Current Geriatric Diagnosis & Treatment, 1st Edition
Section IV - Special Situations
46. Common Legal & Ethical Issues
Marshall B. Kapp JD, MPH, FCLM
Many aspects of the medical care of patients throughout the age spectrum raise important legal and ethical issues. However, a variety of legal and ethical questions are either uniquely relevant to geriatric practice or take on added significance and special nuances when applied to the treatment of older individuals. Legally and ethically pertinent characteristics of older individuals include their greater likelihood to have impaired cognitive capacity, closer chronological proximity to critical illness and death, higher prevalence of serious and multiple chronic diseases and disabilities requiring long-term care, particular family dynamics, a more urgent need to engage in various aspects of life planning, and extensive reliance on public financing for their medical care.
INFORMED MEDICAL DECISION MAKING
Diagnostic & Treatment Interventions: Informed Consent
Under the ethical principle of autonomy or self-determination, every adult patient (with no upper age limit) has the right to make personal decisions regarding medical care, including decisions about which diagnostic and treatment interventions to undergo. This ethical principle has been translated into the legal doctrine of informed consent.
Although the patient has the right to decline a particular suggested diagnostic or therapeutic intervention, the principle of autonomy does not establish a right to demand tests or treatments that the physician believes would be worthless or even harmful to the patient. The clash between patient desires for aggressive medical intervention and medical skepticism about the value of such intervention has arisen most vividly in the context of futile life-sustaining medical treatments. There is broad consensus that physicians are under no ethical or legal obligation to provide, and indeed should not provide, futile or nonbeneficial treatment to a patient. However, enormous controversy continues about how one can reliably and fairly determine whether a particular intervention would be futile physiologically, quantitatively, or qualitatively for a specific patient.
In order for a patient's choice about any specific medical intervention to be considered an ethically and legally valid exercise of informed consent, 3 elements must be present. First, the patient's participation in the decision-making process and the ultimate decision must be voluntary (ie, free of force, fraud, duress, intimidation, or any other form of undue constraint or coercion).
Second, the patient's choice must be adequately knowing or informed. The physician must communicate in understandable lay terms material information about the patient's situation (ie, information that might make a difference in how an ordinary, reasonable patient would think about the choices involved). Particular pieces of data that should be shared with the patient include the diagnosis, nature, and purpose of the proposed interventions; reasonably foreseeable risks; probability of success; viable alternatives and their anticipated benefits and risks; the result expected without the intervention; and advice (ie, the physician's recommendation).
Third, valid decisions require a capable decision maker. A patient must be cognitively and emotionally able to weigh alternatives rationally. Our culture starts with a legal and ethical presumption that every adult is sufficiently capable of making his or her own medical decisions. For some geriatric patients, however, this aspect of medical decision making may be problematic. When a patient lacks adequate capacity, someone else must act as decision maker on the patient's behalf; the subject of surrogate decision making is discussed later.
A determination of one's mental competence technically is a legal matter resolvable only by a court and carrying clear legal consequences. As a practical matter, however, formal judicial proceedings for this purpose are rare. Most of the time, the attending physician, in collaboration with other members of the health care team, makes clinical, working, de facto judgments about a patient's present decisional capacity.
There exists no single, uniform, scientific standard of legal competence/decisional capacity. Questions that should be included in the physician's inquiry about a patient's capacity are as follows:
- Can the person make and communicate (verbally or otherwise) any choices regarding medical interventions?
- Can the person express any reasons for the choices made (to indicate that some reasoning process is taking place)?
- Are the stated or apparent reasons underlying the person's choices rational in the sense that the person starts with a factually accurate understanding of the medical situation and can reason logically to a conclusion?
- Does the person understand or appreciate the implications, including the likely personal risks and benefits, of the alternatives presented and choices made?
Several considerations should guide the physician's assessment of a patient's decisional capacity. Foremost, capacity is a matter of whether the patient has a minimal degree of functional ability, regardless of the clinical diagnosis or whether the physician personally agrees with the patient's decision. Capacity needs to be determined on a decision-specific basis. A patient may be capable of rationally making certain kinds of decisions but not others. How much intellectual and emotional capacity is necessary depends on the difficulty and seriousness of the decision being faced. Partial or limited capacity is not synonymous with incapacity. The patient may be capable enough to make the specific decision in question.
