Older People - Consent and Confidentiality

Original Editor - Bhanu Ramaswamy as part of the AGILE Project.

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

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 practioner 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.

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 fundation for good practice. Until such laws are written, the healthcare practitioners and patients will remain vulnerable to what could be easily described as harassement 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.

The below video summarises consent.

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? 

See also Health Promotion and Public Health  and Perceptions about Ageing and Ageism