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Protection of Legal Rights of Older People Professor Colleen Cartwright, Director Aged Services Learning & Research Collaboration* Southern Cross University Adjunct Professor, UNSW Medical Faculty, Rural Clinical School [email protected] * Proudly Sponsored by Banana Coast Community Credit Union Using Advance Care Planning to Protect Older People • Context • Fears and Concerns in the General Community • Advance Care Planning (ACP) to Address Fears and Concerns – Enduring Power of Attorney – Enduring Guardianship – Advance Health Care Directives • Does ACP Work as a Protective Mechanism? Context • Better living conditions/health care have led to increased longevity – this is a success story, and it has rightly been celebrated as such. • In addition, rapid technological development has allowed people who would have previously died to be kept alive for long periods of time, often through the use of such things as ventilators and PEG tubes. But • These successes have led to practical, legal & ethical issues, in particular around protection of frail, vulnerable older people, end-of-life care and extending the dying process Fears & Concerns in the Community 1. Financial Abuse • Financial abuse of older people is common and perpetrators are often family members; • Older people are often afraid to challenge a family member who is misusing their money, for fear they will be abandoned; • Some family members do not consider use of their parent’s assets as abuse: “it’s part of my inheritance” Fears & Concerns in the Community 2. Over-treatment • Cases Reported – Loved one “left hooked up to machines until the very end. We couldn’t even get close enough to give him a hug and say goodbye”. – “Mum always said she wouldn’t want to be resuscitated if her heart stopped, but they wouldn’t listen”. – “I want to make sure that doesn’t happen to me” Carers’ Stories • (Husband) Close to the end of her life, “because the cancer was attacking the bone and she had bad pain in her hip, they put a pin in. And … I wondered why, if they knew she was so crook, why did they do that, because it was a terrible mess … It just added to her pain. And they gave her more chemo as well…and they took numerous X-rays, 3 or 4 a day”. • (Daughter). “She said that the medical staff were running through her room ‘like a gravy train’. She didn’t know most of the time what they were there for or what they were doing… they usually just said something like ‘Now we’re just taking you down to test you for (whatever)’… They never asked her permission”. Carers’ Stories - 2 • (Husband – who felt that the specialist just could not accept “defeat”). “Because of (X – specialist) they were still trying to cure her but it was not any point. They were doing everything. Everyone was making out that this was going to be the answer, when they knew damn well it wasn’t”. • (Wife) “First of all he was stubborn when he was in hospital; he wouldn’t eat - he was just starving himself. They couldn’t get him to eat … so they had to force-feed him. They put a tube down his nose and then they had to tie him in the bed, because he kept pulling it out. He just didn’t want it”. Community Concerns in Terminal Illness: Rank Order FACTORS Loss of mental faculties Loss of control Loss of independence Burden on family Loss of dignity Leaving loved ones Protracted dying Extreme1/Physical2,3 pain 3 Death itself Q1 Q2 NT 1 1 1 2 2 2 * 3 3 * 4 4 4 5 5 5 * 6 * * 7 6 8 9/9 9/9 10/10 Advance Care Planning Helps to Address Fears & Concerns • Financial Mechanisms: – Enduring Power of Attorney – Family Agreements (a.k.a. independent care agreements, personal services contracts, lifetime contracts). (Written agreements give greater certainty). • Health/Personal Care Mechanisms: – Advance Health Care Directives – Enduring Guardianship – Person Responsible Enduring Power of Attorney • Relates only to property & money – EPA does not give person appointed authority to make health care decisions • Power begins immediately unless otherwise stipulated (but attorney is still “agent” and should not act contrary to wishes of principal) Enduring Power of Attorney • Part 2, Section 9 of NSW Powers of Attorney Act states: – Subject to this Act, a prescribed power of attorney confers on the attorney the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do. But: • Does not confer authority to act as trustee • Does not generally confer authority to give gifts • Does not generally confer authority to confer benefits on attorneys (keep property separate; keep records) • Does not generally confer authority to confer benefits to third parties Enduring Guardianship - 1 • A competent person over 18 can appoint an Enduring Guardian (EG) to make personal & lifestyle decisions and/or decisions about medical treatment on their behalf, in case they lose the capacity to make own decisions. • • EG must be: – at least 18 years old – is usually a trusted relative or friend. • EG cannot be a person who, at the time of appointment: – provides medical treatment or care to the person on a professional basis; or – provides accommodation services or support services for daily living on a professional basis; or – is a relative of one of the above. Enduring Guardianship - 2 • A person can appoint more than 1 EG. – If more than 1 is appointed, the principal needs to state how they will make their decisions (jointly or severally). (Note: Can also appoint an alternative EG in case original EG dies or becomes incapacitated). • EG must agree to the appointment, should understand the principle’s wishes and be prepared to carry them out – Appointment must be in writing, in approved form – Form must be signed by principal, EG and witness (solicitor, barrister, Registrar of the Courts) – signatures can be witnessed separately Advance Health Care Directives • An Advance Health Care Directive – is a written document, allowing a person to make their wishes for future