Legal and Forensic Medicine in Geriatrics 7Beverley Ferres

Abstract

The legal issues that intersect with medical practice in geriatric medicine are

many. Areas such as the assessment of capacity, the treatment and care of

patients who are unable to consent or refuse, dealing with possible elder abuse

and interfacing with courts or tribunals when required to provide medicolegal

reports or to give evidence are just a few.

This chapter illustrates the complex issues faced in the everyday practice of

geriatric medicine. A human rights framework and its importance in providing

assistance in resolving issues for clinicians, and new challenges to consider, are

highlighted. Common legal issues confronting clinicians such as capacity,

end-of-life care, and advance care directives are discussed.

Introduction

Issues which affect many areas in medicine also affect these areas in geriatric

medicine, although there are some particular issues which occur with greater

frequency.

Issues, such as capacity to make decisions, the assessment of capacity, consent to

medical treatment, and vulnerability, can affect people of all ages. From the very

young, to the very old, there are similarities but also differences. Young people

have life ahead of them; choices to make for themselves and capacity in making

decisions will hopefully be gained as maturity increases.

For the very old, life is nearing its end. Choices already made have shaped who

they are and what values they have adopted. Life’s experiences have generally

been many and varied and have also contributed toward shaping these value

B. Ferres

Bendigo Health, Bendigo, VIC, Australia

e-mail: BFerres@bendigohealth.org.au

R.G. Beran (ed.), Legal and Forensic Medicine,DOI 10.1007/978-3-642-32338-6_145, # Springer-Verlag Berlin Heidelberg 2013

91

systems. It is this that doctors aim to rely on in geriatric medicine, particularly for

those who have lost, or are in the process of losing, the capacity to make decisions

for themselves.

It is the differences from those legal issues in medicine that affect all ages, on

which this chapter focuses. This chapter provides an overview of the challenges

which face those who care for the older patient at the beginning of the twenty-first

century. It also challenges health professionals to be mindful of local and interna-

tional developments.

Human Rights Framework

When a medical practitioner is responsible for the health care of older people, he or

she may be called upon not only to assess capacity of a patient to make decisions for

themselves about health care but also to assess capacity of a patient to make

decisions about financial affairs or lifestyle. The importance of balancing one’s

duty of care as a doctor, against the need to respect patients’ rights to make choices

for themselves, has received increasing attention, particularly in Victoria, in view

of the Charter of Human Rights and Responsibilities Act (Charter of Human Rightsand Responsibilities Act 2006 (Vic)). The human rights embodied in the Victorian

Law, particularly in relation to freedom of movement and the right to choose where

a person lives and the right to privacy as contained in Sections 12 and 13 of the Act,

respectively, must be respected and promoted.

The ACT Human Rights Act (Human Rights Act 2004 (ACT)) was the first of itskind in Australia, but as yet there is no specific human rights charter in other

Australian states, other than Victoria, or in the Northern Territory. There is no

Commonwealth Charter at this time. The principles embodied in these acts are

relevant in general.

The issue of human rights is one of the challenges in geriatric medicine with

which doctors, and the community, must come to terms.

For a long time, the common law duty of care has given health professionals, and

in particular the medical profession, a defense for caring for patients with reduced

capacity within a secure environment. The potential of being sued in negligence for

breaching the duty of care, owed to the patient, should the patient suffer harm, has

reinforced this practice.

Consider the following hypothetical scenario which is not uncommon in an

inpatient setting in geriatric medicine.

Isabelle is an 89-year-old lady who has experienced a decline in her cognitive

function over the past 5 years. She is supported by family members who assist her

with shopping, transport, and provide some meals. The family has been concerned

that her poor memory may lead to her placing herself at risk by leaving the gas stove

on. On one occasion, she wandered to a nearby lake and the police were called. She

has also experienced three falls in the past 2 months, the last one leading to her lying

on the floor for several hours overnight before being found by her daughter. She is

admitted to hospital.

92 B. Ferres

The family members are concerned about her discharge home and tell the

hospital doctors in charge of her care that they will hold the doctors personally

responsible if their mother falls and breaks her hip, dies in a house fire, or drowns in

the lake.

