Mr. Plawecki is Registered Nurse, Rehabilitation Hospital of Indiana, Indianapolis, and Dr. Amrhein is Resident Physician, Family Practice Medicine, Ball Memorial Hospital, Muncie, Indiana.
The authors disclose that they have no significant financial interests in any product or class of products discussed directly or indirectly in this activity, including research support.
Address correspondence to Lawrence H. Plawecki, RN, JD, LLM, Registered Nurse, Rehabilitation Hospital of Indiana, 4141 Shore Drive, Indianapolis, IN 46254; e-mail: Lawrence.firstname.lastname@example.org.
© 2009 iStockphoto LP/R. Sanchez
Time after time, professional nurses find themselves asking, “What should I do?”, “How should I handle this situation?”, and ultimately, “How do I best protect myself and consequently, my nursing license, while providing the best possible care for my elderly patient?” Never are these questions more troublesome and ethically challenging than when an elderly patient refuses consent to treatment or care. As the elderly population of the United States—those age 65 and older—continues to grow at a rate faster than any other demographic group (U.S. Administration on Aging, 2008), geriatric nurses will be confronted with these questions more frequently. The purpose of this article is to explore when a geriatric patient may refuse care or consent to treatment without the professional nurse facing legal liability.
A basic tenet of U.S. law is the principle of personal autonomy and self-determination (Miller, 2006). While not specifically referring to patient rights in health care situations, the U.S. Supreme Court, in the 1891 case of Union Pacific Railroad Co. v. Botsford stated that “no right is held more sacred or is more carefully guarded…than the right of every individual to the possession and control of his own person, free from all restraint or interference of others” (p. 141 U.S. 251). The legal right to refuse medical treatment was essentially born from this statement, which is as applicable and important today as it was when originally penned.
Within today’s health care system, all patients have certain rights (American Hospital Association [AHA], 1998). Initially, patients’ rights and their respective exceptions were determined by the laws and traditions of a particular location, termed the “locality rule” (Miller, 2006). Ultimately, the efficacy of a lawsuit was determined by whether the plaintiff could locate an expert witness willing to testify against a colleague. As time passed, these rights were adapted and amended as the culture of health care and the practice of law both changed.
An increasingly complex health care system within the United States created the need for firmer guidelines to ensure the rights of both health care providers and patients. In 1973, the AHA adopted A Patient’s Bill of Rights, which was later revised and approved in 1992 by the AHA Board of Trustees (AHA, 1998). Although the language of this bill was allowed to be tailored, translated, or simplified by specific institutions to meet the needs of their patients and staff, the AHA still expected A Patient’s Bill of Rights to be implemented (AHA, 1998). In addition, it must be noted that each of these rights may be exercised by the patient; a proxy decision maker on the patient’s behalf; or a delegated surrogate if the patient lacks the requisite decision-making capacity, is a minor, or is legally incompetent (AHA, 1998). The applicable sections of A Patient’s Bill of Rights are outlined below. Today, the AHA (2003) educates the public on what to expect during a hospital stay with a brochure entitled, The Patient Care Partnership: Understanding Expectations, Rights and Responsibilities.
A Patient’s Bill of Rights
Within A Patient’s Bill of Rights (1998), the AHA explicitly discusses the rights of someone seeking treatment to include both informed consent and refusal of treatment. Each right will be discussed, in turn, in the following paragraphs.
As described above, patients are due their right of informed consent. Informed consent may best be described in three parts, each essential to the ultimate determination of whether informed consent has been provided. The first element, explained by Hall, Bobinski, and Orentlicher (2003), is that the patient has the right to be informed about the kind of treatment or care suggested. Second, Hall et al. (2003) stressed that alternatives of the suggested care must be discussed with the patient before informed consent can be secured. Third, the patient’s voluntary and competent assent to that treatment must be obtained (Hall et al., 2003). In addition, Hall et al. (2003) detailed that the converse is also true: If consent must be secured from the patient before treatment can be provided, it logically follows that the same patient also possesses the right to withhold consent and refuse the suggested treatment.
The act of obtaining informed consent from geriatric patients is an increasingly important responsibility of professional nurses. In today’s health care settings, nurses, not physicians, are often charged with obtaining patients’ informed consent. Although nurses have a long history of explaining terms and procedures to patients, the act of procuring consent prior to treatment presents a new level of accountability and liability for geriatric nurses. The need for proper explanation and documentation is paramount.
According to A Patient’s Bill of Rights (1998):
3. The patient has the right to make decisions about the plan of care prior to and during the course of treatment and to refuse a recommended treatment or plan of care to the extent permitted by law and hospital policy and to be informed of the medical consequences of this action. In case of such refusal, the patient is entitled to other appropriate care and services that the hospital provides or transfer to another hospital. The hospital should notify patients of any policy that might affect patient choice within the institution.
In most legal proceedings claiming that a patient’s right to informed consent has been violated, plaintiffs are required to prove four elements if their action is to succeed. Hall et al. (2003) explained that the plaintiff will be required to prove:
- A specific risk that was not disclosed was involved with the procedure.
- The party obtaining consent violated the applicable standard of disclosure.
- The undisclosed risk occurred.
- The failure of the party to disclose the risk caused injury to the patient.
The entire claim, Hall et al. (2003
) explained, will fail if only a single element is disproved. Within the scope and practice of geriatric nursing, the first two elements are of the greatest concern.
