Do Old People Have Rights?

I don’t mean in the theoretical, warm-fuzzy, it-says-so-in-the-policy-manual-so-it-must-be-true, everyone-has-rights sort of way. I mean in hard practice: do the elderly really have autonomy to determine their own treatment? Illustrated in two recent cases I had, the short answer is No.

Case 1. Female patient, 94, previously competent, but in nursing home for other medical problems, arrives via EMS as an apparent CVA. A CT confirms a massive cerebral bleed and the patient later dies on an emergency stretcher in the Resus Room. Her advance directives, signed by the patient herself, clearly state “No transfer to hospital” and “Palliative measures only”.  The nursing home, when questioned why this patient was transferred to hospital against her wishes — which in fact is the whole point of having an advance directive — can only say she was “unwell” and the nursing home physician “ordered her to be sent to hospital.”*

Case 2. 84 year-old female, who again has well-documented advance directives forbidding transfer to hospital previously written by the patient herself, but now has Alzheimer’s dementia, presents as a possible urosepsis. The nursing home says the patient was sent to the Emergency at the “request of the family.”

These aren’t hypothetical cases, and ones similar happen with dismal regularity. Physicial frailty means, in the minds of some, means mental incompetence. Advance directives are frequently subject to the capriciousness of nursing home staff or family members. In point of fact, the ability of anyone practically to direct their own care if incapacitated is limited. Even strictly delineated advance directives can and will be overridden by families and by health care professionals.

The nursing role in all of this is threefold: to educate patients and families on advance directives, to facilitate provision of services, including providers like home care, pain management and palliative care, and finally, to advocate for the patient. Whether we actually do it, of course is another question. Working in the Emerg, you frequently get the impression that expediency or convenience (or even laziness) trumps good patient care.


*The game, according to a colleague used to manage a nursing home, goes like this: The nurse in charge simply calls the nursing home physician, advises of  patient’s condition, but “forgets” to tell the doc of the advance directive. The physician of course then orders the transfer.


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  1. #1 by Chrystal Ocean on Monday 01 February 2010 - 1248

    No, the frail elderly are treated like young children, at best. Too often, they get much worse treatment. I’ve heard from someone who should know of the habit of dosing vulnerable elderly with morphine, to keep them quiet and less bothersome to staff.

  2. #2 by Maha on Monday 01 February 2010 - 1322

    Or how about a 90+ year old woman whose family even requests no transfer to hospital under any circumstances who gets sent to the hospital anyways? Or better yet, a perfectly independent elderly lady who comes in herself to get checked out for a UTI but because she forgets a few telephone numbers, the entire team gets involved because of a baseless suspicion of dementia and failure to cope?

    Some days its hard to not to distrust your colleagues’ judgment because as long as the buck is passed away from you, its no longer your business. Working in the hospital has made me hope that I can be lucky enough to keep my cognitive abilities in my old age to actually be able to direct my own care instead of having pissed off nurses and docs slaving over another ‘gomer’.

  3. #3 by b-bot on Monday 01 February 2010 - 2122

    We’ll respect your special requests . . . as long as they are more or less what we were going to do anyway.


    • #4 by mog on Tuesday 02 February 2010 - 1051

      How about those who are deaf or hard of hearing? I’ve seen the chart of one old woman who was described as demented when she was very hard of hearing. No one had bothered to try and communicate with her. She also had failing sight so couldn’t see well to lip read – even if anyone took the time to speak clearly to her. I wrote down notes for her to read – in vary large letters. She spoke to me and told me she had stopped talking as no one bothered to talk to her, she had just lost the will to try. It makes my heart weep to think of the loneliness of that woman and how she was dismissed as demented.

      One day that woman could be my mother, or me.

  4. #5 by JennJilks on Tuesday 02 February 2010 - 1645

    My understanding is that there is a battle between emergency rooms and retirement homes/long-term care. We go back to the Cover Your Ass battles.

    My I post your work on my site, with due credit? I have a couple of PSW teaching staff reading some of my posts for case study fodder.