This threat can generate disquiet in the minds of both inexperienced and

experienced doctors. Is this a justified stance for a family to take? What should

be the medical practitioner’s response?

The legal issues to be considered are does the health care of people in a secure

environment, for their safety, breach their human rights? Does the discharge of

a person to his or her own home, allowing him or her dignity to make decisions,

including “bad” decisions, possibly breach the health professional’s duty of care?

The consideration of these legal aspects, while helpful, will not necessarily give the

answer but will provide a framework with which to approach such problems. Once

issues are considered in light of this framework, along with ethical considerations

of respect for autonomy, beneficence, and non-maleficence, the medical practi-

tioner can provide justification for a recommendation according to this framework.

The United Nations’ Principles for Older Persons (http://www2.ohchr.org/

english/law/pdf/olderpersons.pdf) are helpful, outlining the principles of indepen-

dence, participation, care, self-fulfillment, and dignity. It is in the light of these that

the following case can be considered.

A patient with dementia who is confused, and likely to wander, is admitted to

a secure residential care facility. Under a human rights framework, this could be

considered to be a breach of human rights because the person’s freedom of

movement has been limited.

Has there been respect for independence? Has the person’s dignity been

respected? If the right to freedom of movement has been limited, can this be

justified or does there need to be legal protection for the practitioner who treats

this patient, and for the patient? Is the consent of the family, and the assent of the

person, enough justification? The United Nations Principles also outline rights in

relation to access to appropriate care with security, that is, in a safe environment.

Could this justify the doctor’s, and the facility’s, position?

In circumstances where a person needs treatment, against their will, for a mental

disorder, mental health laws in each jurisdiction in Australia allow for this as long

as certain criteria are met. They apply regardless of age. Mental health laws are not

generally applied for residents in secure residential aged care facilities. The resi-

dential care of older people, in secure facilities in Australia, generally still applies

the common law doctrine of best interests.

The Bournewood Case

In the UK, the view is that secure residential care is possible deprivation of liberty,

due largely to the finding in the Bournewood case, by the European Court of Human

Rights (HL v UK 45508/99 (2004) ECHR 471). The Department of Health in

the UK developed a procedure requiring application under the “Deprivation of

7 Legal and Forensic Medicine in Geriatrics 93

Liberty Safeguards” guidance (http://www.communitycare.co.uk/Articles/17/08/

2011/112480/the-deprivation-of-liberty-safeguards.htm), following amendments

to the Mental Capacity Act (Mental Capacity Act 2005 (UK) c.9, s4A). These

apply for residents of care homes in the UK who were previously cared for in

a secure environment under the common law doctrines of duty of care and

necessity.

There is now the requirement of an “authorization” from the local authority (if in

a care home) or the primary care trust (if in hospital) to keep someone in a secure

facility for “care.” These processes are to provide lawful authority for what is

otherwise considered, in that context, to be deprivation of liberty. In the

Bournewood case, appealed to the European Court of Human Rights, the court

held that the gentleman had his rights breached by being held, in a psychiatric

hospital in the UK, under the “best interests” common law doctrine. As he was not

an involuntary patient, he had no recourse under mental health law to challenge his

admission and detention.

In Australia, a guardianship application to the relevant court or tribunal will

often only be made when there is disagreement about the best interests of the person

concerned. The case in the UK could be seen as persuasive for the Australian

situation, but, as it currently stands, the common law doctrine of best interests still

applies in the absence of another legislative framework, such as mental health law.

It may be time to consider what the approach to similar situations in Australia

should be, given the appropriately increasing focus on human rights internationally.

The challenge for those practicing geriatric medicine is to continue to promote the

human rights of patients to achieve the right balance and the best outcome for them.

A possible “charter,” for the practitioner in geriatric medicine, is to work toward

assisting older patients to make decisions for themselves as long as possible, even

when capacity reduces, and to encourage and educate the medical profession in

general to do the same to reduce the paternalistic attitudes toward older people and

to promote freedom of choice for as long as possible, maintaining the often

precarious balance between human rights, the medical practitioner’s common law

duty of care, and the best interests of the person.

