Ethics and Aging
Bruce J Toppin
Vice President and General Counsel
North Mississippi Health Services
Ethics and Alzheimer’s
 Patient has Alzheimer’s, the spouse has cared for patient for
years at home and is now tired; spouse walks into the ED of a
small community hospital brings his suffering spouse to the
nurse hands the nurse a piece of paper with some
information about his spouse’s health condition and walks out
, drives away and won’t return any phone calls.
Ethics v Law
 It may be legally correct but not ethical
 Occasionally it may be illegal but ethical
 Age is a question of mind over matter. If you don’t mind, it
don’t matter.- Satchel Paige
Legal Issues for Aging
 Advance Directives for Health Care
 Power of Attorney
 Abuse
 Privacy
 Religion and Healthcare
MS. 41-41-201 et. seq
 Advance Directive
 Withdrawal of life sustaining treatment, including nutrition
and hydration
 Consent for treatment- test, surgical procedures,
medications and DNRs
 Limitations on treatment
Who may act on behalf of the patient
 Consent for competent adults over the age of eighteen:
 1. By the adult for himself or herself
 2. By the designated agent for health care if the patient is incompetent or
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incapacitated
3. By the spouse if the patient has no designated agent and if the patient is
incompetent
or incapacitated
4. Patient’s adult children if the patient is incompetent or incapacitatedmajority rules
5. Parent of the patient
6. Any next closest relative if none of the above apply
7. If no relative is available or no agent for healthcare, then any competent adult
who has been known to care for the patient
8. A conservator or guardian of the patient by court order--a court order
overrides any of the above.
When may a surrogate make decisions
for a patient?
 Section 41-41-211- when the patient has been determined by
the primary physicians to lack the capacity to make decisions
 Determination may or may not be made under the auspices
of a court of competent jurisdiction
Ethical Question
 Decision making capacity of the patient:
 Evidencing a choice- capacity if based upon not the quality of the
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choice but the ability to make a choice
Reasonable outcome of choice- patient’s capacity to reach the
reasonable or right or responsible choice
Choice based upon rational reasons- choice in favor of treatment
Ability to understand- risk, benefits and alternatives
Actual understanding- fully competent
Patient
 Elderly Patient refuses dialysis
 No other medical conditions
 Multiple medical conditions
 Prior kidney transplant
Power of Attorney
 MS Code 87-3-105, 107, 109, 111
 A person having the capacity may execute a power of
attorney
 Proper execution of documentation naming a conservator or
guardian
 Did the “principal “ have capacity
Ethical issue
 Multiple Power of Attorneys
 Effective date of Power of Attorney
 Date of execution v date of lack of capacity
 Is the use of the financial resources in the best interest?
MS. Vulnerable Persons Act
 MS. 43-47-5
 "Abuse" means the willful or nonaccidental infliction of physical
pain, injury or mental anguish on a vulnerable adult, the
unreasonable confinement of a vulnerable adult, or the willful
deprivation by a caretaker of services which are necessary to
maintain the mental and physical health of a vulnerable adult.
"Abuse" includes sexual abuse. "Abuse" shall not mean conduct
which is a part of the treatment and care of, and in furtherance of
the health and safety of a patient or resident of a care facility.
"Abuse" includes, but is not limited to, a single incident
43-47-5
 "Exploitation" means the illegal or improper use of a
vulnerable adult or his resources for another's profit or
advantage, with or without the consent of the vulnerable
adult, and includes acts committed pursuant to a power of
attorney. "Exploitation" includes, but is not limited to, a
single incident.
43-47-5
 "Lacks the capacity to consent" means that a vulnerable adult,
because of physical or mental incapacity, lacks sufficient
understanding or capacity to make or communicate responsible
decisions concerning his person, including, but not limited to,
provisions for health care, food, clothing or shelter. This may be
reasonably determined by the department in emergency
situations; in all other instances, the court shall make the
determination following the procedures in Sections 43-47-13 and
43-47-15 or as otherwise provided by the general laws of the state.
43-47-5
 "Vulnerable adult" means a person eighteen (18) years of age or older
or any minor whose ability to perform the normal activities of daily
living or to provide for his or her own care or protection is impaired
due to a mental, emotional, physical or developmental disability or
dysfunction, or brain damage or the infirmities of aging. The term
"vulnerable adult" * * * also includes all residents or patients,
regardless of age, in a care facility for the purposes of Sections 43-47-19
and 43-47-37 only. The department shall not be prohibited from
investigating, and shall have the authority and responsibility to fully
investigate, in accordance with the provisions of this chapter, any
allegation of abuse, neglect, or exploitation regarding a patient in a care
facility, if the alleged abuse, neglect or exploitation occurred at a private
residence.
43-47-7
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43-47-7. Reporting abuse, neglect, or exploitation; establishment of central register;
confidentiality.
