Journal of Gerontological Nursing

LEGAL ISSUES 

Ethical Dilemmas that Evolve into Legal Issues

Kay Weiler, RN, MA, JD

Abstract

Recently, I was asked to identify some of the ethical dilemmas that have evolved into legal issues for the elderly. The following is a brief overview of ethical problems that have precipitated responses from the legal profession. It is important to note two points at the beginning of this column.

First, this is not a comprehensive list of the ethical issues that have prompted a response from the law; and second, the legal response to the ethical issue is not necessarily a solution to the problem. Autonomy is the ethical principle that underlies the examples presented. Autonomy means that the person has the right of individual choice in decisions regarding health care treatment (Beauchamp & Childress, 1989).

The principle of autonomy seems readily apparent and easily applied to patients who are alert, oriented and participating in discussions regarding health care treatment. If the patient agrees with the suggested treatment plan there is little, if any, discussion of ethical issues. However, if an alert and oriented patient selects a course of action that is questionable or contrary to traditional health care standards, the ethical issue may be whether the patient has the right to make the decision. The ethical debate regarding the principle of autonomy may slip into the arena of the legal right to self determination.

The principle of autonomy becomes more difficult to apply to situations in which the patient is not, or never has been, capable of expressing a health care treatment preference. With this patient, the concept of autonomy may seem irrelevant because a comatose or profoundly impaired person does not have the cognitive skills to make an informed decision. With this person it seems logical that someone else must decide the course of action. However, an ethical issue may arise if the person had previously expressed clear health care treatment preferences, such as do not resuscitate, no dialysis, or no ventilatory support. Is autonomy lost because of the comatose state? Is autonomy only for those who can assert and defend it?

The legal response to these ethical questions has been the development of the living will and the durable power of attorney for health care. These documents identify mechanisms that allow a capable adult to provide health care treatment instructions to be followed in the event that the person becomes incapable of participating in the decision. If the patient experiences decision making incapacity, the goal is to have the family and health care providers look at the legal documents for direction regarding the patient's values and directions for care. The actual impact that these documents have upon the care that is delivered is continually being investigated. It does seem clear, however, that the execution of one of these legal documents is not a guarantee that the patient's treatment preferences will be followed.

For patients who have never had decision making capacity or who have lost their decision making capacity, the use of legal documents is not an option, because capacity is a requisite for the execution of the documents. For these patients an informal substitute decision maker, such as a family member, may be an option. However, if the health care providers require a more formal decision making arrangement, the only option may be to seek appointment of a guardian for the patient. The appointment of a guardian may be a time consuming and potentially expensive procedure that still does not guarantee that the patient's health care preferences will be identified or honored.

This brief description of how the law has attempted to respond to selected ethical issues involving individual autonomy does not address other important…

Recently, I was asked to identify some of the ethical dilemmas that have evolved into legal issues for the elderly. The following is a brief overview of ethical problems that have precipitated responses from the legal profession. It is important to note two points at the beginning of this column.

First, this is not a comprehensive list of the ethical issues that have prompted a response from the law; and second, the legal response to the ethical issue is not necessarily a solution to the problem. Autonomy is the ethical principle that underlies the examples presented. Autonomy means that the person has the right of individual choice in decisions regarding health care treatment (Beauchamp & Childress, 1989).

The principle of autonomy seems readily apparent and easily applied to patients who are alert, oriented and participating in discussions regarding health care treatment. If the patient agrees with the suggested treatment plan there is little, if any, discussion of ethical issues. However, if an alert and oriented patient selects a course of action that is questionable or contrary to traditional health care standards, the ethical issue may be whether the patient has the right to make the decision. The ethical debate regarding the principle of autonomy may slip into the arena of the legal right to self determination.

The principle of autonomy becomes more difficult to apply to situations in which the patient is not, or never has been, capable of expressing a health care treatment preference. With this patient, the concept of autonomy may seem irrelevant because a comatose or profoundly impaired person does not have the cognitive skills to make an informed decision. With this person it seems logical that someone else must decide the course of action. However, an ethical issue may arise if the person had previously expressed clear health care treatment preferences, such as do not resuscitate, no dialysis, or no ventilatory support. Is autonomy lost because of the comatose state? Is autonomy only for those who can assert and defend it?

The legal response to these ethical questions has been the development of the living will and the durable power of attorney for health care. These documents identify mechanisms that allow a capable adult to provide health care treatment instructions to be followed in the event that the person becomes incapable of participating in the decision. If the patient experiences decision making incapacity, the goal is to have the family and health care providers look at the legal documents for direction regarding the patient's values and directions for care. The actual impact that these documents have upon the care that is delivered is continually being investigated. It does seem clear, however, that the execution of one of these legal documents is not a guarantee that the patient's treatment preferences will be followed.

For patients who have never had decision making capacity or who have lost their decision making capacity, the use of legal documents is not an option, because capacity is a requisite for the execution of the documents. For these patients an informal substitute decision maker, such as a family member, may be an option. However, if the health care providers require a more formal decision making arrangement, the only option may be to seek appointment of a guardian for the patient. The appointment of a guardian may be a time consuming and potentially expensive procedure that still does not guarantee that the patient's health care preferences will be identified or honored.

This brief description of how the law has attempted to respond to selected ethical issues involving individual autonomy does not address other important ethical questions such as: How will our society allocate resources to meet the costs of expensive, longterm care for individuals who are elderly and have an excellent or poor prognosis? May a person make the decision that life is no longer valuable and ask the health care provider for aid in dying?

REFERENCES

  • Beauchamp, XL., & Childress, J.F. (1989). Principles of biomedical ethics, third edition. New York: Oxford University Press.

10.3928/0098-9134-19950501-12

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