Gail A.Van Norman, M.D.
Assistant Professor of Anesthesiology
University of Washington, Box 356540
Seattle, WA 98195-6540
gvn@u.washington.edu

Introduction

Geriatric patients face special medical, economic and social challenges that affect the ethical and legal issues in their medical care. Ethical principles guiding the care of elderly patients are no different from those involved in the care of other adult patient populations. Common ethical challenges include conflicts over patient autonomy and choice, surrogate decision-making and do-not-resuscitate (DNR) order in the operating room.

Respecting Patient Autonomy

The ethical principle of respect for patient autonomy requires that medical decisions be made by the patient, whose life is directly and most affected by the consequences of the decision. Physicians can provide information, recommendations and rational argument to convince a patient to agree to medical therapies, but the ultimate decision of what will be done to them rests with the patient. The legal doctrine embodying this principle is that of informed consent and has been upheld in U.S. courts since 1914. ^1,2

Informed Consent

Informed consent requires several elements. First, consent must be voluntary and free of undue influence or coercion. Second, consent must be made based on sufficient information. Finally, the decision-maker must be able to understand the information given to them, apply it in some rational way to the medical issue at hand and arrive at a decision based in part on the information given to them.³ Patients have the right to refuse medical therapy, even if the decision is at odds with what the physician feels "is best" for them.⁴

Voluntary decisions, by definition, must be free of force, intimidation, duress or coercion. Social and economic pressures affecting elderly patients may hinder the ability of elderly patients to make truly voluntary choices. Pressures from family members to undertake, or not undertake medically onerous treatments can cause an elderly patient considerable duress. Economic pressures on patients with limited monetary resources may play a hidden albeit significant role in the patientās decisions. Fears of dependency or of burdening the family may encourage some patients to forgo treatment that might otherwise be beneficial. These influences affect any patient population, but geriatric patients are particularly likely to face such pressures while suffering from medical conditions that require difficult treatment decisions.

A patient must have sufficient information to give informed consent. In the "reasonable person" standard, used in about half of the United States, the physician must provide information that any "reasonable person" would need.¹ About half of the United States apply an "individual" standard, recognizing that some individuals may have special informational requirements. In general, patients should be told in lay terms the diagnosis to be treated, the proposed treatment, the foreseeable risks and benefits of the procedure and the viable alternatives to the procedure, including no treatment.⁵ Anesthesiologists should pay particular attention to explaining the risks of common problems that generally do not have significant long-term impact (e.g., nausea, sore throat, delirium) as well as rare problems that have significant long-term impact (e.g., death, neurologic injury, myocardial ischemia or infarction).⁶

"Competency," is a legal term describing a patientās ability to perform certain functions. Medical authors often refer to the ability of a patient to make medical decisions as "capacity" to distinguish it from the related legal term.⁷ Capacity is a relative, not an all-or-none, phenomenon. Incapacity to handle finances, for example, does not preclude capacity to make personal decisions about medical care.^8,9 Capacity can wax and wane with environmental factors, such as time of day, familiarity of surroundings, the presence of distractions and reactions to medications. Decision-making capacity can be impaired by medical conditions that afflict elderly patients, such as dementia, cerebrovascular accidents and depression. Physical impediments to communication that are more common in elderly patients, such as aphasia and hearing loss, can give the false appearance of impaired capacity when no impairment exists.

Determining that an elderly patient has the capacity to make medical decisions can be a challenge for the anesthesiologist, who is often a stranger to the patient, and has limited time and resources for making what can sometimes be complex determinations. Many patients who carry the diagnosis of dementia have sufficient abilities to make medical decisions, yet studies demonstrate that patients with dementia are likely to be referred for competency evaluations when they disagree with their physician, and are unlikely to be referred if they agree.¹⁰ When decisions are required regarding resuscitation in ICU patients, there is evidence that many physicians will not have discussed DNR decisions with competent patients either before or during the ICU stay.^11,12

Assumptions about patient capacity based on diagnosis categories or age is not consistent with ethical medical care. Determination of decision-making capacity should focus on the patientās functional capacity. Basic questions to ask include:

1. Can the patient receive and understand information relevant to the decision at hand?
2. Can the patient understand possible consequences of their choice and alternatives, including risks and benefits?
3. Can the patient make and express a decision and discuss his/her values and desires in relationship to the medical advice provided?

