Ethical Issues and The Elderly:

Guidance for Eldercare Providers

 Mark R. Ensign, jd, cpa

Attorney and Counselor at Law

Ethical issues pervade our modern society.  Daily - often many times a day - persons who have a moral compass are confronted with an ethical choice.  Sometimes these choices are so difficult that they are called ethical dilemmas.  In the world of the elderly, ethical issues have an even greater significance because they usually involve an elder who is likely to be more vulnerable that the average adult.  For that reason, in many ways the elderly are taken advantage of by people in whom they have misplaced their trust. 

This paper is intended to propose an ethical framework in which to discuss ethical issues that are likely to arise and the means to deal with ethical dilemmas involving the elderly and those who provide eldercare, whether professionals or family members.  To provide the highest level of care, the entire caregiving team needs to form a partnership having the best interest of the elder as their focal point while providing loving, appropriate care to enhance their quality of care, their quality of life and their happiness in the latter days of their lives.

Ethics and morality are not equivalents.  Although ethics is frequently the study of morals and, as such, is the study of what ought to happen, for the elderly and their healthcare providers, ethics can mean two different things.[1] 

For the elderly, ethics is about how they want to be treated and allowed to make their own decisions.  For family members as caregivers, ethics is about doing what is right even when no one is looking.  For professionals providing eldercare, ethics is about adherence to established canons of ethics promulgated by organizations such as the American Medical Association for physicians, the American Nurses Association[2] and National Association of Social Workers.[3]

Codes of Ethics

A code of ethics states a profession’s goals, values, and level of commitment to the public and the community which it serves.  The development and promulgation of a code of ethics sets a minimum standard of practice to which members are held accountable.  The code not only directs practice, but also offers a means of self-regulation by fellow professionals and the development of trust within the community they serve.  Due to the importance of a code of ethics within a profession, many organizations have developed their own code. 

The Code of Ethics the American Nurses Association has adopted is intended to guide the professional toward ethical treatment of their patients.  Specifically it states, “The ethical tradition of nursing is self-reflective, enduring, and distinctive.  A code of ethics makes explicit the primary goals, values, and obligations of the profession.”[4] 

The Code of Ethics adopted by the National Association of Social Workers states, “[It] sets forth these values, principles, and standards to guide social workers’ conduct.  The Code is relevant to all social workers and social work students, regardless of their professional functions, the settings in which they work, or the populations they serve.”[5]  The purposes of the NASW Code of Ethics are defined as:[6]

1. The Code identifies core values on which social work’s mission is based.

2.  The Code summarizes broad ethical principles that reflect the profession’s core values and establishes a set of specific ethical standards that should be used to guide social work practice.

3. The Code is designed to help social workers identify relevant considerations when professional obligations conflict or ethical uncertainties arise.

4. The Code provides ethical standards to which the general public can hold the social work profession accountable.

5. The Code socializes practitioners new to the field to social work’s mission, values, ethical principles, and ethical standards.

6. The Code articulates standards that the social work profession itself can use to assess whether social workers have engaged in unethical conduct.  NASW has formal procedures to adjudicate ethics complaints filed against its members.  In subscribing to this Code, social workers are required to cooperate in its implementation, participate in NASW adjudication proceedings, and abide by any NASW disciplinary rulings or sanctions based on it.

 Additionally, some states have codes of ethics, disciplinary rules or professional standards promulgated by the licensing board that all such licensed professionals are required to follow.  In Texas the Board of Nurse Examiners Standards of Nursing Practice are found in Title 22 Texas Administrative Code, Part 11, Section 217.11.  The Texas State Board of Social Worker Examiners (TSBSWE) has promulgated a Code of Conduct and Standards of Practice in Title 22 Texas Administrative Code, Part 34, Section 781.401 et seq.[7]

Attorney Rules of Professional Conduct

Nationally, attorneys have a code of ethics they must adhere to known as the Model Rules of Professional Conduct.  These Model Rules have been modified and adopted in Texas as the Disciplinary Rules of Professional Conduct.[8]  

Elder Law attorneys share many of the same concerns and roles in relationship to their elderly clients as do the medical, nursing and social work professional as elder caregivers.  Their Rules of Professional Conduct can provide insights and guidance to the ethical decisions and behaviors to be expected from all elder caregivers, regardless of profession.