Decisional capacity is variable, rather than steady state, in many older patients. It may wax and wane in particular cases depending on environmental factors, such as time of day (eg, sundowning), day of the week, physical setting, presence of acute or transient medical problems, other persons involved in supporting or pressuring the patient's decision, or reactions to medications. Physicians often can affect patients' capacity for better or worse through their care (eg, choice and timing of medications). Physicians should try to communicate with patients about their care as much as possible during the patient's windows of lucidity.
Additionally, many older persons may be capable of assisted consent with extra time and effort on the physician's part, especially if a person has supportive family or friends available. For instance, an older patient who cannot process information as swiftly as a younger person may be able to understand the complexities of a proposed test or treatment if afforded enough time and emotional support.
Surrogate Decision Making
When a patient is determined to lack present decisional capacity, decisions must be made for that patient by a surrogate or proxy. One may obtain formal legal authority to act as a surrogate for medical decision-making purposes either through a judicial guardianship order or the patient's having executed in a timely fashion a durable power of attorney (DPOA).
Creation of a guardianship or conservatorship (precise terminology varies among jurisdictions) is the chief means of transferring decision making to a surrogate without the patient's permission. This entails appointment by a state court (in most jurisdictions, the probate division) of a surrogate (the guardian or conservator), who is empowered to make certain decisions on behalf of an incompetent person (the ward). Ordinarily, this occurs in response to a petition filed by the family, a health care facility, or the local adult protective services (APS) agency. The legal proceeding involves review by the court of the sworn affidavit or live testimony of a physician who has examined the alleged incompetent person. Most courts prefer to appoint a relative of the ward to act as guardian; in the absence of a family member who is willing and able to act in that role, however, a court may appoint someone else (eg, a close friend) or a public guardian or volunteer guardianship program if those options are locally available.
Because creating total, or plenary, guardianship usually entails an extensive deprivation of an individual's basic personal and property rights, the least restrictive/least intrusive alternative doctrine makes limited or partial guardianship preferred. In every jurisdiction, courts possess the statutory authority to limit the surrogate's power in terms of duration and types of decisions covered.
The modern trend in surrogate decision making has been toward the substituted judgment standard. Under this approach, the guardian is required to make the same decisions that the patient would make, according to the patient's own preferences and values to the extent they can be ascertained, if the patient were able to make and express competent decisions. The substituted judgment standard is highly consistent with respect for patient autonomy. When it cannot reasonably be ascertained what the patient would have decided if competent, the guardian is expected to rely on the traditional best interests standard. That test mandates that decisions be made in a manner that, from the guardian's perspective, would confer the most benefit and the least burden on the ward.
- DURABLE POWER OF ATTORNEY
A person may take steps while still decisionally capable to anticipate and prepare for eventual incapacity by voluntarily delegating or directing future medical decision-making power. The DPOA is a legal document, explicitly authorized by state statute, in which a competent
individual (the principal) directs, through the appointment of an agent (the attorney in fact, who need not be an attorney at law), the making of medical decisions in the event of future incapacity. The principal may give the agent general or specific instructions to direct future decision making or may make the grant of authority unrestricted. The DPOA is distinguishable from the regular or ordinary power of attorney, which ordinarily is used to delegate power to make arrangements and take actions regarding financial or property affairs.
DPOAs fall into 2 categories. An immediate DPOA comes into effect immediately on the naming of an agent. In a springing DPOA, the legal authority is transferred (“springs”) from the patient to the agent only when some specified future event (such as confirmation of the principal's incapacity by an examining physician) has occurred.
Medical Decision Making for the Critically Ill
Rapidly unfolding advances in medical technology create exciting new opportunities for the successful medical treatment of critically ill patients. However, it frequently is impossible to predict accurately whether a particular intervention will benefit a particular patient at a particular point in time. Complex dilemmas regarding if, when, and for how long various life-sustaining medical treatments (LSMT) ought to be introduced or continued in specific situations carry perplexing ethical and legal ramifications.
Under both common law and constitutional interpretation, Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990), a competent adult patient's right to make informed, voluntary medical choices encompasses the right to permit or refuse particular LSMT (including artificial nutrition and hydration). If the patient has been formally adjudicated incompetent, the court-appointed guardian acts as the decision maker regarding the initiation, continuation, withholding, or withdrawal of LSMT. When no guardian has been appointed, LSMT choices for a decisionally incapacitated patient devolve to the agent named in a DPOA instrument, if one was executed while the patient was still capable of doing so.