Listening to Patients

As people age, they may have difficulty with hearing and vision and may process

information slowly, even when there is no dementia evident. Older patients some-

times express concern that doctors, on ward rounds in hospitals, talk above them, not

to them, that they do not understand what has been said and they do not have the

opportunity to ask questions. It is crucial for doctors to listen to their patients, to take

the time to explain illnesses and treatment options, and to allow time for questions.

It is well established, in common law, that the doctor’s duty is to his or her

patient. Sometimes it is easy to be influenced by family members, and their

opinions, and it also becomes easy for the focus to shift away from the patient.

Taking the time to talk to older patients and to listen to their concerns will assist in

94 B. Ferres

the patient’s ability to give informed consent to treatment. Patients should not be

pressured to make decisions about medical treatment before they have had the

opportunity to understand and reflect on the information. This is good medical

practice. It is disappointing when patients make comments, after an adverse out-

come, indicating that if they had been told of the possibility of complications, they

would never have agreed to the treatment. With the pressures of modern medicine,

and the time constraints with which doctors are confronted, it is not easy to give the

time, but it is rewarding and necessary.

Assessment of Capacity

There are publications available to assist the medical practitioner in the assessment

of capacity [1], (Attorney General’s Department of NSW. Capacity Toolkit.

New South Wales Government; 2008). Medical practitioners may be asked to

assess capacity or to provide a legal report on a patient’s capacity to make particular

decisions. The law assumes that a person is competent to make decisions, unless

there is evidence to the contrary.

The request to a doctor, for an assessment of capacity, comes more frequently for

the older patient, where the imperative is greater for that patient to have his or her

affairs in order. A request can be made for a patient of any age. The request might

be for assessment of current capacity from the patient’s legal representative prior to,

for example, making a will or an enduring power of attorney or a request for a report

after the patient has died.

In the case of such a request for an opinion after the patient has died, medical

practitioners are reminded of the importance of keeping good documentation. If

there is no documentation, regarding the specific capacity in question, because no

assessment of such capacity was undertaken at the relevant time, then giving

a specific opinion is difficult. It may be obvious, from contemporaneous notes,

that a patient who is perhaps unable to recognize family anymore due to dementia

would by inference not have capacity to make a will, but often it is not as clear. If

asked for an opinion after the fact, one might not always be sure as to the patient’s

capacity, in relation to a specific matter, unless it was assessed at the time. It is

usually better to state this rather than to speculate on the capacity that the patient

might have had.

It is common for a geriatrician to be approached by a solicitor asking for

a retrospective opinion regarding capacity. This may occur in the context of

a will being contested, and the request may come some months or even years

after having seen the patient.

The legal issue, for a medical practitioner asked to assess capacity, apart from

the possibility of giving evidence to a court or tribunal regarding a patient’s

capacity, is that of balancing one’s duty of care to the patient against basic

human rights regarding privacy, freedom of choice about health, where to live,

and with whom to associate, where those wishes of the person might be in conflict

with others around them. The assessment of capacity might not be required,

7 Legal and Forensic Medicine in Geriatrics 95

or might not even be appropriate, as it could be seen as interference into that

person’s affairs and privacy. There is helpful clarification of capacity in the UK

case of Re T (Re T [1992] 3 WLR 782). The court outlines the requirements for

capacity in relation to medical treatment – that the person can understand the

medical information, can consider it; can arrive at a decision without coercion; is

not influenced by psychotic phenomena; and can understand the gravity of the

consequences if refusing treatment offered. The reasons for consenting, or refus-

ing, do not necessarily have to be given. These principles, although stated in

reference to medical treatment, can be applied as a useful framework to assess

capacity in other scenarios, such as making decisions about living circumstances,

or in the case of a patient who wants to self-discharge from hospital against

medical advice.

In some jurisdictions, laws define capacity in certain circumstances. In Victoria,

capacity in relation to consenting to medical treatment, or making financial powers

of attorney (Guardianship and Administration Act 1986 (Vic) s36(2)) (InstrumentsAct 1958 (Vic) s118), is contained in the relevant acts. These can provide some

guidance for doctors.

