Medico-legal - Treating elderly patients

Dr Wendy Pugh advises how to fairly treat older patients.

The principles involved in providing care to elderly patients are the same as for any other category of patient. However, as one of the more vulnerable groups in society, there may be some specific medico-legal issues relating to treating such patients, including capacity, confidentiality and neglect.

Most elderly patients have the capacity to consent to treatment

Assessing capacity
Most elderly patients will have no problem understanding the nature of a proposed treatment and the associated risks, and you should work on the assumption that they have the capacity to decide whether to consent to or refuse any proposed treatment or intervention unless there is clear evidence to the contrary.

This is the first principle of the Mental Capacity Act 2005 (MCA), which provides a framework for the care and treatment of people who lack capacity to make decisions for themselves.

It is reflected in paragraph 64 of the GMC's new guidance, 'Consent: patients and doctors making decisions together' (2008), which came into effect on 2 June. It gives detailed guidance about the ways in which patients can be helped to make their own decisions if there are doubts about their capacity. Recommendations include engaging the help of a relative or carer and using simple language.

Planning for the future
The charity Age Concern predicts there will be 1.2 million people with dementia in the UK by 2050,1 the majority of them elderly.

Such patients, and those with other degenerative conditions, may increasingly decide to set out their wishes regarding future medical treatment or appoint someone with lasting powers of attorney to make decisions on their behalf when they no longer have capacity and it is important that GPs are aware of their responsibilities in this area as set out in the MCA.

Advance decisions, formerly known as living wills, have been given a statutory basis under the MCA. An advance decision can only refuse specific treatment; it cannot compel doctors to provide treatment to an incapable patient which is not in their best interests.

You may find that patients wish to discuss advance decisions with you and it is important they should have access to relevant information and advice.

Advance decisions can be oral or in writing and can be cancelled or altered at any time. However, if the patient wishes to refuse life-sustaining treatment, including artificial nutrition and hydration, the decision must meet specific requirements which are set out in paragraph 9.24 of the GMC guidance, such as the need for it to be in writing and signed by the patient in the presence of a witness.

Decisions on best interest
When it is determined that an elderly patient does not have capacity to consent to a proposed treatment, using the statutory test you will then need to decide whether treatment is in their best interests.

Paragraphs 75 and 76 of the GMC's consent guidance set out the principles to follow when making decisions where a patient lacks capacity and provides a checklist of items which must be considered as a starting point for such decisions, including:

  • Whether the patient's lack of capacity is temporary or permanent.
  • Which options for treatment would provide overall clinical benefit.
  • Which option, including the option not to treat, would be least restrictive of the patient's future choices.
  • Any evidence of the patient's previously expressed preferences, such as an advance statement.
  • The views of anyone the patient asks you to consult, or who has legal authority to make a decision on their behalf, or has been appointed to represent them.
  • The views of people close to the patient on the patient's preferences, feelings, beliefs and values, and whether they consider the proposed treatment to be in the patient's best interests.
  • What you and the rest of the healthcare team know about the patient's wishes, feelings, beliefs and values.

Appointing an IMCA
If a vulnerable patient without capacity has no friends or family members to consult about 'serious medical treatment',2 an independent mental capacity advocate (IMCA) must be instructed (unless it is an emergency). Responsibility for instructing an IMCA in a case of serious medical treatment lies with the NHS organisation providing the patient's healthcare and local arrangements will be in place with each IMCA service provider about the ways in which referrals can be made.

The IMCA should represent the patient in discussions to work out whether a proposed decision is in the patient's best interests and can also challenge decisions which appear not to be in a patient's best interests. Information provided by the IMCA must be taken into account by the doctor.

Confidentiality
In many cases relatives will be supportive and make a positive contribution to the care of an elderly patient.

However, even when a patient's relative escorts them into your surgery or is present during a home visit it is important to consider the patient's right to confidentiality and give him or her the opportunity to be seen alone if they wish.

If a relative wishes to know about your treatment of an elderly patient, you should follow the GMC's guidance Confidentiality: Protecting and Providing Information (2004).

Neglect
Doctors may come across cases where an elderly patient has been subjected to abuse by a relative, carer or someone in a position of responsibility.

If you suspect that an elderly patient is being abused, you have a professional and ethical duty to report it to the relevant authorities. Paragraph 29 of the GMC's confidentiality booklet offers advice on what to do if you believe a patient is a victim of neglect or physical, sexual or emotional abuse and the patient is unable to give consent for you to disclose it.

It states: 'You must give information promptly to an appropriate responsible person, where you believe that the disclosure is in the patient's best interests. If, for any reason, you believe that disclosure of information is not in the best interests of an abused or neglected patient, you should discuss the issues with an experienced colleague. If you decide not to disclose information, you must be prepared to justify your decision.'

In addition, the MCA has introduced a new criminal offence of ill treatment or wilful neglect in relation to those who lack or are believed to lack capacity. If convicted, people can be imprisoned and/or fined. It is designed to apply to those who have care of or are in a position of trust in relation to people lacking capacity or those believed to lack it.

  • Dr Pugh is a medico-legal adviser for the MDU

Learning points

1. Be prepared to offer information on advance decisions to elderly people, if requested.

2. An independent mental capacity advocate must be appointed if a vulnerable patient without capacity has no friends or family members.

3. Consider the patient's right to confidentiality even if a family member is present.

4. If abuse is suspected you have a professional and ethical duty to report it.

Resources

References

1. Paragraph 7.34, National Service framework for older people, Department of Health, 1 December 2004

2. Paragraph 10.45 of the MCA Code of Practice, DoH.

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