- ADVANCE DIRECTIVES & ORAL STATEMENTS
When neither a guardianship nor a DPOA exist for a patient who cannot speak autonomously for him- or herself, guidance may be available through an instruction advance directive. Statutes (variously called natural death, death with dignity, or right to die legislation) that authorize capable adults to execute written declarations or living wills have been enacted in 48 states. These statutes create a mechanism for capable adults to anticipate future scenarios and instruct their physicians prospectively regarding the use of LSMT. Legal immunity against any form of liability or professional discipline is provided to caregivers who comply with a valid living will, and a physician who chooses for reasons of personal conscience not to comply with the patient's instructions may not interfere with the patient's transfer to a different physician.
A patient's conversations with relatives, friends, and health care providers constitute the most common form of advance directive. Oral statements should be thoroughly documented in the medical record by physicians and other members of the health care team for later reference. Properly verified oral statements carry the same ethical and legal weight as formal written directives, although most physicians feel more confident psychologically in relying on the latter. Physicians and other health professionals should encourage persons who presently have capacity to document their preferences regarding future medical treatment in the form of a written instruction directive or DPOA.
- PATIENT SELF-DETERMINATION ACT
The Patient Self-Determination Act (PSDA) of 1990 (Public Law No. 101-508, §§ 4206 and 4751) imposes specific requirements on all hospitals, nursing homes, health maintenance organizations, preferred provider organizations, hospices, and home health agencies that participate in the Medicare and Medicaid programs. Among these mandates are the following:
- The provider develop and disseminate to new patients or their surrogates a written policy on advance directives, consistent with applicable state law.
- The provider inquire at the time of admission or enrollment whether the patient has executed an advance directive.
- If no advance directive has been executed previously and the patient currently retains decisional capacity, the provider give the patient an opportunity to execute an advance directive at that time.
However, the PSDA forbids any provider from requiring a patient to execute an advance directive as a condition of receiving care from that provider. Although the PSDA does not apply expressly to physicians' offices, it in no way precludes discussions from taking place in the primary care setting about patient preferences regarding future medical treatment.
- INFORMAL FAMILY DECISION MAKING
In the absence of judicial appointment of a guardian or the patient's formal designation of an agent, the long-standing medical custom has been for physicians to turn to family members as surrogate decision makers
for incapacitated patients. This practice has been codified in > 30 states by enactment of family consent statutes that expressly authorize specific relatives, in an enumerated priority order, to make particular decisions for their incapacitated family members. This well-established custom and statutory codification are based on the assumption that family members generally know best the basic values and preferences of their relatives (thereby accomplishing substituted judgment) or, at the least, will act as trustworthy advocates for their relatives' best interests. However, health professionals must be alert to possible serious conflicts of interest that can render a relative inappropriate to act as a surrogate decision maker for the patient.
- “DO NOT” ORDERS
In the critical care context, a physician may issue several kinds of “do not” orders. “Do not” orders are predicated on prospectively made decisions to forgo certain types of LSMT for certain patients under specified circumstances. Most attention has been devoted to “do not resuscitate” (DNR) orders (“no codes”) or instructions by the physician to refrain from attempts at cardiopulmonary resuscitation in the event of a cardiac arrest. However, other kinds of prospective orders also may be important, especially within the long-term care environment, such as “do not hospitalize” and “do not treat” orders.
“Do not” orders should be handled according to the same substantive ethical and legal principles and procedural guidelines that apply to other treatment decisions. A capable adult patient has the same right to agree to a “do not” order as to make any other decision about the use of LSMT. For the incapacitated patient, prospective clarification of the medical situation may be available from the patient's previously executed living will or the current instructions of a surrogate. Even without an advance directive, “do not” orders still are permissible for incapacitated patients according to the same general precepts governing other kinds of decisions about LSMT. By allowing and encouraging certain decisions to be made prospectively before a crisis develops, “do not” orders may reduce potential legal risk and should curtail physicians' legal anxieties.