    This is appalling.

    I would like to say that I fought long and hard to GET my dad on morphine. But I was living nearby, visiting every day, and (like 25 of daughters) was giving close supervision and monitoring his care.

  5. #6 by JennJilks on Wednesday 03 February 2010 - 0925

    Your posts ARE eye-opening. I have a number of folks from LTC who read them. I have also posted the link to the snowmobile item on My Muskoka in the sidebar. I’ve had a number of comments about it on my post regarding the needless snowmobile stats in Canada.

    Keep up your work. We need more like you to educate your peers. Pat-on-the-back from a grateful civilian involved in senior health care.

    • #7 by torontoemerg on Friday 05 February 2010 - 1007

      Thanks Jill. I appreciate your support.

  6. #8 by Doctor D on Thursday 04 February 2010 - 1549

    There is no excuse for case 1, but case 2 is a bit more nuanced.

    Ethically speaking we assume that our current wishes trump our previous wishes. We will not irrevocably bind people to what they said they wanted in the past. They are allowed to change their minds based on their understanding of their current circumstances. Thus someone has the freedom to rescind a living will if they wish.

    When someone is unable to speak for themselves like an Alzheimer’s patient, we allow someone to speak for them. We assume that the next of kin knew them very well and so are best able to tell us what the person would say if they could speak for themselves. We give the same power to parents of children. The power-of-attorney’s word should be treated as equal to the patient’s own. Ethically they are the voice of the voiceless patient.

    So can a next of kin ethically rescind the living will of a demented person. Of course they can. We must assume that they knew the person best and have insight into what the person would have wanted in this situation. Strictly by ethical logic following the will of the power-of-attorney IS respecting the rights of the older patient.

    Now that being said, it is more tricky in real life. Next of kin often act on their feelings (fear of losing a loved one) rather than acting as they are supposed to (giving their best guess of what their loved one would say if he/she could speak for his/herself). It is important to remind relatives that their authority is limited: They are to speak only for the wishes of their demented loved one, not for themselves. “Are you sure your mother would have wanted to go against her previous wishes in this situation?”

    Often when they understand their role family does stay with the demented patients previous wishes, but if they understand their ethical role and they still demand transport or treatment it is correct to treat their wishes as equal to the patient’s own words.

    Sorry for the long medical ethics note. I just figured it is worth clarifying our duty in that situation.

  7. #9 by torontoemerg on Friday 05 February 2010 - 1006

    Doctor D: Thanks for the lengthy comment and clarification. I would agree, mostly, though I think ethically I am not as clear that next of kin can assume a patient’s autonomy as readily as you suggest, especially in the presence of clear documentation, though practically (and legally) they can. You are correct that we need to remind patient’s family about their limited authority, but in the end, you can only rely on moral suasion.

    I think by your reasoning (and please correct me if I am wrong) you imply that when a person loses decision-making capacity, that effectively (and ethically-speaking) renders void any advance directive they might have. If his is true, can you tell me if their is any substantive difference between Case 1 and Case 2, other than elapsed time?

    I find this topic fascinating, btw, because it is fraught with ambiguity.

  8. #10 by Doctor D on Friday 05 February 2010 - 1857

    Thanks Torontoemerg,

    No I would not say that “when a person loses decision-making capacity, that effectively (and ethically-speaking) renders void any advance directive.” I would say quite the opposite–the advance directive is specifically for when a person loses decision making capacity.

    The crux of the issue is that a person always has the right to overturn their own advance directive. The next of kin has the right to speak for the patient. Typically I expect the next of kin to agree with the advanced directive. When I mention the advanced directive, I don’t invite children to change those orders. Sometimes kids say, “I don’t think that’s right.” I clarify: “Are you certain your mother would want this changed?” If they say so, then and only then is the advanced directive overturned.

    If a person felt strongly that they didn’t want their next of kin acting as POA after they are unable to speak they would have the right to choose another POA or deny anyone other than themselves could overturn their directive in the directive itself.

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