to have decisional capacity if:
· They
understand their condition
· Understand
the benefits, burdens, and risks
· They
know the consequences of each treatment option
· Can
make a decision that is consistent over time
· Can
communicate that decision to others (Beers & Berkow, 2000; Kane, Ouslander,
& Abrass, 2004).
Partial
Capacity: The notion that older adults may have diminished or fluctuating capacity and are able to make some decisions. Short-term memory loss is relevant when
choosing treatment options, while they may be able to make decisions relevant
to the appropriateness of suggested treatments (Beers & Berkow, 2000). For
example, a person with MCI may have partial capacity.
Beneficence: The
duty or obligation to do good for others but without usurping their autonomy
(Kane, Ouslander, & Abrass, 2004).
Nonmaleficence:
“The obligation to avoid harm” (Kane, Ouslander, & Abrass, 2004, p. 457.
Paternalism:
With good intentions, a person usurps another’s autonomy in order to make
decisions for that person… as a parent might do for a child (Kane, Ouslander,
& Abrass, 2004). It is often found in medical situations where the older
patient is not asked about treatment decisions but a close family member
instead consulted instead, bypassing the autonomy of the older adult.
Informed
Consent: Weighing risks and benefits in order to make a rational
decision with as many facts and variables as possible and confirming that
decision after a period of time. In order to make a rational decision, benefits
and risks, the full range of options, and possible outcomes are presented in an
unbiased manner and without pressure (Kane, Ouslander, & Abrass, 2004).
Competence: A legal designation that recognizes that
persons beyond a certain age generally have the cognitive ability to negotiate
certain legal tasks, such as entering into a contract or making a will (Beers
& Berkow, 2000; Kane, Ouslander, & Abrass, 2004).
Incompetence: The
legal judgment that a lack of certain
abilities limits a person’s legal rights. When the court declares a person incompetent or
functionally unable to act in certain areas, a guardian is appointed (Beers
& Berkow, 2000).
References:
Beers, M.H., & Berkow, R. (Eds.). (2000). The merck manual of geriatrics (3rd
ed.). Whitehouse Station, NJ: Merck Research Laboratories.
Kane, R.L., Ouslander, J.G., & Abrass, I.B.
(2004). Essentials of clinical geriatrics (5th ed.). Hightstown,
NJ: McGraw Hill.