- PHYSICIAN-ASSISTED DEATH
Forgoing unwanted or disproportionately burdensome LSMT, even when the patient's death is the natural and expected result, is permissible in the United States as an exercise of passive euthanasia in appropriate circumstances. However, affirmative interventions, such as lethal injections, performed for the purpose of hastening a patient's death constitute active euthanasia, which is considered a criminal act of homicide and is opposed by most people on ethical grounds as well.
In contrast to passive or active euthanasia, assisted suicide involves the physician supplying, at the patient's request, the means to actively accelerate the patient's death (eg, a potentially fatal amount of a drug), with the expectation and intention that the patient will use the means so supplied for that purpose. In 1997, the U.S. Supreme Court held that there is no constitutional right entitling people to secure a physician's help to actively hasten their own deaths and that states may continue to criminalize such help by a physician, Washington v. Glucksberg, 117 S.Ct. 2302 and Vacco v. Quill, 117 S.Ct. 2293. The Court left open the possibility that individual states could decriminalize physician-assisted suicide if they choose to do so. Thus far, only Oregon has exercised its prerogative to do so (by voter referendum).
- INSTITUTIONAL ETHICS COMMITTEES
Standards of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) require that hospitals have a mechanism in place for resolving ethical disputes about patient care. Many, although certainly not all, of those ethical disputes involve disagreements about the use or abatement of LSMT for a particular patient. One mechanism for addressing such disputes is the institutional ethics committee (IEC), variants of which have now been established in many hospitals as well as nursing homes, hospices, and home health agencies. The IEC is an internal, interdisciplinary structure set up to help a facility or agency and its professional staff deal with difficult treatment decisions in an ethically acceptable way.
IECs vary from among institutions or agencies in terms of exact size, composition, structure, processes, activities, and place within the organizational bureaucracy. IECs may be involved in such functions as drafting organizational policies, education of staff and the public, and case consultation on a concurrent or retrospective basis. The involvement of an IEC in a particular case probably has positive legal benefits for the provider organization and its staff in terms of reducing unnecessary guardianship petitions, deterring possible lawsuits against the institution or agency and its staff, and evidencing good faith to bolster the providers' defense against any rare malpractice case that might be brought in this context.
Informed Consent in the Research Context
Whether older individuals, particularly those with cognitive impairment, should be enrolled as participants in biomedical, behavioral, and health services research protocols raises a host of ethical and legal concerns. The issues are particularly pointed when the proposed human participants (until recently usually referred to as
subjects) are institutionalized as well as significantly mentally compromised.
Most (but not all) research conducted in the United States is regulated by federal law intended to safeguard the rights and welfare of potential human participants, 45 Code of Federal Regulations Part 46. The Office of Human Research Protection (OHRP) within the Department of Health and Human Services (DHHS) has the authority to suspend an institution's research activities involving human participants for deviation from applicable regulations and has exercised that authority at a number of renowned medical centers in recent years.
No particular legal restrictions apply exclusively to older research participants; therefore, participation by older persons in research protocols occurs under the same legal framework that governs research volunteers of all ages. For decisionally incapacitated individuals, permission for research participation may be obtained from those persons who are authorized to make other kinds of decisions on the older person's behalf. Federal regulations allude to the use of a legally authorized representative under applicable state law for making decisions about participation in research activities.
However, a 1998 report by the National Bioethics Advisory Commission (NBAC) included several recommendations for explicitly protecting potential human research participants (across the age span) who have impaired capacity to personally consent to or refuse their own research participation. Among the other recommendations that NBAC called for were the following:
- Institutional review board (IRB) membership should include at least 2 persons familiar with mental disorders.
- A special standing panel of DHHS (a “super” IRB) should be created to deal with particularly ethically vexing research protocols.
- Research using mentally compromised subjects should be permitted only if the research could not be conducted using mentally healthy volunteers instead.
- For protocols exposing participants to greater than minimal risk, there should be an independent assessment of a potential participant's capacity, and the protocol must detail the process of assessing decisional capacity in each potential participant.
None of these recommendations has been enacted into law yet.
ADULT PROTECTIVE SERVICES
On the basis of their parens patriae power to protect those who cannot protect themselves, the states have created a wide variety of programs under the general heading of APS programs. The basic definition of this concept is a system of preventive and supportive services for older persons living in the community to enable them to remain as independent as possible while avoiding abuse and exploitation by others. Good APS programs are characterized by the coordinated delivery of services to adults at risk and the actual or potential authority to provide surrogate decision making regarding those services.