health care known – extends the current right of a competent person to refuse treatment to a future time when they may not be competent – is NOT a form of euthanasia, as it only allows actions which a person could legally consent to for themselves if they were competent to speak – only comes into effect when the person making it loses decision-making capacity. Barriers to Use of Advance Health Care Directives Barrier Cty % HPs % Mid-Nth Coast Ptnts % Don’t know how to 61 88 74 Don’t know enough about them 60 91 71 Prefer to leave decision to doctor 37 63 61 Don’t like to think about endof-life issues 33 75 27 Prefer to leave decision to family 29 69 31 (60-69: 43%; 70+: 77%) Benefits of Advance Health Care Directives • Gives control back to patient • Ensures patient’s wishes are known - patient’s own words • Assists health care provider with decision-making • Relieves family stress at time of trauma • Gives security in relation to future events (allows person to live well now by taking away fear of end stage of life) • Makes best use of community resources What if there is no AHCD or EG? • “Person Responsible”: The first readily available & culturally appropriate of – a spouse (provided the relationship is close & continuing) – a (non-professional) carer – a close relative or friend, of the patient (Note: NOT Next-of-Kin and may not be the person the patient would have chosen to make their decisions) • (Note: For a person in a residential care facility, such as a nursing home, the “carer” is not a staff member at the facility. Usually it would be whoever was the carer before the person went to the facility When Does a Person Have Capacity to Make A Decision (e.g. EG/AHCD)? • Person is competent unless proved otherwise • Person must understand the nature and the effect of the decision to be made – (case study); • Person must be able to communicate their decision in some way - not necessarily by speaking or writing - body language may be adequate, e.g. nodding/ shaking head – (case study) Incapacity is Not: • Ignorance • Eccentricity, cultural diversity or having different ethical views • Communication failure • Bad decisions • Disagreeing with health care provider Does ACP Work as a Protective Mechanism? – 1 Financial Issues • Recent C/W Govt Report: “Older People & the Law” – Although some submissions to the inquiry claimed that Enduring Power of Attorney provisions lead to financial abuse, the inquiry concluded that in most cases they work very well – Our research in Qld in 2000 found that 39% of a large random sample had given EPA for finances – extrapolates to over 1 million people; in that same period there had been about 80 cases of proven financial abuse involving EPA; indicates that most are working well – (There is no absolutely certain way to prevent abuse) Does ACP Work as a Protective Mechanism? – 2 Health Care Issues • EG and AHCD are legally binding mechanisms to ensure that patient’s wishes are respected. • They also offer protection to health care providers who limit use of invasive treatments, as requested in AHCDs or by EGs. • AHCDs (or Preferred Treatment Statements completed by EG/Person Responsible) can help to ensure that frail older people who live in residential aged care facilities are able to stay there and be cared for by people they know and love, instead of being taken to hospitals to die. Issue Currently Being Addressed in NCAHS • No provision on hospital admission forms for recording existence of AHCD. – GP who sent AHCD to hospital where one his older patients is regularly admitted had form returned and was told, “Tell the patient to bring it with them when they are next admitted” • No provision on hospital admission forms for recording existence of Enduring Guardian - forms do not comply with legislation – still ask for Next-of-Kin – Next-of-Kin has no legal status in relation to making medical decisions – Patients being admitted to hospital who present Enduring Guardian form are being told “Oh we don’t use those. Who is your Next-of-Kin?” Current Issues in NCAHS - 2 – Scenario: patient presents for admission, has EG form, told “Not required, who is your Next-of-Kin?” – Patient tells EG, “They would not accept the form.” – Patient loses capacity, doctor asks N-o-K for decision – N-o-K gives consent for treatment that EG knows the patient absolutely did not want – Patient ends up in PVS, coma, other negative QoL situation – EG takes hospital/doctor to court; Office of Public Guardian confirmed: it is responsibility of treating medical practitioner to determine “person responsible”, in accordance with the law – Admission staff may also be at risk What do we need to do? – Financial • Recommendation 18 of House of Reps inquiry into Older People and the Law: – That the Australian Government propose that the Standing Committee of Attorneys-General develop: • A campaign to promote awareness of powers of attorney and their advantages for older people • An information strategy to better inform principals of the implications of making a power of attorney, and attorneys of their responsibilities to principals • We all have a duty of care to report suspected abuse; for service providers (e.g. RACF) don’t wait until fees are 3 months overdue before taking action – all the $$ will be gone by then. • The key is Education, incl. presentations to older people’s clubs & groups, service clubs, church-based organisations What do we need to do? ACP for Health Care • Continue educating community members and empower them to ensure that their forms are recorded and wishes respected; continue educating health care providers • Make completion of EG & AHCD forms a routine part of General Practice, and of admission to RACF; also, educate solicitors to tell clients about EG and AHCD when they make a will or Enduring Power of Attorney – (Note: EG forms can be witnessed by Registrar of the Courts – does not require cost of solicitor; AHCD forms can be witnessed by Registrar or JP)