Rule 2.1 is particularly important in the context of this topic as it distinguishes the attorney’s role as an advisor from his role as an advocate.  And it is often the advisor’s “hat” that elder law attorneys wear when engaging with their client in planning for their future and for their eldercare.  As advisors, attorneys may consider not only technical legal rules but also moral and ethical considerations relevant to the client’s situation.  The attorney may also indicate that more may be involved in his counsel than strictly legal considerations when consulting with and advising a client.  Although the client, not the lawyer, ultimately decides what to do with the advice given, it is appropriate for the attorney to refer to relevant moral and ethical considerations when formulating and dispensing such counsel. 

More often than not, Elder Law attorneys act as an advisor rather than as an advocate – as is typical with most caregiving professionals.  “Elder Law attorneys frequently find themselves trying to help clients get as close to their legal goals as possible, in the face of family, medical, religious, or social concerns about the propriety or advisability of the client’s chosen course of action.”[9]

“As an advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.  As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.  As a negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.  As an intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client.  A lawyer acts as an evaluator by examining a client’s legal affairs and reporting about them to the client or to others.”[10]

Likewise, eldercare providers often find themselves acting as advisors to the elderly they care for.  And at times, the caregiving professional may have to act as an advocate, negotiator, intermediary and evaluator.  The elder’s family caregivers are most likely to act in the role of advocate.  Whether as advisors or advocates, all caregivers share the common goal of helping the elder, whether as patient or family member, to choose their course of action and carry it through in the face of numerous factors and concerns.

Common Ethical Issues Confronting Eldercare Providers:

1.  Actual Conflicts of Interest:  There are several scenarios under which conflicts of interest may arise when family members and professional caregivers assist or represent the elderly.  They include:

 2.  Potential, Future or Perceived Conflicts of Interest:  Potential conflicts are those which are not actual conflicts when the caregiving or assistance to the elder begins.  These potential conflicts may later become actual conflicts when the elder’s interests diverge from the caregiver’s interests. 

For example, consider this situation.  A power of attorney is prepared by the elder’s attorney and signed by the elder to give his son the power to manage all of his business affairs when the elder could not.  At this point there is a potential conflict of interest.  Later, after the elder is actually incapacitated, the son as agent seeks legal counsel concerning a gifting strategy that could (or would) impoverish the elder by transferring the assets to the son and his siblings.  The potential conflict has now become at least a perceived conflict of interest.  And if the son acts within his power to impoverish his father, there is an actual conflict of interest. 

The NASW Code of Ethics, Standard 1.06 deals with conflicts of interest and provides good counsel for dealing with them.  Paragraph (a) provides, “Social workers should be alert to and avoid conflicts of interest that interfere with the exercise of professional discretion and impartial judgment.  Social workers should inform clients when a real or potential conflict of interest arises and take reasonable steps to resolve the issue in a manner that makes the clients’ interests primary and protects clients’ interests to the greatest extent possible. …”[11]  Other paragraphs provide further guidance that would be helpful and appropriate for all who provide care to elders and face actual or potential conflicts of interest.  They are similar to the conflict of interest provisions for attorneys in the Disciplinary Rules of Professional Conduct. 

3.  Confidentiality:  In the course of eldercare, family members and caregivers frequently gather a substantial amount of confidential information about the client.  They owe a duty of confidentiality to the elder.  Not only must they not breech the confidence placed in them by releasing that private information to others, they must not use that information for their own benefit in such as way as to be adverse to the elder, the source of the private information. 

The NASW Code of Ethics, Standard 1.07 Privacy and Confidentiality has extensive and well-crafted instructions about respecting the privacy of clients, seeking only confidential information that is essential to providing services, maintaining the confidentiality of all such information and disclosing it only with appropriate consent of the client or authorization of legal agents.  All eldercare providers would do well to review this important standard. 

4.  Decision-Making Capacity:  The elder may have capacity (be competent) or may not be competent to properly participate in the process of making decisions, both business and medical.  Such decisions will likely have lasting effects on the elder’s future, even to her end of life.  So eldercare providers have a duty to focus on the elder’s needs, both present and future, as well as her assets.  At all times, her interests must be considered.  After all, if the eldercare involves the choice of using the elder’s assets or protecting those assets using a strategy, whose assets are being expended or protected?  So the best interest of the elder must be weighed heavily in all decision-making, especially when the elder is unable to think clearly about the decisions and the consequences thereof or to express herself clearly about them. 