The services ordinarily consist of an assortment of health, housing, and social interventions. Ideally, these services are coordinated by a caseworker/organizer (variously termed a case manager, care manager, or care coordinator), who is responsible for assessing an individual's needs and bringing together the available resources.
The second component of an APS system is authority to intervene on behalf of the person needing help. Ordinarily, that person (if mentally able) will voluntarily grant the helping agency permission to deliver services. However, if that person declines offered assistance despite needing it, the APS agency may turn to the legal system to authorize appointment of a surrogate decision maker over the person's protests. Some states deal with unwilling service recipients through the traditional methods of involuntary commitment or guardianship. Legislation has been enacted in many jurisdictions, however, that creates special procedures to obtain court orders to impose various aspects of APS whether or not the individual wants those services. These legal procedures are either in addition to or in place of the existing guardianship system. Before a court may order APS interventions over a person's objections, that person is entitled to certain due process protections such as notice and a hearing at which there is a right to be represented by legal counsel, present evidence, and examine and cross-examine witnesses.
Physician's Role in Abuse & Neglect Identification, Reporting, & Intervention
In the context of APS, physicians frequently are called on to contribute their expertise and skills in identifying appropriate candidates for services, providing evidence if guardianship or commitment litigation occurs, exploring voluntary alternatives, and service planning and patient placement. Physicians often are in a unique position to identify initially those individuals who satisfy the eligibility criteria for, and could significantly benefit from, the involvement of an APS agency. Notifying a designated APS agency about the existence and identity of such patients is required of the physician in the almost 45 states with mandatory reporting statutes for suspected adult abuse and neglect. Even in the handful
of states without mandatory reporting laws, physicians making good faith voluntary reports to APS are immune from any legal liability associated with that reporting.
The definition of elder abuse and neglect is a matter of state law. Each state has enacted its own statutory schema in this sphere, resulting in substantial variation among particular definitions and procedures. The American Medical Association (AMA) has defined elder abuse and neglect as “actions or the omissions of actions that result in harm or threatened harm to the health or welfare of the elderly.” These actions or inactions may occur in the older person's home or that of a relative, at the hands of an informal caregiver, or within institutional walls. A single incident may constitute abuse or neglect in most states, but more commonly a repeated pattern is documented, and in some jurisdictions is essential, to satisfy statutory definitions of abuse and neglect. Elder mistreatment may take several forms: physical (eg, assault, forced sexual contact, excessive drug administration, inappropriate imposition of physical restraints); psychological or emotional (eg, threats); denial of basic human needs by the caregiver (eg, withholding needed medical care or food); deprivation of civil rights (eg, freedom of movement and communication); and financial exploitation.
A significant proportion (over half in some states) of reported cases of elder mistreatment fall into the category of self-neglect by older persons living alone, without any informal (ie, unpaid family or friends) or formal (ie, paid) caregivers. Examples of self-neglect include an individual's failure to maintain sufficient nutrition, hydration, or hygiene; failure to use necessary physical aids such as eyeglasses, hearing aids, or false teeth; or failure to maintain a safe environment for him- or herself. Self-neglect may be suspected in the presence of dehydration, malnourishment, decubitus ulcers, poor personal hygiene, or lack of compliance with basic medical recommendations.
Some states have enacted distinct statutes dealing with cases of institutional abuse and neglect of older residents. These statutes may apply to nursing facilities, board and care homes, and assisted-living arrangements. Even if a state does not have such precisely focused legislation, resident mistreatment by long-term care facility staff is prohibited by federal regulations (for nursing facilities) and by state institutional licensure statutes and common law tort standards of care. There are significant legal restrictions on the misuse of involuntary physical and chemical restraints. Also, several states lump together institutional and informal caregiver mistreatment in the same statutes rather than legislatively handling them distinctly.
Patients are entitled to receive reasonable continuity of care from their physicians. If an older person changes placement (eg, moves from a private home to an assisted-living complex or a nursing facility), whether voluntarily or involuntarily, the principle of nonabandonment legally obligates the physician to facilitate continuity of medical care by continuing to treat the patient personally or referring him or her to another competent, willing physician whose services are acceptable to the patient.
As a general ethical and legal precept, health care and human services professionals have a duty to hold in confidence all personal patient information entrusted to them. The patient has a right to expect the fulfillment of that duty. The obligation of confidentiality is reinforced by the AMA's Principles of Medical Ethics as well as the ethical codes of all other health professional organizations.