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(1) (a) Except as otherwise provided by Section 43-47-37 for vulnerable adults in care facilities, any person
including, but not limited to, the following, who knows or suspects that a vulnerable adult has been or is being
abused, neglected or exploited shall immediately report such knowledge or suspicion to the Department of
Human Services or to the county department of human services where the vulnerable adult is located:
(i) Attorney, physician, osteopathic physician, medical examiner, chiropractor or nurse engaged in the admission,
examination, care or treatment of vulnerable adults;
(ii) Health professional or mental health professional other than one listed in subparagraph (i);
(iii) Practitioner who relies solely on spiritual means for healing;
(iv) Social worker, family protection worker, family protection specialist or other professional adult care,
residential or institutional staff;
(v) State, county or municipal criminal justice employee or law enforcement officer;
(vi) Human rights advocacy committee or long-term care ombudsman council member; or
(vii) Accountant, stockbroker, financial advisor or consultant, insurance agent or consultant, investment advisor or
consultant, financial planner, or any officer or employee of a bank, savings and loan, credit union or any other
financial service provider.
(b) To the extent possible, a report made pursuant to paragraph (a)
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Ethical Issues
 Suspected abuse by caregiver (family or friend of patient)
 Suspected abuse by your coworker (e.g. nurse)
 Mental abuse- can you define it
Privacy
 HIPAA
 State laws
 The ways that patient information can be used and released
by members of the healthcare system,
 The rights that patients have concerning their information
and
 The responsibilities of providers who use and release patient
information
Privacy
 Doctors and other providers covered by HIPAA can share
needed information with family, friends, or with anyone else
a patient identifies as involved in his or her care as long as the
patient does not object.
 • The Privacy Rule also makes it clear that, unless a patient
objects, doctors, hospitals and other providers can disclose
information when needed to notify a family member, or
anyone responsible for the patient’s care, about the patient’s
location or general condition.
Privacy
 Unless the patient objects, basic information about the
patient can still appear in the hospital directory so that when
people call or visit and ask for the patient, they can be given
the patient’s phone and room number, and general health
condition.
 • Clergy, who can access religious affiliation if the patient
provided it, do not have to ask for patents by name.
Privacy-FAQ
 Does the HIPAA Privacy Rule change the way in which a person can grant
another person health care power of attorney?
 Answer:
 No. Nothing in the Privacy Rule changes the way in which an individual grants another
person power of attorney for health care decisions. State law (or other law) regarding
health care powers of attorney continue to apply. The intent of the provisions regarding
personal representatives was to complement, not interfere with or change, current
practice regarding health care powers of attorney or the designation of other personal
representatives. Such designations are formal, legal actions which give others the ability
to exercise the rights of, or make treatment decisions related to, an individual. The
Privacy Rule provisions regarding personal representatives generally grant persons, who
have authority to make health care decisions for an individual under other law, the ability
to exercise the rights of that individual with respect to health information.
Ethical Question
 Family member with DHC power of attorney won’t let
sibling see or know about mama’s condition and mama- while
suffering from dementia- voices a desire to see excluded
sibling
Joint Commission
 Hospitals seeking accreditation from the Joint Commission, a nonprofit
agency that accredits health care organizations, must now adhere to new
and revised standards intended to ensure that health care providers
communicate appropriately and effectively with patients.
 The new patient-centered communication standards are designed to
have a positive influence on patient-provider communication and on the
quality of hospital care (Joint Commission, 2010a). They focus on all
patients having their communication needs met. In particular, standards
support communication for the most vulnerable patients: those who
have no voice; have hearing, vision, or cognitive impairment; speak a
language other than English; have limited literacy or knowledge about
health care; or have sexual identity, cultural, or religious differences.
Joint Commission and Religion
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Q: Does the Joint Commission specify what needs to be included in a spiritual assessment?
A: No.Your organization would define the content and scope of spiritual and other assessments and the qualifications of the
individual(s) performing the assessment.
Examples of elements that could be but are not required in a spiritual assessment include the following questions directed to the
patient or his/her family:
Who or what provides the patient with strength and hope?
Does the patient use prayer in their life?
How does the patient express their spirituality?
How would the patient describe their philosophy of life?
What type of spiritual/religious support does the patient desire?
What is the name of the patient's clergy, ministers, chaplains, pastor, rabbi?
What does suffering mean to the patient?
What does dying mean to the patient?
What are the patient's spiritual goals?
Is there a role of church/synagogue in the patient's life?
How does your faith help the patient cope with illness?
How does the patient keep going day after day?
What helps the patient get through this health care experience?
How has illness affected the patient and his/her family?
Ethical Issue
 Spouse (caregiver and DHC power of attorney) and adult
children are Baptist, but patient who is not mental
competent was raised catholic and was faithful throughout his
life , now adult children are pressuring Mama to keep priest
away from Dad.
Final Ethical question
 Patient has Alzheimers, the spouse has cared for patient for years
at home and is now tired; spouse walks into the ED of a small
community hospital brings his suffering spouse to the nurse, hands
the nurse a piece of paper with some information about his
spouse’s health condition and walks out , drives away and won’t
return any phone calls.
 “The future isn’t what it use to be.”Yogi Berra
 btoppin@nmhs.net
 377-4229