Ethical Issues in the Older Surgical Patient: A Lawyer s Perspective

1. Ethical Issues in the Older Surgical Patient:A Lawyer�s Perspective Barry Speker barryspeker@samuelphillips.co.uk

2. What is the ethical position ?

3. Ageism in Medical Treatment �Where age is an indicator of benefit or risk, age discrimination is appropriate� � NIHCE 2005 �The elderly should be refused operations if they are unlikely to live long enough to enjoy the benefits�- one-third of medics surveyed by The Doctor Jan 2008 Older patients less likely to receive treatment to prevent stroke � National Audit of stroke units 2004 41% of elderly patients clinically eligible for aortic valve replacement surgery were denied the operation on 3year survival guidelines � Heart Journal

4. Unfair on the Elderly �It is outrageous to say that older people should miss out on important treatment simply because of their age. All too often people are treated like second class citizens, denied their basic dignity and access to important services.� Gordon Lishman, Director-General, Age Concern

5. Superficial Justification Elderly people are sick more often than younger people The elderly suffer more from being in end stage of chronic progressive degenerative diseases The elderly may lack the capacity to make critical decisions The elderly may be less demanding of treatment They may not have persuasive advocates

6. Principles of Medical Ethics Beneficence and Non-beneficence Do good � and don�t do harm Autonomy Patients with capacity have the right to make healthcare decisions about their own bodies Justice Fair allocation of limited health resources? Respect for the sanctity of human life Differing religious views, relevance of human rights, when does treatment become futile? Who decides �best interests?

7. 1 Beneficence and Non-Malfeasance Calculating cost/benefit analysis more complex Harm more likely; benefit less certain Additional disadvantages to elderly of hospitalisation � confusion, disruption to daily life, risk of falls Post-operative problems, higher risk of cognitive impairment after major surgery, DVTs Consider goals of surgery � realism about risks and complications � Just live with it? Enable patient to make real and informed decisions � telling the whole truth ?

8. 2 Autonomy Facilitate autonomy � Mental Capacity Act 2005 Do not make assumptions � avoid stereotypes Beware greater tendency of elderly to acquiesce Over-reliance on judgement of clinicians What would you do Doctor? What if it was your Dad? Advance Directives � Validity, Clarity, Relevance Proxies � acting in patient�s interests? Ulterior motives Undue influence � relatives, carers, religious groups Patient�s previous statements. High evidential burden Has enough time been spent with patient, relatives, other clinicians, GP � demotivation from poor prognosis

9. 3.Justice Health Economics Utilitarian Approach � resources to do the most good for the most people How judged? How to help the most people? Too simplistic NICE too fixed on VFM/ saving money? Idealistic Approach - help the people who need it most Elderly need disproportionately more healthcare Would society stand for this? Realistic Compromise To try to fairly allocate to benefit the largest number and the largest numbers using evidence base Note: The Courts will not intervene to challenge NHS allocation of resources, provided a recognised procedure has been followed and the decision is not bizarre

10. 4 Sanctity of Human Life Human Rights Act 1998 Art 2 Right to Life; Art 3 No inhuman or degrading treatment; Art 8 Respect for private and family life - Dignity No right to demand particular health treatment No euthanasia Suicide Act Hippocratic tradition, Christian, Jewish, Muslim views Omissions �withholding/withdrawing, but acts? Dr Cox � well intentioned; Dr Harold Shipman Double effect The Diane Pretty Case 2002 � no immunity for Mr P The Reginald Crew Case 2003 no prosec of Mrs C Do not strive officiously to keep alive

11. Law?������Ethics ?

12. Legal or Ethical? Law should be ethical Can not conform to the ethics of all Conjoined twins, stem cell research, savour siblings, abortion, transplantation Breach of law- criminal prosecution, professional and other discipline, civil claim, publicity Breach of ethics � professional and other discipline, civil claim,publicity,complaints

13. Complex Decision Making Multi-Disciplinary Teams Protocols Guidelines of BMA, Royal Colleges, End of Life Decisions BMA 2007 Learning from Audit Peer Review Advice from Trust Solicitor Ethics Committee Full record in the notes

14. Assessment

15. Pre-Operative Assessment of the Elderly for Surgery Age not good sole predictor of surgical risk Physiological age-related changes increase risk of surgery and anaesthesia Co-morbidities increase with age Aim of asst to integrated response which are clinically reduced or have failed and to review individual organ systems for functional reserve: Chest disease common in elderly;ischaemic heart disease;pulmonary complications;re-establishing mobility-b/p-DVT;increased delirium,confusion,risk of post-operative cognitive impairment argues against GA and sedation;renal insufficiency Assessment for emergency surgery with no full evaluation and danger of assumptions

16. Withholding or Withdrawing Treatment Sanctity of Life � Autonomy GMC Guidelines 2008 www.gmc-uk/guidance/current/library/withholding_lifeprolonging_guidance.asp Modern methods to prolong life include CPR, renal dialysis, artificial ventilation, ANH, inotropic support . But life has a natural end. Ethical dilemmas: How long to continue? Has life become futile? Does continuing active treatment offend patient�s dignity? How does doctor respect sanctity of life when limiting supportive treatment? Sufficiently weighing the views of patient, healthcare team, relatives, carers How to decide what is under-treatment or over-treatment towards end of life What is an acceptable quality of life? A difference between �ethically acceptable� and �legally permissible�

17. CPR � DNAR Autonomy�Justice�Sanctity Joint Statement from BMA, Resuscitation Council (UK) and the RCN 2007 All Trusts must have policies Presumption in favour of CPR if DNAR not recorded Ageism not acceptable test Consent/Assessment of competence/Advance Directives/proxies Decision by most senior clinician but can be delegated �Experienced nurses� included Regular review

18. Legal Position Doctor has duty of care to protect human life and provide Bolam standard of care. No absolute duty to prolong life at all costs No absolute obligation to provide treatment demanded � clinical judgement/resources � Leslie Burke Case Withholding/Withdrawing may be lawful within guidelines Positive acts to end life are unlawful �Dr Cox, Dr Shipman, Diane Pretty Competent patients can refuse appropriate treatment even if this is bizarre. No obligation to continue treatment if futile. Clear indication from competent patient must be respected. Permissible to consider whether quality of life with or without treatment would be burdensome rather than beneficial. Responsibility rests with doctor to determine which treatments are in patient�s best interests. In cases of doubt application to Court for declaration of lawfulness. Always consider whether Human Rights Act relevant � approach should be proportionate.

19. CONCLUSION Decisions on treatment are multifaceted bringing into account legal and ethical considerations. Special issues apply in deciding upon anaesthesia and surgery for the elderly patient. Adverse implications for clinicians where unethical decisions are made. With the increasing elderly population a greater awareness of and respect for the interests of elderly patients will be essential.

20. QUESTIONS?