Most state professional practice (ie, licensing) acts impose an explicit duty of confidentiality. Voluntary, private accrediting bodies, such as JCAHO and the National Committee for Quality Assurance, impose strict standards on accredited service providers regarding the protection of patient privacy. Additionally, courts have allowed patients to impose civil liability on health and human service professionals for violating their duty of confidentiality. Some courts have held that the professional's obligation to maintain confidences is legally enforceable against employees of that professional under the legal principle of respondeat superior (literally, “let the master answer”).
The Health Insurance Portability and Accountability Act, Public Law No. 104-191 (HIPAA), required DHHS to promulgate rules governing the protection of individually identifiable health information in any form or media including electronic, paper, and oral. In response to this requirement, DHHS issued regulatory Standards for Privacy of Individually Identifiable Health Information (Privacy Rule), which became effective April 2001 with final modifications published August 2002. The Privacy Rule applies to all healthcare settings, providers, and health plans as well as other “covered entities” as defined by DHHS.
U.S. Department of Health and Human Services, Office for Civil Rights: http://www.hhs.gov/ocr/hipaa
Exceptions to the Duty
The physician's obligation to maintain confidentiality of the patient's disclosures and records is not absolute. There are a variety of circumstances in which the physician is permitted, or even required, to reveal what
would otherwise be confidential information about a patient.
First, because it is the patient who owns the right of confidentiality, he or she may waive, or give up, that right as long as this is done in a voluntary, competent, and informed manner. This happens routinely, for example, when the patient authorizes release of personal information to third-party payers or auditors of treatment. Second, the expectation of confidentiality must yield when the physician is mandated or permitted by state law to report to specified public health authorities the existence of certain enumerated conditions known or reasonably suspected in their patients. Such provisions are based on the state's inherent police power to protect and promote the health, safety, and welfare of society as a whole. This rationale would support, for instance, reporting requirements concerning infectious diseases, gunshot wounds, or vital statistics (such as death). Alternatively to the police power, reporting of certain conditions may be mandated or allowed under the state's parens patriae power to beneficently protect those individuals who are unable or unwilling to care for their own needs. Mandatory and permissive reporting of elder abuse and neglect was mentioned previously in the context of protective services. Even absent a specific statute or regulation on point, the courts may impose a common law requirement or recognize a common law right for a physician to violate a patient's confidentiality to protect innocent third parties from harm. In most jurisdictions, for instance, a physician is expected to report to the potential victim or to law enforcement officials any express threat made by a dangerously mentally ill patient.
Further, when information is requested about a patient in the context of litigation, ordinarily the physician is precluded from providing that information because specific state statutes create a testimonial privilege between a patient and physicians with whom that patient has formed a professional relationship. However, the physician may be allowed or even compelled to reveal otherwise privileged information when the patient consents to or requests such release. Revelation also may be required by the force of legal process (ie, by a judge's order requiring such information to be released). This may occur when the patient has placed issues pertaining to his or her medical care in issue in the litigation (eg, when the patient is seeking monetary damages for personal injuries), when the communication to the physician was made in the presence of a third party (and, therefore, done without a reasonable expectation of privacy), or the public welfare need for the information outweighs the individual's right to confidentiality in the particular case.
In understanding the ramifications of legal process, it is crucial to distinguish between a subpoena and a court order. A subpoena is a directive from the clerk (administrator) of a court, issued at the request of an attorney in the case, instructing an individual to appear at a specific time and place for the purpose of giving sworn testimony. A subpoena duces tecum directs one to bring certain identified tangible items, such as medical records, at the time of testimony. A subpoena may not be ignored, but it may be challenged legally. The court may quash the subpoena if it runs afoul of an applicable testimonial privilege statute. The physician is obligated to comply only if the judge rejects the challenge to a subpoena and orders disclosure over the patient's objection or the patient has been notified about the subpoena and declines to challenge it. Noncompliance with a judge's order constitutes contempt of court and is criminally and civilly punishable.