The Rules of Professional Conduct provides the framework within which Elder Law attorneys must confront such ethical issues.  Elder Law attorneys are not required to take action adverse to the interests of the elderly or infirm client.  This should also be the case with all partners in the eldercare provider team.  Where appropriate, all professional eldercare providers and family caregivers should maintain an “elder-centered” approach to those they assist each day. 

Principlism: The Ethical Framework

The dominant theory or model for medical or bioethics is called “Principlism.”  Although arose in the context of medicine, Principlism seems to be an appropriate framework for guidance in confronting ethical issues and making ethical decisions in situations elder caregivers of all kinds encounter.  That is why we consider it in this study.

“Medicine, even at its most technical and scientific levels, is an encounter between human beings, and the physician’s work of diagnosing disease, offering advice, and providing treatment is embedded in a moral context.”[12]  This statement well describes the encounters other professionals involved in eldercare have each day and the proper context for their efforts to provide appropriate care. 

Expanding Principlism beyond its medical context, this framework suggests that caregiving ethics begins, initially, with a determination of the condition, an understanding of the situation or a recognition of the problem or conflict, coupled with respect for patient autonomy, followed by the application of the essential principles of beneficence, nonmaleficence, and justice (loyalty and fairness) along with respect for the sanctity of the life of the one being cared for.  Thus Principlism may be understood as a framework within which particular cases (issues or conflicts or moral problems) are analyzed and addressed to an appropriate conclusion.  Principlism is not merely a set of “rules” per se “because prima facie principles do not contain sufficient content to address the nuances of many moral circumstances.”[13] 

This framework approach is embraced in the NASW Code of Ethics which states, “The Code offers a set of values, principles, and standards to guide decision making and conduct when ethical issues arise.  It does not provide a set of rules that prescribe how social workers should act in all situations. … Further, the NASW Code of Ethics does not specify which values, principles, and standards are most important and ought to outweigh others in instances when they conflict…. Ethical decision making is a process…. Social workers’ decisions and actions should be consistent with the spirit as well as the letter of this Code.”[14]

When understood and applied by all members of the team of caregivers, this Principlism framework can be helpful in ethical decision-making to benefit the elder and enhance their quality of life.  This is particularly true where the elder’s capacity to make decisions or to consent to treatment is questionable.  Each of the four essential principles in the Principlism framework is discussed below.

Autonomy:  Respect for the Elder’s Choices 

Respect for individuality is a core value in our society and is no less so when dealing with the elderly.  In fact, it may be even more needed because the elderly are usually not as able as the younger population to stand up for their rights and their decisions. 

Implicit within any discussion of autonomy is the concept of equality, at least as it relates to human dignity.  Autonomy is the natural by-product of that value and is therefore an ideal foundation on which to build the Principlism ethical framework. 

Eldercare providers owe the elder the duty to respect his autonomy.  Some, particularly the elder’s attorney, may be called on to maximize the elder’s autonomy.[15]  In the process, they may have to stand in the gap by being an advocate to preserve the elder’s essential autonomy. 

Two conditions are essential for autonomy:

Autonomy encompasses the “capacity” of the elder to form a contract such as with an eldercare provider for healthcare services or an attorney for legal services.  Autonomy is also involved in the elder being able to give his “informed consent” to medical treatments[16] as well as to agree to courses of action proposed by social workers. 

“Exercising autonomy depends upon relevant information and implies a capacity to use that information.  We refer to the legal corollary of medicine’s concept of “informed consent.”  The principlism approach to dealing with ethical conflicts, whether in medicine or law, begins by educating the client concerning available options and the probable consequences of each option.  Unless autonomy is counterbalanced against another principle, the client exercises autonomy by choosing among his options.[17] 

“Personal autonomy is, at a minimum, self-rule that is free from both controlling interference by others and from limitations, such as inadequate understanding, that prevent meaningful choice.”[18]  For example, a 70 year-old female diagnosed with cancer (but who has all her mental faculties and has been fully informed of the benefits and consequences of various treatments) may refuse invasive treatment and elect to have alternative therapies of acupuncture and natural remedies.  In this, she is utilizing her rights of autonomy.  Likewise, an octogenarian with capacity to decide and with necessary information about his options may choose the location for his skilled nursing care despite the recommendation of a case worker or discharge planner. 

It is not the place of the elder’s caregivers, family members or attorney to make decisions for the elder when she has capacity (is competent) to do so.  Rather, they all must respect the elder’s right to make her own choices.  They must allow the elder to direct the course of her life, her treatment and her legal representation.  However, the elder’s autonomy reigns only after her caregivers have discharged their duty to fully communicate the information needed, including the risks and benefits, in a manner that allows her to both form and render her informed consent or decision.  Obtaining such informed consent or decisions is essential to all who are involved in eldercare, professionals and family members alike. 

