As mentioned in the article, The Inherent Risks of Treating Geriatric Patients, appearing in our Fall 2009 issue of Risk Review (see article here) as patients age physicians must adjust the way they assess and treat the elderly patient. There may be a great deal of variation in the cognitive and physical functioning of this population, as well as their acuity level, which makes their assessment more difficult. As such, the evaluation and treatment of every geriatric patient requires an individualized approach.
The previous article on this topic covered various challenges in treating the geriatric patient, one of which was the area of mental capacity and determining whether patients are able to understand the nature and consequences of their condition and/or treatment options. New Jersey has a procedure in place for addressing a situation where an incapacitated geriatric patient has no family member or friend willing to serve as a guardian. If consent for treatment must be obtained, it is generally the responsibility of hospitals, long-term care facilities, county Adult Protective Services (APS) programs and county welfare agencies or other public or private agencies to petition the Superior Court (“the court”) on the patient’s behalf. You may consider contacting one of these agencies if one of your geriatric patients requires service. Once the Superior Court judge adjudicates the patient to be incapacitated, the Office of the Public Guardian (“the office”) is generally appointed by the court to step in and make healthcare decisions for the patients (age 60 and older). The office develops an individualized care plan for the patient based on his or her physical, mental, social and financial needs and then ensures that the care plan is implemented and the patient receives the required assistance.
Older Drivers
As the population ages, physicians also may be challenged with caring for patients who they (or their patient’s families) feel are not safe to drive. In these instances, the safety of the general public must be balanced with the quality of life for an elderly patient who may be exhibiting various signs and symptoms of impairment that could impact their ability to drive safely. When it comes to determining an elderly patient’s ability to drive, physicians should perform evaluations using objective criteria to assess visual acuity and cognitive or physical ability. Medical record documentation should thoroughly support actions taken to determine the patient’s ability to drive, as well as the rationale for any further action taken on the part of the physician. While there are no mandatory driving restrictions on elderly drivers in New Jersey, there is a statutory law that requires a physician to report a patient suffering from “…recurrent seizure, recurrent periods of unconsciousness or for impairment or loss of motor coordination due to conditions such as, but not limited to, epilepsy” (N.J.S.A. 39:3-10.4). The following website offers guidance to physicians:
http://www.state.nj.us/mvc/Licenses/medical_review.htm.
If it is determined that the patient should not drive, patients have a right to be informed of the physician’s obligation to report to the state, and this discussion also should be documented in the patient’s record. While there are exceptions under HIPAA, including that “a covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law,” physicians are best advised to consult with a healthcare attorney to ensure compliance with NJ law on reporting and the restrictions contained in HIPAA, to ensure there is no conflict.
End of Life Decisions
Elderly patients should be encouraged to complete an Advanced Directive for Health Care document (combined Proxy and Living Will) (“Living Will”) and a Power of Attorney. The Living Will sets forth the basic treatment, philosophy and objectives of the patient at the time of illness, or identifies at length, in very specific detail, the patient’s wishes regarding the withholding or withdrawal of any form of health care, including life sustaining medical or surgical treatment or both. Living Wills contain written directions that spell out in advance what medical treatments the patient wishes to accept or refuse and the circumstances in which the patient wants his or her wishes implemented. These instructions then serve as a guide to those responsible for the patient’s care. The Living Will is made after careful consideration, and the physicians and health care representative are bound to follow its mandate. If a patient becomes incapacitated and does not have a Living Will or health care representative to carry out the patient’s desires, a guardian may have to be appointed by the Superior Court.
Pursuant to NJ Court Rule 4:86-12, on the application of a hospital, nursing home, treating physician, relative or other appropriate person under the circumstances, the court may appoint a special guardian to act for the patient regarding medical treatment consistent with the court’s order, if it finds that:
- The patient is incapacitated, unconscious, underage or otherwise unable to consent to medical treatment
- No general or natural guardian is immediately available who will consent to the rendering of medical treatment
- The prompt rendering of medical treatment is necessary in order to deal with a substantial threat to the patient’s life or health
- The patient has not designated a healthcare representative or executed a healthcare instruction directive pursuant to law, determining the treatment at issue
NJ Administrative Code (10:48B-1.1. et seq.) provides guidance with respect to decision-making for terminally ill patients and patients with developmental disabilities.
If you have additional questions or concerns regarding this topic, we suggest contacting a healthcare attorney who is familiar with elder law.
Special thanks to Jennine DiSomma, attorney at law, for her contributions to this article.
The information provided herein is for general informational purposes only. The information is not personalized legal advice. The reader should review the information provided herein in light of his or her own particular situation and seek the advice of his or her own legal counsel.