Impaired Drivers & the Physician
A number of states, either by statute or regulation or as a matter of common law, have addressed the reporting obligations of a physician when a patient's driving abilities have become impaired by age-related neurodegenerative illnesses or sensory impairment. Some states (eg, California) expressly mandate physicians to report to drivers' licensing authorities a medical condition that might be hazardous to driving. Violation of a mandatory reporting requirement may lead to professional discipline. In some cases, it also may give rise to physician liability for injuries to third parties caused by the dangerous driver. However, a physician's failure to obey a mandatory reporting statute will not always make that physician civilly responsible for injuries suffered by a third party when the reporting statute is silent on this point. Even when there is no mandatory reporting statute in their jurisdiction, some physicians have been held civilly liable under a common law negligence theory when they should have foreseen a patient's dangerous driving but did nothing effective to prevent it and the driver then harmed an innocent third party in a motor vehicle accident. Other cases, however, have declined to impose civil liability in such circumstances, finding that the responsibility for safe driving rests exclusively on the driver's shoulders.
The AMA's Code of Medical Ethics §2,24, Impaired Drivers and Their Physicians, provides the following:
- Physicians should assess patients' physical or mental impairments that might adversely affect driving abilities. Each case must be evaluated individually because not all impairments may give rise to an obligation on the part of the physician. Nor may all physicians be in a position to evaluate the extent or the effect of an impairment (eg, physicians
who treat patients on a short-term basis). In making evaluations, physicians should consider the following factors:
- The physician must be able to identify and document physical or mental impairments that clearly relate to the ability to drive.
- The driver must pose a clear risk to public safety.
- Before reporting (to the state Department of Motor Vehicles), there are a number of initial steps physicians should take. A tactful but candid discussion with the patient and family about the risks of driving is of primary importance. Depending on the patient's medical condition, the physician may suggest that the patient seek further treatment, such as substance abuse treatment or occupational therapy. Physicians also may encourage the patient and family to decide on a restricted driving schedule. Efforts made by physicians to inform patients and their families, advise them of their options, and negotiate a workable plan may render reporting unnecessary.
- Physicians should use their best judgment when determining when to report impairments that could limit a patient's ability to drive safely. When clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and when the physician's advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the state Department of Motor Vehicles.
- The physician's role is to report medical conditions that would impair safe driving as dictated by state mandatory reporting laws and standards of medical practice. The determination of the inability to drive safely should be made by the state Department of Motor Vehicles.
- Physicians should disclose and explain to their patients this responsibility to report.
- Physicians should protect patient confidentiality by ensuring that only the minimal amount of information is reported and that reasonable security measures are used in handling that information.
- Physicians should work with their state medical societies to create statutes that uphold the best interests of patients and community and that safeguard physicians from liability when reporting in good faith.
Frolik LA (editor): Aging and the Law: An Interdisciplinary Reader. Temple University Press, 1999.
Kapp MB: Key Words in Ethics, Law, and Aging A Guide to Contemporary Usage. Springer, 1995.
Kapp MB: Lessons in Law and Aging: A Tool for Educators and Students. Springer, 2001.
National Bioethics Advisory Commission: Research Involving Persons With Mental Disorders That May Affect Decisionmaking Capacity. U.S. General Printing Office, 1998.
Weisstub DN et al (editors): Aging: Decisions at the End of Life. Kluwer Academic, 2001.
Editors: Landefeld, C. Seth; Palmer, Robert M.; Johnson, Mary Anne G.; Johnston, C. Bree; Lyons, William L.
Title: Current Geriatric Diagnosis & Treatment, 1st Edition
Copyright ©2004 McGraw-Hill
> Back of Book > Appendices
Form A. Body mass index (BMI) table.
Form B. San Francisco VAMC simple geriatric screen.
Form C. Physical activities of daily living (ADL).
Form D. Instrumental activities of daily living (IADL).
Form E. Home safety assessment checklist.
Form F. The confusion assessment method diagnostic algorithm.
Form G. Annotated mini-mental state examination.
Form H. Median MiniMental State Examination score by age & educational level.
Form I. Depression screens.
Form I. Depression screens. (continued)
Form J. Functional independence measure.
Form K. Mini nutritional assessment.
Form L. Hearing handicap inventory for elderly-screening.
Form M. Performance-oriented assessment of balance.a
Form N. Performance-oriented assessment of gait.a
Form O. Symptom score sheet to assess benign prostatic hyperplasia symptoms.
Form P. Braden Scale for Predicting Pressure Sore Risk.