Older People - Consent and Confidentiality

Original Editor - Bhanu Ramaswamy Top Contributors - Peace Samuel, Bhanu Ramaswamy, Admin, Shaimaa Eldib, Evan Thomas, Kim Jackson, Paule Morbois and Lucinda hampton

Introduction

Consent and confidentiality is an important aspect in working with Older People whether in the hospital, outpatient setting or in the community. It goes a long way to ensure that treatment is agreeable by both parties and not forced. The practice of getting consent and keeping confidential information private should be an integral part of working with older people. It is also an important part of medical ethics and international human rights law. Obtaining informed consents from older adults is a challenging process. Health workers and researchers should be aware of the special needs and strategies available to achieve realistic and ethical informed consents from older adults.

What is Consent?

Consent simply means a person giving you permission to administer any form of medial treatment, examination or test. For consent to be termed valid, it must be voluntary, informed and be given by a person with capacity. The video below explains more using a case scenario.

The meaning of the definitive terms are below:

• Voluntary – this means that the decision to either consent or not to consent to treatment must be made willingly by the person, and must not be influenced in any form by the medical staff, friends or family.
• Informed – the older person must be given all of the information about what the treatment involves like the benefits, risks and alternative treatments.
• Capacity – here, the person must be capable of giving consent and making an informed decision. This could be by the person or an assigned personality with a Power of Attorney.

Why seek consent?

Consent is important to ensure that treatment, tests or examinations being offered to an older person is accepted. This helps with co-operation and adherence to treatment goals. It also helps build a quality relationship between the client/patient and the health worker.

When is consent not needed?

There are situations that require going ahead with treatment despite the person's capability of giving consent and they include:

A person that:

• needs emergency treatment to save their life, but are currently not in the best position to give informed consent. The reasons for the treatment should be fully explained once they have recovered.
• needs an additional emergency attention immediately during a surgery procedure – there has to be a clear medical reason why it would be unsafe to wait to obtain consent.
• has a severe mental health condition, like schizophrenia, bipolar disorder or dementia and lacks the capacity to consent to the treatment of their mental health. Treatment for unrelated physical conditions still requires consent, which the patient may be able to provide, despite their mental health condition.
• needs hospital treatment for a severe mental health condition, but has self-harmed or attempted suicide while competent and is refusing treatment – the person's nearest relative or an approved social worker must make an application for the person to be forcibly kept in hospital, and 2 doctors must assess the person's condition.
• is severely ill and living in unhygienic conditions – a person who is severely ill or infirm and living in unsanitary conditions can be taken to a place of care without their consent.

How is consent obtained?

Consent can be given in several legal and ethical ways as long as it's properly documented how it was obtained. When you are seeking a person’s consent to treatment or care, you should make sure that they have the time and support they need to make their decision. Seeking consent is part of a respectful relationship with an older person and should usually be seen as a process, not a one-off event. They include:

• verbally – when a person orally says they are in agreement.
• non - verbal - a person making a sign or an action showing they are in agreement with the test, examination or treatment.
• in writing – when a person is required to sign a form for treatment or surgery.

What is Confidentiality?

Confidentiality simply means not sharing your client or patient's information without the person's consent or legal justification. It is part of duty of care for all health workers. Globally, legal laws are available backing up the duty of confidentiality in healthcare. The video below explains more using a case scenario.

Consent and Confidentiality

Consent and confidentiality are vital before, or when assessing and managing vulnerable people, such as any person entering a healthcare practitioner's office or place or practice. Vulnerability refers to the fact that their disorder or life circumstances has disadvantaged them against others. Vulnerability also refers to practitioner's for which others have infiltrated their practice without their consent. The healthcare practitioner becomes as or more vulnerable than his/her own patients.You must apply ethical principles to your management decisions, remembering the importance of explaining the aims of your intended intervention each session .Also , evidence recommends asking older people if they ever felt vulnerable to improve the interprofessional practice for older group of patients .