When assessing capacity, it is important to know in which area of decision

making that capacity is questioned. Capacity is situation specific. It is also impor-

tant to ask the patient open-ended questions about understanding rather than

questions requiring a “yes” or “no” response.

A patient’s capacity might fluctuate due to a medical condition, and

reassessment might be required to allow the most accurate assessment.

The medical practitioner’s common law duty of care, toward those without

capacity to make decisions about medical care for themselves, is to always act

in the best interests of those patients (Re F (Mental Patient: Sterilization) [1990]2 AC 1, 78).

Geriatricians find themselves confronting issues, such as these, for their patients

on a daily basis. It is important to be familiar not only with the assessment of

capacity but also with the laws which allow for alternate decision makers and with

advance care directives.

Alternate Decision Makers

Often older patients have not designated enduring powers prior to the loss of

capacity. This situation is slowly changing with good information and community

education.

Guardianship laws, in the states and territories of Australia, allow for legal

mechanisms for alternative decision makers to be appointed, in instances where

a disability exists which leads to incapacity in decision making and where a need

for such an alternative decision maker can be established. In all circumstances, the

least restrictive option, for the person, should be considered first and will also be the

consideration of a tribunal, prior to the legal appointment of an alternative decision

maker.

96 B. Ferres

In some instances, these laws allow for people to appoint their own decision

makers, should they lose capacity. In Victoria, the Guardianship and Administra-

tion Act of 1986 has, since amendments in 1999, allowed for a person, by way of

instrument, to appoint his or her own guardian and to specify the areas in which the

guardian is empowered to make decisions (Guardianship and Administration Act1986 (Vic) s35A). The Victorian Medical Treatment Act of 1988, by way of its

subsequent amendments in 1990, allows for the appointment of an agent to refuse

medical treatment, on behalf of the donor, should the donor lose capacity to make

such a decision (Medical Treatment Act 1988 (Vic) s5B).

Other states and the territories in Australia have similar laws. It is important for

a medical practitioner, working in the area of geriatric medicine in Australia, to be

familiar with the provisions of the relevant Acts. Questions can arise frequently in

medical practice concerning the appropriate alternative decision maker for an older

person who has temporarily, or permanently, lost capacity to make health-care

decisions.

Sometimes attorneys, appointed under such provisions, are not clear about the

authority the instruments give. If it is not immediately clear, it is prudent to suggest

that the attorney or agent might want to seek his or her own legal advice for

clarification. The instrument should provide reference to the Act of Parliament,

under which the instrument is made, and it may be wise to request a copy for filing

in the medical record.

Living Together in the Residential Care Setting

One of the situations which can confront the older person is the necessity, by reason

of failing health, to seek accommodation in a residential aged care facility. This

brings with it, apart from the complex financial decisions involved, the need to live

with people with whom the older person would ordinarily not have chosen to live. It

also raises the question, when an older person is failing to thrive in his or her home,

of the role of the doctor and the legal implications and mechanisms available to

either assist the person to remain at home and thrive or to assist them to move to an

appropriate care situation in a residential facility. The United Nations Principles

outline the need to balance freedom of movement and the right to choose where one

lives, with the right to access residential care which provides protection and

security.

Challenging scenarios can arise in communal living settings within residential

aged care facilities. Behaviors of concern, in those suffering from dementia, can be

triggered by the living situation and can result in requests for medication to help

manage the behavioral and psychological symptoms of dementia. Where these

cannot be managed with environmental modifications, following identification of

any possible triggers for the behavior, then consideration should be given to

whether the behaviors arise from psychotic symptoms which might justify the use

of antipsychotic medication. Consideration also needs to be given to the safety and

dignity of all. There are no easy answers.