The autonomy principle in the Principlism framework for eldercare is satisfied through this informed consent decision-making process.[19]  If the decision made is not in accordance with the professional’s preference or counsel, the elder’s autonomy trumps professional’s beneficence, discussed more fully below.   

Many elders and their caregivers have experienced this process in the context of preparation for surgery.  The surgeon and the anesthesiologist consult with the patient to inform her about the risks and the benefits, as well as the procedures they will be undergoing.[20]  With capacity to understand the information communicated, the elder makes a decision thus exercising her autonomy. 

Dr. Kenneth Prager, M.D. lectured his colleagues at a cardiovascular conference at Columbia Presbyterian Medical Center in 2002 on “The Age-Old Question: Ethical Issues in the Care of the Elderly.”[21]  In his presentation he addressed several of the principles within the framework of ethical Principlism.  Regarding autonomy he said, “We have to enable our patients to exercise autonomy in a meaningful way.  How can a patient make a decision and exercise autonomy about that decision if you, the physician, have not adequately informed them about the risks involved and the likelihood of problems before the [medical intervention]?”[22] 

Eldercare providers frequently encounter situations where the elder’s mental capacity to understand his options and make well-reasoned decisions is in question.  In such cases true autonomy cannot exist.  Then autonomy may be exercised through a surrogate, the moral or legal agent.  And the Federal Patient Self Determination Act prevents healthcare providers from serving as the elder’s moral agent.[23]  If the elder has insufficient capacity for medical decision making, under Texas law the physician may recognize an agent under a medical power of attorney or a surrogate appointed under the Advanced Directives Act of 1999.  Then that agent or surrogate will exercise their substituted judgment in the decision-making process for the benefit of the elder – the application of the principle of beneficence discussed below. 

If the elder lacks capacity, if the surrogate has interests that conflict with the elder’s interests, and if there is no clear guidance from the elder to resolve the issue with reasonable certainty, there is a major ethical dilemma for all concerned.  In these circumstances, the principle of autonomy should be weighed against the principles of nonmaleficence, beneficence, justice and sanctity of life discussed below.  Careful application of the conflict rules in the professional caregiver’s code of ethics with guidance provided by these principles will unravel the Gordian knot and achieve the right result, the best interest of the elder.  It is, after all, the elder’s health, life, well-being and finances that most often hang in the balance in such situations. 

Autonomy can be expressed, and to some extent be exercised, by the elder through the use of Advance Directives created and signed by the elder under the provisions of the Texas Advance Directives Act of 1999 including a medical power of attorney, advance directive to physicians and family or surrogates and a do-not-resuscitate order.  By doing so, the elder can express his intentions and have an assurance that decisions made in his autonomy while having capacity will be maintained and respected when he does not have capacity or when he cannot express his decisions. 

The end of life decisions expressed by the elder in his directive to physicians and family or surrogates may encounter problems if he wishes to be kept alive with artificial life support.  In the Houston and Harris County area there have been several cases in which the attending physician refused to honor the elders’ exercise of autonomy in clear written expressions of the intent of the patients.  In these cases, the ethics committee of the hospital supported the physician.  The family members who wished to sustain the autonomy of the patient only had 10 days in which to find an attorney, prepare the case, get on the docket of the court, make their appeal to the court for justice and wait for the court’s decision.  This is because after 10 days the hospitals were prepared to terminate the life-sustaining procedures.  Furthermore, the hospitals aggressively asserted their right to terminate the procedures and aggressively opposed the family’s attempt to uphold the autonomy of their loved one.  It is my understanding that in each case the hospitals won and the patient died because the hospitals made little or no reasonable effort to transfer the patients to a facility where they would be kept alive.

In response to these cases, legislation has been introduced in the 2007 Texas Legislative Session to remove the 10 day time restriction so the families of patients would be able to pursue their actions to sustain the autonomy of the patient.  As of this writing, it remains in the Health and Human Services Committee.[24] 

The elder can also express his autonomy before the need for resuscitation arises.  This could be before surgery[25] or while receiving care in the home in case he is found not breathing or without a pulse.  The execution of a Do-Not-Resuscitate order on the official form the State of Texas promulgates[26] can be a real blessing (1) to the elder who will not suffer the trauma of repeated attempts by emergency care providers to restart her heart or her breathing and (2) to the family members who will not have to witness such vain attempts.  Also, the family will not be burdened by the additional cost of care that would result if the resuscitation was successful but the elder continued in a persistive vegetative state. 

