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Bruce J Toppin Vice President and General Counsel North Mississippi Health Services Ethics and Aging.

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Presentation on theme: "Bruce J Toppin Vice President and General Counsel North Mississippi Health Services Ethics and Aging."— Presentation transcript:

1 Bruce J Toppin Vice President and General Counsel North Mississippi Health Services Ethics and Aging

2 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.

3 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

4 Legal Issues for Aging Advance Directives for Health Care Power of Attorney Abuse Privacy Religion and Healthcare

5 MS 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

6 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 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 incapacitated- majority 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.

7 When may a surrogate make decisions for a patient? Section 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

8 Ethical Question Decision making capacity of the patient: Evidencing a choice- capacity if based upon not the quality of the 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

9 Patient Elderly Patient refuses dialysis No other medical conditions Multiple medical conditions Prior kidney transplant

10 Power of Attorney MS Code , 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

11 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?

12 MS. Vulnerable Persons Act MS "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

13 "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.

14 "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 and or as otherwise provided by the general laws of the state

15 "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 and 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

16 Reporting abuse, neglect, or exploitation; establishment of central register; confidentiality. (1) (a) Except as otherwise provided by Section 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)

17 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

18 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

19 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.

20 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.

21 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.

22 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

23 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.

24 Joint Commission and Religion 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?

25 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.

26 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


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