Some patients are clearly too impaired to make medical decisions, but when questions arise, expert consultation can be helpful, both in determining a patientās capacity to make decisions and in overcoming physical barriers to communication. Consent in impaired patients may required extra time, patience and effort, but anesthesiologists are ethically obliged to promote and respect the autonomy of patients in making medical choices.

Surrogate Decision-Making

When patients are too impaired to make medical choices, a surrogate decision-maker may be involved. Proxy decision-making is based on three assumptions:

1. That a competent patientās decisions can be implemented by proxy.
2. That the proxy will make the same decision that the patient themselves would make if they were competent (the proxy would "don the mantle" of the patient).
3. That, in the absence of proxies, doctors might act less out of interest for the patient than out of fear of litigation.

Usually doctors turn to family members, assuming that families have the patientās best interests at heart and, by virtue of coming from a common cultural background, are more likely to actually know what the patient would decide.¹³ But studies have shown that family proxy decision makers often come no closer than chance alone at predicting what a family member would want under hypothetical circumstances, and that proxies and patients infrequently discuss issues and values surrounding the use and withdrawal of life-sustaining technologies.^14,15 Moreover, it has been demonstrated that physicians are incorrect in predicting resuscitation preferences in 25 percent of their patients.¹⁶ Proxy decision-making is a poor substitute for patient decision-making and should be avoided unless the patient is truly unable to participate in decisions.

Mechanisms for proxy decision-making include living wills, durable power of attorney or legal hierarchies. Living wills (advanced directives) are documents of a competent patientās wishes, executed in front of qualified witness, which can then be used on occasions when a patient is no longer competent to guide medical decision-making. A durable power of attorney is a mechanism for the competent patient to designate a specific person as their proxy for medical decision-making should they later become incompetent. Each state has a legal hierarchy through which a medical decision-maker is appointed if the patient has not executed a living will or durable power of attorney. Sometimes the court may appoint a legal guardian apart from family or other surrogate decision-makers who is legally responsible for health care decisions for the patient.

Do Not Attempt Resuscitation Orders (DNR)

Any adult with decision-making capacity has the right to refuse specific medical interventions, including cardiopulmonary resuscitation, even in the operating room.

Studies have shown that DNR orders are frequently entered in patient charts without a discussion with the patient and informed consent, even if the patient is competent to participate in such a discussion.¹⁷ Physicians often turn to surrogate decision-makers and leave competent patients out of the decision-making process if the patient is elderly or carries the diagnosis of dementia. Paternalism (the doctor "knows" what is best), a desire to promote good and do no harm (the discussion might stress, and therefore harm, the patient) or more selfish motivations (the doctors wants to avoid a discussion that may be distressing to them) have been used as rationale to avoid having difficult conversations that are nevertheless ethically required.

The implications of cardiac arrest under anesthesia differ from those for arrest in other areas of the hospital; over 60 percent of patients resuscitated in the OR survive to discharge versus 7-17 percent of patients on the ward. ^18,19 This is probably because OR arrests are witnessed, receive immediate intervention, and usually occur from reversible causes--medication effects and hemorrhage, while arrests on the ward may go unwitnessed for varying lengths of time and are often related to the severity of the underlying disease process.

Cardiac arrests, resuscitations and outcomes are different between the ward and the operating room, but the moral principles governing conduct with respect to patient autonomy are the same. As with other medical interventions, patients must be given appropriate information and provide informed consent (or "informed refusal) for cardiopulmonary resuscitation in the operating room. Because some procedures commonly thought of as resuscitation (e.g., mechanical ventilation) may be required for the anesthetic care of the patient, the anesthesiologist should discuss the ways in which resuscitation can practically be limited in the OR and still permit reasonable anesthetic care to proceed.

References:

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