While medical decision-making provides many examples of the application of the autonomy principle, it is not the only place where caregivers need to respect the autonomy of the elder.  Indeed, “Social workers seek to enhance the capacity of people to address their own needs.”[27]  And the NASW Code of Ethics Standard 1.03 Informed Consent emphasizes the need for valid informed consent by an elder having capacity based upon appropriate disclosures of the purposes, risks, limits and costs of the services being offered and the right to refuse them.  

In the Principlism framework, autonomy of the elder is the first essential principle.  As a basic human right, the elder’s autonomy must be respected to the extent possible. 

Beneficence:  Do Good

Beneficence is defined as the doing of good; active goodness or kindness; charity. 

Eldercare providers of all kinds can do well by doing good.  Those who embrace and incorporate the principle of beneficence in their ethical decision-making can make a great difference in the quality of life that elders enjoy.  Quality of care of all types is the key to the future quality of life and the rate of decline in their functionality and happiness.  How do eldercare providers “do good”?  Let me count the ways.  Actually, they are numberless. 

Quite often eldercare begins with a healthcare crisis.  When the elder needs assistance, the family members are usually the first to step in – unless the emergency medical technicians are the first on the scene and the first eldercare providers.  In a life-threatening emergency, in which the patient may be unconscious, surgery may be performed before the patient’s consent can be obtained.  Thus the principle of beneficence is put into practice by saving the elder’s life.  This occurs after a determination has been made that without intervention and consent the patient would expire.  Here beneficence trumps autonomy because it cannot be expressed by the elder. 

If the situation is not an emergency requiring immediate hospitalization or similar intervention, the elder’s family member, acting as a surrogate, will quite likely seek the assistance of the appropriate healthcare team, be it the hospital, physician, nursing staff or other eldercare providers such a home healthcare or a skilled nursing facility. 

The family may also seek the advice of an Elder Law attorney, quite often after the elder has been moved to a skilled nursing facility.  At this point it is quite likely the elder cannot return home without substantial assistance.  The family does not know what to do.  They need the counsel of an Elder Law attorney and a Geriatric Care Manager.  These professionals can help them sort out all their options and assist them in making appropriate decisions.  They will be guided by the elder’s wishes, those she currently expresses to her life care planning team or her prior statements of how she wished to be cared for if such a situation ever arose. 

The problem inherent with beneficence – no matter what member of the eldercare team is trying hard to do good - is that beneficence may easily change into paternalism.[28]  In Principles of Biomedical Ethics, the authors define paternalism as “the intentional overriding of one person’s known preferences or actions by another person, where the person who overrides justifies the action by the goals of benefiting or avoiding harm to the person whose preferences or actions are overridden.” 

By their superior training, knowledge, and experience, professional caregivers such as physicians, nurses and social worker may cross the line from beneficence to paternalism.  They are better positioned to determine and advocate for the elder’s best interest than is the elder herself.  However, those superior qualifications are neither a mandate nor permission to overrule the elder’s wishes without respecting the elder’s autonomy.  By trying too hard to do good, a care provider may actually do emotional or psychological, if not physical, harm.

Consider this example of paternalism.  A 75 year-old male patient is told by his physician that he must have surgery immediately without giving the patient full information about the reason for this surgery, the risks and benefits, and any complications that might result.  Also, the patient has not been given any options or an opportunity for a second opinion or discussion with others.  While the physician may be correct, his beneficence that overrides the autonomy of the competent patient results in paternalism.[29]

Dr. Prager said that another factor interfering with patient autonomy is today’s managed care industry.  “The HMO situation [interferes] by cutting down on the amount of time that many physicians spend with their patients discussing these issues.  I think we are putting a barrier to exercise autonomy by virtue of interfering with informed consent.”[30]

And how could there be any better example of paternalism than the end-of-life cases described above where the attending physician and the hospitals aggressively opposed the autonomy of the patients and the desire of the elders to continue life-sustaining treatment? 

Nonmaleficence: Do No Harm

Eldercare providers who adhere to the ethical framework of Principlism incorporate the principle of nonmaleficence by doing no harm.  The principles of nonmaleficence and beneficence are particularly significant for the elderly and their future quality of life.