7 Legal and Forensic Medicine in Geriatrics 97

Elder Abuse

The principles, in approaching the problem of possible elder abuse, are the same as

in any approach to the older patient: respect for the person; assisting them to make

decisions for themselves as far as possible; allowing the “dignity of risk”; and

balancing this “dignity” against the best interests of the person, particularly as they

lose capacity. Bearing in mind human rights legislation were enacted, and the need

to respect privacy and the right to freedom of movement and association, often

there will not be any need nor any right to interfere. Sometimes the vulnerability of

the older person who is losing capacity needs to be considered, within the context of

these laws, and it may be appropriate to make application to a guardianship tribunal

to hear a matter, following thorough assessment of capacity and consideration of

the need for protection against the need to respect privacy. If the assessment

outcome is that the person has capacity to make decisions for themselves, and

chooses not to receive assistance although vulnerable, then supporting the person

through this decision and regularly reassessing his or her needs might be all that is

possible. If there is no evidence of incapacity, then the guardianship tribunal will

have no role. In some instances, referring a person to a legal service or an advocacy

service for advice, with consent, may be appropriate.

In Australia, there is currently no statutory obligation to report elder abuse in the

community to any authority. If a reportable assault has occurred in a residential

aged care facility, the provider must report this to the police and also to the

secretary of the Department of Health and Ageing within 24 h. (Aged Care Act1997 (Cth) s63-1AA) (http://www.health.gov.au/internet/main/publishing.nsf/

Content/ageing-quality-guidelines-cr-ap.htm) The definition of reportable assault

is contained in Section 9 of the Act and “means unlawful sexual contact, unreason-able use of force, or assault specified in the Accountability Principles and constitut-ing an offence against any law of the Commonwealth or a State or Territory.”

Advance Care Directives

An advance care directive, for future health care in the form of a plan, can be written

by a patient while he or she has capacity. In some states in Australia, these have legal

status through either guardianship or powers of attorney legislation. Other states

allow for the appointment of an agent to act on behalf of the donor. The agent can

only make decisions for the person once capacity is lost, and it may be restricted to

decisions at the end of life when the treatment is considered burdensome.

In South Australia, a person can make an anticipatory direction under the

Consent to Medical Treatment and Palliative Care Act (Consent to Medical Treat-ment and Palliative Care Act 1995 (SA) s7), but the directive for refusal or consentto medical treatment only applies in the circumstance of the person suffering from

a terminal condition.

In Victoria, a person can refuse treatment under the Medical Treatment Act

1988, in relation to a current condition, but cannot as yet make a legally binding

98 B. Ferres

advance directive for any future condition. In discussion with the doctor, a person

can give an indication as to what his or her wishes might be, if a certain medical

condition develops in the future, and ethically the doctor may feel an obligation to

respect that patient’s wishes; however, there would be no legal obligation to do so

in Victoria. Once a patient develops a current condition for which they refuse

treatment, a doctor is legally obliged to comply with a Refusal of Treatment

Certificate, correctly made by the patient or in the case of incapacity, by a legally

appointed agent under the Medical Treatment Act (Medical Treatment Act 1988(Vic) s6).

One of the difficulties, for the medical practitioner in Australia, is the different

nomenclature used, different instruments, and lack of uniform legislation. A doctor,

who is unsure as to what applies, would be encouraged to seek advice from his or

her medical defense organization, the medical administration if working in

a hospital setting, or from a colleague with expertise in the area.

The Australian Health Ministers’ Advisory Council has produced a document

which addresses the complexities of advance care planning across the jurisdictions

in Australia which is a useful resource for those interested in this area (http://www.

ahmac.gov.au/cms_documents/AdvanceCareDirectives2011.pdf).

End-of-Life Care

End-of-life decision making is an area which regularly intersects with the practice

of geriatric medicine.

Those who practice medicine in the area of geriatrics need to be familiar with the

laws around alternative decision makers, particularly at the end of life, but also be

skilled in good palliative care in order to bring comfort to those who are dying. It is

important for the doctor to be clear about, not only the legal but also the ethical,

principles which underpin medical practice in this area and that the provision of

adequate pain relief, at the end of life, does not equate to physician-assisted suicide.

