Legal and Ethical Concerns

What is autonomy?

Personal freedom to direct one’s own life as long as it does not infringe on rights of others

What is an autonomous older adult?

Capable of rational thought and is able to recognize the need for problem solving

What is competency?

• A legal designation, determined by a judge

• Refers to the ability to fulfill one’s role and handle one’s affair in a responsible manner

• All adults presumed competent for participating in legally binding decisions

What is decision-making capacity?

• The ability to understand, make, and be responsible for the consequences of health care decisions

• A measure of older adult’s ability to make informed, logical decision about an aspect of health care

• A clinical designation, determined by a healthcare provider

What is shared decision making?

Collaborative process that enables patients and their providers to make health care decision together, based on discussion of the best scientific evidence available and the patient’s values and preferences.

What are advanced directives?

Legal documents that allow competent older adults to document medical care they would or would not want to receive if they were not capable of making decisions & communicating wishes

What are the durable power of attorney for health care?

• An advance directive that takes effect whenever someone cannot, for any reason, provide informed consent for health care treatment decisions.

• Because it enables a surrogate health care decision maker, also called a health care proxy, to represent the person during any time of incapacity, it is often considered the most important advance directive.

What is a DNR?

• Do not resuscitate

• A very specific type of advance directive that compels health care providers refrain from CPR if there is no sign of breathing or no heartbeat

• A DNR order does not mean that we withhold other medical treatments – We can provide O2, turn, medicate for pain, etc.

• “Allow a natural death” [AND] is a preferred term over DNR terminology – this is a legal intervention (Not used in all institutions)

What is a living will?

• A written expression of how you want to be treated in certain medical circumstances, usually end of life or terminally ill

• Purpose to guide decisions about care provided or withheld under certain circumstances

• Must be competent to initiate and can change or revoke at any time

• Applies only to situations where person is considered terminally ill & can’t speak for self

• Might address issues like Artificial Nutrition/Hydration [ANH], antibiotic usage, admission to acute care, etc

What to know about physician orders for life-sustaining treatment?

• Physician Orders for Life-Sustaining Treatment (POLST): Ensure that patient preferences are known and honored in all health care settings and situations.

  • A mechanism for making patient preferences into physician orders 

  • Addresses questions about treatment at the end of life

    • Code status

    • Designation: Comfort Care, Limited, Full Treatment

    • Antibiotics

    • ANH

What is included in advance care planning?

• Clarification of the person’s preferences and goals of care before a serious health event occurs

• Identification of trusted relatives or friends designated to make decisions on their behalf if the person becomes incapacitated

• Communication of these wishes to designated proxies

• Discussion of the person’s values related to health care outcomes

• Documentation of legal documents and conversations related to patient’s wishes in medical records

What are the resources for advance care planning?

• Advocacy groups encourage all adults to establish advance directives and to make their wishes known to their families and health care providers regarding health care decisions, particularly end-of-life care issues.

• For example, the organization Aging with Dignity promotes the use of the Five Wishes document for use as an advance directive.

• The Five Wishes document addresses the following:

  • Who you want to make care decisions for you when you cannot make them

  • What kind of medical treatment you want or do not want

  • The level of comfort you want

  • How you want people to treat you

  • What you want your loved ones to know

What is the resident’s bill of rights?

• Component of OBRA

• Under this provision, federal law requires that all residents of long-term care facilities are informed of their rights and that all long-term care facilities must have a mechanism in place for addressing complaints if residents think that their rights have been compromised.

• Moreover, facilities must post the Residents’ Bill of Rights and the resources for investigating complaints in a prominent place

• According to this law, “the resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility”

What are some rights of nursing home residents?

• The Right to Be Fully Informed

  • The right to daily communication in their language

  • The right to assistance if they have a sensory impairment

  • The right to be notified in advance of any plans to change their room or roommate

  • The right to be fully informed of all services available and the charge for each service

• The Right to Participate in Their Own Care

  • The right to receive adequate and appropriate care

  • The right to participate in planning their treatment, care, and discharge

  • The right to refuse medications, treatments, and physical and chemical restraints

  • The right to review their own record

• The Right to Make Independent Choices

  • The right to make personal choices, such as what to wear and how to spend their time

  • The right to reasonable accommodation of their needs and preferences

  • The right to participate in activities, both inside and outside the nursing home

  • The right to organize and participate in a resident council

• The right to Privacy and Confidentiality

  • The right to private and unrestricted communication with any person

  • The right to privacy in treatment and in personal care activities

  • The right to confidentiality regarding their medical, personal, or financial affairs

What are the ethical issues commonly addressed in gerontological nursing?

• Ethical questions are often associated with decision making, patients’ values, preferences, and quality of life.

• These issues range from seemingly inconsequential concerns like being able to choose the time that meals are served to decisions about how to provide nutrition and hydration to people who are at risk for aspiration.

• As with all ethical questions, answers are more often in the “gray area” rather than being “black and white.”

• The increasing attention to quality of care in long-term care settings in recent years has led to more emphasis on autonomy, individual rights, and quality of life for residents

• Ethical issues are often associated with this approach because it is not always easy to balance needs of individual residents with those of others and the institution itself

• Ethical issues are also associated with questions about safety versus freedom. Additional examples of ethical decisions that nurses in long-term care settings commonly address are as follows:

  • Using restrictive measures to address potential risks to safety

  • Restricting cigarette smoking

  • Allowing residents to refuse therapies, social activities, and food or fluid

  • Providing more care assistance than necessary because it is more time-efficient for the staff

  • Scheduling resident care practices for the convenience of the staff rather than according to individual preferences

  • Accommodating residents who wish to express sexual interests and activities

What to know about religion and culture?

• Religious teachings and other cultural factors have a strong influence on ethical issues, particularly regarding advance directives and decisions about ANH and end-of-life care.

• Because cultural factors influence health care providers as well as their patients/clients, examining one’s own biases and assuring culturally competent care.

• A major issue is that legal requirements related to advance directives are strongly biased toward Anglocentric cultures, with emphasis on individual autonomy.

• This approach is in stark contrast to other approaches that can be used for health care decisions, such as the family-centered decision making approaches that may be favored by Chinese Americans and Latin Americans

What is the role of nurses regarding legal and ethical issues?

• Implement advance directives

  • Nurses’ communication with and teaching older adults about
    advance directives and dispelling myths and misperceptions

• Promote caregiver wellness

  • Nurse as advocate (alwaysJ)

  • Education and clarification

  • Electronic resources, download Five Wishes document
    (conversation starter)