In the article cited, regarding beneficence and nonmaleficence, Dr. Kenneth Prager explained that calculating a cost-benefit analysis of medical treatment for older patients is much more difficult than calculating such an analysis for younger patients.  “Cost-benefit considerations in the elderly are generally more subtle and more complex, as harm is more likely and benefit is less certain,” he said.  “It’s much easier to consider radical major surgery on a vibrant 35-year-old person than someone who is an octogenarian.”[31]  He gave an example of a man who was given a knee replacement operation and was allowed to die at his wife’s request, not because the knee operation was unsuccessful, but because he developed a pulmonary complication that would have compromised his quality of life to an intolerable degree.  “So before elective surgery, discuss what are the goals of surgery, what is the literature on the likelihood of success?” instructed Prager.  “We have an ethical responsibility to know this ourselves and spend enough time with our patients…so they will make an informed decision.”

Such considerations also enter into deliberations about whether or not to hospitalize an elderly patient.  Dr. Prager explained, “They get confused in the hospital, there’s disruption of their daily routine, [and] they may fall.  So while on paper it looks like it’s the right thing to do to put them in hospital, you don’t approach this decision the same way you would with a younger patient.”  He added that these considerations make decisions about outpatient treatment for the elderly more complicated. “If you have a patient with malignancy, should this person have chemotherapy?  And even with prophylactic therapy, such as with Coumadin [Warfarin], for example, you worry about the patient falling or getting mixed up because of doses.”[32]

Some family members of elders want to save money by not spending on nursing home care for their elder by getting them qualified for Medicaid.  In their beneficence-driven desire to save money for the family while helping the elder to qualify for Medicaid coverage of nursing home care costs, some Elder Law attorneys (as well as the families they are trying to benefit) violate the principle of nonmaleficence.  Even if the elder qualifies for Medicaid, she is nonetheless harmed because the Medicaid spenddown and/or gifting plan deprives her of resources that she could use to purchase supplemental long-term care services that are not included in the basic services paid for by Medicaid.  Worse, if there was any way the elder’s needs could have been met by a less restrictive means than nursing home care, the Medicaid plan violates the principle of nonmaleficence.  It places the elder where she did not need to be while impoverishing her so she could not receive the care outside the nursing home, such as in an assisted living home or maybe even at home with appropriate caring assistance.[33]  

Respect for client autonomy does not abrogate or excuse any eldercare provider’s duty to prevent harm to the elder.  Caregivers, especially the Elder Law attorney, are ethically justified in advising the elder, or directing the elder’s surrogate or agent, to focus planning on bettering the quality of care and thus the quality of the elder’s life.  Asset protection concerns thus become secondary.  Caregivers, especially family members and attorneys, are not only advisors but should be advocates for the elder to the extent possible.  As the elder makes choices, the duty shifts to ensuring that someone is (or will be) available and properly empowered to speak for the elder and to address, mitigate or avoid misconduct or harm.[34] 

Justice

The fourth principle is justice which Dr. Prager described as a broader societal issue concerning the allocation of limited health care resources.  “It’s not something physicians deal with in day-to-day interactions with patients, but nevertheless very important.”  “How do you approach giving health care with limited budgets?” “There are two opposing sides, the strictly utilitarian ethical viewpoint and then there’s the idealistic.”[35]

The supporters of the utilitarian viewpoint say that limited health care resources should be allocated to do the most good for the largest number of people.  Supporters of an offshoot of this utilitarian viewpoint would allocate resources where they are most likely to be successful, where the good results will be the most prolonged and where they will help the most people.  Such is the approach of the Medicaid portion of the Oregon Health Plan.  Dr. Prager opined, “Now it’s clear that this may really impact negatively on older people in terms of health care delivery.  This is because the success of interventions is less in the elderly, the length of time the intervention will last is going to be less and, in most areas, the elderly don’t constitute the bulk of the population.”  

Dr. Prager pointed out that rationing can be detrimental to the aged because it affects women more than men.  Above age 65, for every 68 men there are 100 women.  And over age 85, there are 48 men for every 100 women.  “Any strictly utilitarian approach to allocating resources based on age is going to willy-nilly have an effect that will be disproportionally felt by women.” 