Respect for patients’ autonomy means that as far as is medically and legally

possible, their wishes should be respected. It is helpful if these can be expressed or

have been expressed in the past in discussions with their general practitioner,

physician, or surgeon. Sometimes patients will have expressed these wishes to

members of the family. When communicating with families, if the patient is no

longer able to express their wishes, and these are not already known through

previous communication or through a document, such as an advance care directive

or a legally appointed alternative decision maker, the doctor has to make a decision

about the most appropriate treatment or care that is in the patient’s best interests.

The doctor can take into consideration information communicated by the family,

about wishes the patient might have indicated to them in the past, but is not bound

by the wishes of the family members themselves.

The law does not require doctors to provide medically futile treatment to patients

and also has recognized that a patient has no legal right to demand such treatment.

This is relevant when making orders in respect of “not for resuscitation” or “do not

7 Legal and Forensic Medicine in Geriatrics 99

resuscitate.” The doctor needs to decide what is medically appropriate and then to

take into account the wishes of the patient, if these are known. If it is considered not

medically appropriate to offer cardiopulmonary resuscitation, then this should be

explained to the competent patient in a sensitive manner. The medical decision,

regarding resuscitation, can also be communicated to family in accordance with

good medical practice, if the patient no longer has capacity, or with the consent of

the patient if capacity is retained. Hospitals and health-care organizations will

usually have policies and offer guidance in this area.

Although there have been attempts, in Australia, to legalize euthanasia, specif-

ically in the Northern Territory (Rights of the Terminally Ill Act 1995 (NT)

(repealed)), euthanasia remains illegal in Australia.

This will not stop requests to end someone’s life, especially for those doctors

who look after patients faced with impending death. These requests can come from

patients themselves or from their relatives. Although it is understandable that these

requests will often be made out of distress, whether physical or psychological, it is

important to be aware of the legal position to be vigilant of the patient’s care and not

to be afraid to report a death to the coroner if there is suspicion around the

circumstances of that death.

Ready Reckoner

• It is important to take time to listen to older patients who might have sensory

impairment or may take longer to process information.

• Human rights issues, in relation to care of older people, involve careful consid-

eration of the balance between the right to freedom of movement, privacy, and

choice of living circumstances against the importance of the doctor’s duty of

care to the patient in a safe and secure environment for patients without capacity.

• Capacity is situation specific and can fluctuate. Assessment involves asking

open-ended questions, assessment of the understanding of information, and the

ability to demonstrate an appreciation of consequences.

• Dealing with elder abuse involves respect for the victim’s autonomy, assessment

of capacity, and supporting the victim to seek assistance advocacy or legal

advice. If the victim does not have capacity to make choices, application for

guardianship may need to be considered to promote safety.

• Doctors should be familiar with the roles of alternate decision makers for patients

without capacity and the relevant legislation in the jurisdiction of practice.

• Euthanasia remains illegal in Australia.

Cross-References

▶Advance Directives for Medical Decisions

▶Article 9 of the Convention on Human Rights and Biomedicine

▶Clinical Bioethics and Its Interface with Legal Medicine

100 B. Ferres

▶Clinical Neuropsychology and the Assessment of Capacity

▶European Convention of Human Rights and Biomedicine

▶ Informed Consent and Medical Law

▶Mental Capacity Considerations in Powers of Attorney and Enduring

Guardianship

▶ Patient Consent Conversation

▶Wills and Estates: Succession Law and Testamentary Capacity

References

1. Darzins P, Molloy DW, Strang D editors. Who can decide? The six step capacity assessment

process. Glenside SA 5065 Australia: Memory Australia Press; 2000.

Further Reading

Beauchamp TL, Childress JF. Principles of biomedical ethics. 6th ed. New York/Oxford: Oxford

University Press; 2009.

Skene L. Law and medical practice: rights, duties, claims and defences. Sydney: Butterworths;

1998. Reprinted 1999.

http://www.health.vic.gov.au/acp/. Accessed 12 Feb 2012.

http://www.un.org/en/events/olderpersonsday/index.shtml. Accessed 5 Feb 2012.

7 Legal and Forensic Medicine in Geriatrics 101