Competency and Capacity
Prior to informed consent becoming effective, patients must be informed of their options, the alternatives, and the risks of each treatment modality. For this to happen, it must be determined that the elderly patient is capable of understanding the information presented and is able to make a decision. Patient’s competency and mental capacity must be evaluated.
Competency, as defined by Black’s Law Dictionary (Garner, 2006), is the “mental ability to understand problems and make decisions” (p. 122). In addition, capacity can best be described as a person’s mental ability to understand and comprehend both the nature and effect of one’s acts (Garner, 2006). In the United States, the strong legal presumption is that of continued capacity (Miller, 2006). Here, the law presumes that all individuals have the capacity to make decisions on their own behalf, and those who disagree or desire to refute that premise must prove otherwise (Miller, 2006). Usually, the determination of competency and capacity is a practical assessment made by the person obtaining consent or accepting refusal (Miller, 2006).
In the case of geriatric patients, professional nurses must be able to accurately assess whether the patient has the requisite level of understanding or competency to consent to or refuse treatment. For the majority of nursing professionals, this determination is completed by observing and interacting with the patient. With basic assessment skills and tools, nurses are able to interpret the patient’s competency and capacity. Many nurses perform a basic mental examination without realizing the value of such a simple assessment.
To determine a patient’s competency and capacity, nurses often conduct mental status examinations or evaluations. Numerous kinds and forms of such evaluations are available for free on the Internet. In addition, professional nurses may decide to use the official, copyrighted version of the Mini-Mental State Examination (Folstein, Folstein, & McHugh, 1975), which the physician or health care facility may also require. This version is available for use only through Psychological Assessment Resources, and a fee is charged for its use. Although the official version may not be readily available to some nurses or health care facilities, similar examinations may be performed that test patients’ cognitive function and search for any loss of function. Attention, recall, language, orientation, calculation, and motor skills are all fundamentals tested in these examinations. The most common steps in conducting these examinations are discussed below.
Conducting Mental Status Examinations and Evaluations
First, the professional nurse approaches the patient respectfully, asking him or her to participate in the examination. In all likelihood, the examination will be completed in approximately 10 minutes. With this approach, the nurse helps establish the necessary rapport with the patient. If the nurse callously or capriciously approaches an elderly patient, there is an increased risk the patient may refuse to participate in the assessment.
The most common elements of the examination include:
- Testing the patient’s orientation to person, place, and time.
- Conducting a serial seven test, where the examiner asks the patient to start with the number 100 and count backward by sevens.
- Asking the patient to repeat and then a short time later recall three common, unrelated items.
- Asking the patient to follow directions.
If the examiner believes the patient has diminished capacity or lack of competence, the nurse must document the patient’s inability and, therefore, cannot accept the patient’s determination regarding the course of treatment. If the patient is considered a competent adult with adequate decision-making capacity, he or she has the right to consent to or refuse treatment or medication, including lifesaving nutrition and hydration. Specifically, the U.S. Supreme Court, in Cruzan v. Director, Missouri Department of Health (1990), expressly stated that the U.S. Constitution grants a competent person a constitutionally protected right to refuse treatment. Mere disagreement with the decision of a competent, capable patient, however, cannot be regarded as incompetence or incapacity. Although the professional nurse may not agree with the proposed treatment option or the ultimate decision made by the geriatric patient, the right of refusal must be respected and honored.
In the United States, both personal autonomy and independent decision making are rights expected by its citizens. In no other arena are these rights as important or as discussed as in health care. Both the AHA and the U.S. Supreme Court have unequivocally stated that a competent, capable individual has the right to determine his or her own course of treatment. With such an inherent right, patients are also bestowed the right to refuse treatment if that is their informed decision. As the older adult population continues to grow, it is vitally important for professional nurses to assist in the evaluation of patients’ competence and capacity, educate them on treatment options, and advocate for their wishes.
- American Hospital Association. (1998). A patient’s bill of rights. Retrieved June 5, 2009, from the Patient Talk! Web site: http://www.patienttalk.info/AHA-Patient_Bill_of_Rights.htm
- American Hospital Association. (2003). The patient care partnership: Understanding expectations, rights and responsibilities. Retrieved July 6, 2009, from http://www.aha.org/aha/issues/Communicating-With-Patients/pt-care-partnership.html
- Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). Retrieved June 5, 2009, from http://supreme.justia.com/us/497/261/case.html
- Folstein, M.F., Folstein, S.E. & McHugh, P.R. (1975). “Mini-mental state.” A practical method for grading the cognitive state of patients for the clinician. Journal of Psychiatric Research, 12, 189–198. doi:10.1016/0022-3956(75)90026-6 [CrossRef]
- Garner, B.A. (Ed.). (2006). Black’s law dictionary (3rd pocket ed.). St Paul, MN: Thomson West.
- Hall, M.A., Bobinski, M.A. & Orentlicher, D. (2003). Health care law and ethics (6th ed.). New York: Aspen.
- Miller, R.D. (2006). Problems in health care law (9th ed.). Sudbury, MA: Jones and Bartlett.
- Union Pacific Railroad Co. v. Botsford, 141 U.S. 250 (1891). Retrieved June 5, 2009, from http://supreme.justia.com/us/141/250/case.html
- U.S. Administration on Aging. (2008). A profile of older Americans: 2008. Retrieved June 5, 2009, from http://www.aoa.gov/AoAroot/Aging_Statistics/Profile/2008/docs/2008profile.pdf