Prager next explained that the idealistic approach to justice says, “No, we’re not going to allocate our resources solely based on where there’s the most bang for the buck.  We should give help to people who need it the most.”  But with this approach, the elderly will disproportionally need more health care dollars than younger people, he added.  “I think that...we vacillate between the two poles.  We want to get a little bit of this, a little bit of that.  And perhaps there is a golden way, perhaps there is a way to not totally disenfranchise older people and not totally do something using all our health care resources without thinking of the usefulness in terms of prolonged effect for the greatest number of people.  I don’t have an answer to it.  I point out the justice aspect simply to ferment thought.”[36] 

So there are various viewpoints to the concept of justice as it relates to the providing of eldercare services such as medical care and the financing thereof through private payments of the elder’s resources, insurance payments, or by governmental social programs such as Medicare and Medicaid.  And rationing of geriatric services may become prevalent.[37]

Moreover, the principle of justice invokes yet another, related duty - to respect the elder’s human dignity.[38]  Respect for human dignity is the source of the essential autonomy principle.  Furthermore, the duty of respect of the elder’s human dignity leads to the next principle, the sanctity of life. 

Sanctity of Life

As important as the above principles are, surely the ultimate foundation and underpinning of all ethical frameworks or models must be respect for the sanctity of life.  If every elder’s life was not precious and the quality of life and the dignity of that human life were not relevant to all the issues of eldercare, caregivers would not have much reason for following the previous essential principles or act ethically in the process of providing care.    

The NASW Code of Ethics Ethical Principles include the following relevant provision: “Social workers respect the inherent dignity and worth of the person.  Social workers treat each person in a caring and respectful fashion, mindful of individual differences and cultural and ethnic diversity.  Social workers promote clients’ socially responsible self-determination.  Social workers seek to enhance clients’ capacity and opportunity to change and to address their own needs.”[39]

Conflicts certainly may arise between the essential principles and this foundational declaration that every human life, especially the children and the elderly who are most vulnerable, is precious.  The proper consideration and application of this ultimate foundational principle, in combination with the other essential principles, should lead to the proper result in each case.

For example, Dr. Prager pointed out that the issue of physician-assisted suicide is a collision between the principle of autonomy – the right of the elder to make his own decisions - and the principle of respect for the sanctity of human life - even for the life of one approaching the end by natural means.  “We recoil from [physician-assisted suicide] because we feel there’s something wrong with assisting to take a life.”  “There is that red line that you refrain from crossing, doing nothing to purposefully speed the death of a patient ... At least that’s certainly how I feel now.”[40]  And in this area, surely that is the prevailing view of caregivers. 

Derivative Rules of Ethical Care

Derived from these principles there are several rules of ethical care provisions such as:  Veracity, Confidentiality and Fidelity.[41] 

Veracity, the rule of truth telling, can sometimes be overridden by other important factors, such as a responsibility to avoid “unnecessary distress.”  It is also true that some elders do not always wish to be told the full truth.  There is no universal agreement as to what extent it is permissible to either lie or to withhold full information from a patient.[42]  For example, an 87 year-old female in the intensive-care unit asks the nurse, “Am I going to die?”  The nurse responds ^“You are very ill.  That is a possibility.  Is there something you would like me to do for you?”  The patient asks the nurse to phone her nephew because she needs to talk to him.

Confidentiality is a right central to the concept of an individual’s autonomy.[43]   Each person, perhaps even more so each elder, has the absolute right to expect that medical or any other private information will not be shared with others without her express permission or that of her surrogate or agent if she cannot grant permission.  This right to confidentiality is protected in many countries.  Frequently the law recognizes special circumstances under which confidential medical information can be released[44] such as when not sharing the information would or could be detrimental to the patient’s well-being.  For example, the patient tells the nurse, “Don’t tell the doctor that I don’t take my Coumadin at home.”  What is the nurse to do, especially if this information could jeopardize the life of the patient?

Although confidentiality is almost always considered to be good, there are situations in which the greatest number who would benefit may outweigh the value of keeping a confidence, known as the utilitarian approach. 

For example, in the AIDS epidemic, confidentiality has been broken to warn others of the danger of infection.  Some health care professionals argue that if this had been done in the early stage of the public health problem, instead of waiting for legislation freeing physicians from liability, AIDS may not have reached its present epidemic proportions. 

Fidelity or accountability is the willingness of the eldercare provider or family member to be loyal to the elder and assume responsibility for the nature and quality of the care the elder needs and receives within limits of the law.  “Social workers’ primary responsibility is to promote the well-being of clients.  In general, clients’ interests are primary.  However, social workers’ responsibility to the larger society or specific legal obligations may on limited occasions supersede the loyalty owed clients, and clients should be so advised.”[45]  Such would be case if a social worker had reason to believe a client had abused, neglected or exploited a child or an elder because the law requires reporting this to the appropriate authorities. 