These two issues may stand alone as a subject in themselves, or may be found discussed within ethico-legal material. In certain physiotherapy circumstances and situations e.g. if a person is acutely confused and cannot understand explanations, consent may be assumed by their passive tolerance and participation in treatment. Tensions may arise between the individual’s rights and the professional or organisation’s responsibility to the individual or the well-being of the family. Think of the confused individual at risk of injury yet with capacity to clearly state they do not wish long-term care. Alternatively, a struggling carer who is becoming unwell with the burden may refuse the help of strangers in their house to assist with their charge.

There may come a time when an individual consents to treatment but refuses to let you disclose an issue to a relative that will affect discharge decisions or other future plans. Again, you will need to consult your professional code of ethics to consider how to deal with the issue. Discuss the issue with senior staff even if this compromises your relationship with the individual.

Ethics and law link in with both these issues, especially relating to end of life decisions, or when people have reduced mental capacity. To ensure a fair and valued judgement is made, all contentious issues must be discussed further with the whole of the team involved – including the person and any appropriately involved family members. At times, it is very easy to permit our own personal beliefs to cloud our judgement.

Good Practice

The Mental Capacity Act (2005) for England and Wales was developed to help professionals and patients and their carers with difficult decisions. The Act brought together existing law of the time and simplified it, permitting the needs and wishes of a person who lacks capacity at the centre of any decision making process. It became fully implemented in October 2007. 

An understanding of people’s rights enables decisions to be made regarding risks in the context of the patient’s own life. This is relevant for discharge planning, and is often an area of conflict between professional judgement of the interdisciplinary team and the individual’s choice.

The Core Principles of the Mental Capacity Act (2005) (England and Wales) include:

• A person is assumed to have capacity.
• A lack of capacity has to be clearly determined.
• No one should be treated as unable to make a decision unless all practicable steps have been made to help them.
• A person can make an unwise decision and if it is determined the person lacks capacity then the decision must be in their best interests.
• Any decisions made must take into account their rights and freedom of action.
• It is written in no mental or capacity act since the laws began to be written about the abilities people have to access conversation or see through other people's eyes and therefore override the previous two acts which provides NO real foundation for good practice. Until such laws are written, the healthcare practitioners and patients will remain vulnerable to what could be easily described as harassment and invasion/ intrusion of/in professional practice.

In Scotland the Adults with Incapacity Act (2000) together with the Adult Support and Protection (Scotland) Act 2007 provide a framework for safeguarding the welfare and managing the finances of adults who lack capacity due to mental disorder or inability to communicate well.

Confidentiality is an issue with the older population as a combination of bio-psycho-social aspects requires input from numerous professionals. Within the NHS, confidentiality is dealt with under the terms of ‘Caldicott’. A person might reveal a personal problem you feel unable to deal with, or that needs to be discussed further. For example, suspected abuse to that person or a more serious underlying medical problem. Ensure that issues to be discussed outside of the immediate ward / home environment receive the person’s consent first, and then only reveal information relevant to the consultation.

Discussion Point

Consider the following ethico-legal examples. In each case, think about how you feel personally, and the things you must consider to make an informed and final decision.

• A semi-conscious palliative patient has a chest infection but is not physiologically distressed by pooled secretions. Do you treat them because the relatives are distressed by the vocal fremitus and the condition may worsen, or do you let the patient pass away without intervention knowing the family hold you responsible for their relatives' suffering’?
• What if you experience ageism from the senior therapist in your team who repeatedly states that a 98 year patient is too old for a certain intervention? If you felt they would benefit from input, how would you tackle this? 

Recommended reading

• Informed Consent With People Who Have Dementia
• Overview of Principles of Geriatrics Rehabilitation
• Physiotherapy and Older People
• Older people - an introduction
• Health Promotion and Public Health 
• Perceptions about Ageing and Ageism