Health care institutions, state boards regulating professionals, agencies regulating care providers and society as a whole can hold others accountable.  Accountability also requires peer reporting of any behavior by another eldercare provider deemed harmful or dangerous to the elder.  However, in true caregivers, fidelity should be self-regulating and motivate the caregiver to provide the elder with the appropriate, quality care they deserve.  “Social workers act honestly and responsibly and promote ethical practices on the part of the organizations with which they are affiliated.”[46]

Applying Principlism: An Elder-Focused Approach

Ethical decision-making in the framework of Principlism is meaningless unless all members of the eldercare provider team apply them with diligence and consistency. 

As an Elder Law firm, we apply these principles in the context of public benefits planning in combination with planning for the elder’s remaining life.  We assess the elder’s care needs, with a view toward providing quality care in the least restrictive environment at a level that improves the quality of her life.  Planning may involve preserving assets, not for the purpose of passing them to heirs, but for the purpose of spending them on living at home with domestic and/or health care, independent living outside the home or in an assisted living environment.  This contributes to the welfare and happiness of the elder and tends to slow the decline in functionality.[47] 

In problem-solving for elders, their care providers and family members should be ever mindful of general demographic trends for the elderly and make themselves aware of their elder’s specific wishes.  Generally, when their life and care needs must be addressed, most elders want to remain in their home where they are most comfortable.  Of those persons over age 70 living in the community and seriously ill, research shows that 29 percent would rather die than go to a nursing home.[48]  Of equal significance, home care tends to improve overall health.[49]  Regarding the needs and wishes of the elder, there is no substitute for taking the time to speak directly with the elder or, if that is not possible, exploring other means of determining the elder’s true wishes for her care. 

Absent an understanding of Medicare and Medicaid home health programs, as well as other caregiver resources available in the community, the planning by the eldercare and family team is likely to focus primarily, if not solely, on nursing home care.  But nursing home care will separate the elder from their warm and familiar environment and will impose a more rigid schedule on the elder.  Even if family visits are not physically impeded, the visits will be more clinical and less pleasant than if the elder was in his home.  A Geriatric Care Manager can provide the eldercare and family team with the expertise necessary to recommend home health and other less restrictive alternatives to nursing home care for the elder.  

When the elder’s needs for long-term care can no longer be met either inside the home or without the intervention of paid providers, the elder enters, “the long-term care system.”  The elder (and their eldercare and family team) are now embarking on an arduous journey through murky waters.  They should begin their journey with the observation that “the current system in our country for addressing long-term care is a non-system, a hodgepodge of services that fails to meet the needs of the elderly and disabled in the variety of long term care settings.  It is economically inefficient and it fails to assure the quality of services which are provided.”[50]  

The “long-term care system” does not fund assisted living for the elder and it provides home health care for the elderly in a hodgepodge fashion.  As a consequence, the long-term care financing system is biased in favor of institutionalizing the elderly in order to provide them with long-term care.  This means the elder will probably have to be in a nursing home, even though it costs less to support elderly individuals in their own homes and communities than in nursing homes and other institutional settings.[51]  

In all matters and decisions affecting the life of the elder, the preeminent concern of every eldercare team member and the goal they each must strive to achieve is the well-being, quality and sanctity of the life of the elder.  After all, isn’t that what we all would want for our own Mother? 

Conclusion

Professional rules of conduct and codes of ethics are not hand-cuffs to those who provide much needed and loving care to the elderly.  Rather, caregivers who couple these rules and codes with and implement the Principlism ethical framework will be better equipped to confront the ethical issues and dilemmas they are likely to encounter in eldercare.  And ethical professional conduct while delivering eldercare will enhance the stature and credibility of caregivers within their community and encourage others to act in like manner.  Most importantly, in the end, the elders we all serve will benefit the most for their quality of life will be improved as we work in their best interest.    

Special thanks and appreciation go to my friend and colleague, David L. McGuffey, who’s Internet posted article Ethics for Elder Law Attorneys was an important source for this presentation.  http://www.mcguffey.net/Ethics%20Nashville%20082004.pdf

Mark R. Ensign, jd, cpa

Attorney and Counselor at Law

Ensign Law Firm, P.C.

500 S. Taylor, LB 228

Amarillo, Texas 79101-2446

(806) 373-7705

MrEnsign@Ensignlaw.com

www.ensignlaw.com