INTRODUCTION

The first part of this chapter deals with the legal and ethical issues that commonly confront mental health workers dealing with older people. As the legislation dealing with these matters differs between jurisdictions, mental health workers must understand their local law. This chapter deals with the principles that usually underpin such law. The second part of this chapter introduces the reader to capacity assessment and the common situations in which this arises.

INFORMED CONSENT

Healthcare interventions administered without consent may constitute the legal torts of assault and battery. Thus, all older people must give consent to the assessment and management of their mental health problems or be treated under the involuntary provisions of the local Mental Health Act (MHA). The only exception to these principles is the rare emergency situation in which it is necessary for a mental health worker to take immediate action to save a life.

Informed consent can only be provided by a person who has the capacity to do so. Some people with serious mental health problems, such as psychotic depression or dementia, may not have the capacity to give or withhold informed consent for assessment or treatment. In such instances, the law provides for substitute decision makers to make healthcare decisions on behalf of the person. The identity of these substitute decision makers varies from jurisdiction to jurisdiction, but often includes attorneys appointed under enduring powers of attorney and guardians appointed by guardianship tribunals. In some jurisdictions, family members and close friends can act as statutory health attorneys. Mental health workers dealing with older people need to be familiar with local legislation dealing with guardianship. The interaction of the local MHA and the local guardianship legislation must also be understood. In most jurisdictions, involuntary treatment orders under the MHA take precedence over guardianship legislation.

The usual principle of informed consent is that people are fully informed about any healthcare interventions that are proposed. Such healthcare interventions include both assessment procedures and treatments. However, experts have argued about how practicable it is to fully inform people about investigations and treatments, and in practice there are guidelines about the nature of disclosures that are necessary for informed consent to be valid. Following recent legal precedents, it is generally accepted that people should be informed about the risks and benefits of the proposed intervention, and the risks and benefits of not having the proposed intervention. The person should be told about all common and serious adverse effects of any treatment. They should also be told about any adverse effect, regardless of its rarity, that could be of particular significance to that person. They should have the opportunity to discuss the proposed treatment with other people. They should have the opportunity to ask questions and have those questions answered.

The question sometimes arises about whether consent is ever implied, as opposed to explicitly given. In routine low-risk situations in people in whom there is no reason to expect lack of capacity, consent is often taken as implied. For example, if a person voluntarily attends the clinic to see a clinical psychologist for a course of cognitive behaviour therapy (CBT) for mild depression, it is generally assumed that they are consenting to the treatment. After all, if they were not consenting they could cancel the appointment or simply not attend. On the other hand, if their depression was much more severe and had not responded to conventional treatments, electroconvulsive therapy (ECT) might be recommended. Consent for ECT must be formally obtained following a careful process of information giving.

Consent can be granted orally or in writing. For most day-to-day purposes, oral consent is entirely appropriate, whereas for risky or contentious procedures written consent is prudent. However, it is worth noting that a written record of consent is not proof of informed consent, but merely evidence that consent has been sought.

INVOLUNTARY DETENTION AND TREATMENT

As many mental health problems are associated with reduced insight and poor judgment, involuntary assessment and treatment are sometimes required. The law attempts to balance the right of individuals to autonomy with their right to receive treatment. To achieve this balance, mental health legislation mandates a series of checks and balances to make it unlikely that citizens are inappropriately detained or treated, while still making it feasible for mental health workers to assess and treat people with serious mental health problems. The way MHAs in different jurisdictions achieve this balance varies.

PRIVACY AND CONFIDENTIALITY

All healthcare consumers have a right to privacy and confidentiality. Privacy refers to the right of individuals to control access to information about themselves. Confidentiality refers to the responsibility of healthcare workers to protect private information about individuals. As a result of the stigma associated with serious mental illness, including dementia, older people with mental health problems often have serious concerns about privacy and confidentiality, and every effort must be made to work collaboratively with them to obtain the information necessary for a good standard of clinical care. However, there are situations in which the safety of the person or others must take precedence over their right to privacy and confidentiality. Some public health services separate mental health records from general health records in an attempt to improve confidentiality. Unfortunately, this is not a good policy for older persons’ mental health services (OPMHS) due to the high prevalence of chronic medical conditions in older people and the frequent overlap between mental health problems and conditions such as stroke and Parkinson’s disease.

Mental health workers are in a privileged position in that they have access to the most private of facts about a person’s life. With this comes the responsibility to avoid talking about that person in public or semi-public situations, such as lifts or hallways, in which they might be overheard. Mental health workers should also avoid recording information in the clinical record that is irrelevant to the assessment or management of the person.

BALANCING AND MANAGING RISK

The community management of older people with mental health problems entails the management of risk (see Ch 18). Part of providing care in the least restrictive way possible necessitates weighing up the risks and benefits of autonomy and independence for the older person with a mental health problem. Providing humane mental healthcare with zero risk is probably not feasible. However, most would argue that it is important for mental health workers to minimise the impact of risks imposed on older people by their mental health problems. Despite this, many would also argue that it is not appropriate to insulate older people from risk to such an extent that the scope of their lives is so restricted that their quality of life deteriorates markedly, even if their longevity is slightly increased. In an attempt to resolve this conundrum, it might be useful to do a thought experiment in which one tries to imagine what level of risk the older person would have elected to take upon themselves if they had not been experiencing a mental health problem.

GUARDIANSHIP AND ADMINISTRATION

Guardianship orders allow the state to appoint one or more guardians to make healthcare and lifestyle decisions for a person who lacks the capacity to make such decisions. Administration orders allow the state to appoint an administrator, often the Public Trustee, to make financial decisions, including the sale and purchase of real estate, for a person who lacks the capacity to make such decisions. In most jurisdictions, there is a guardianship tribunal or similar office that adjudicates such decisions.

RESEARCH PARTICIPATION

To increase knowledge about mental health problems and their treatment, it is essential for older people to participate in clinical trials and other types of research. Research participation sometimes brings benefits to the research participant, including increased clinical attention to their mental health problem and their general health. More often, however, research participation benefits others, including people who will be treated in the future. The researcher has an ethical obligation to obtain informed consent for research procedures. This obligation is even greater when the research participants have mental health problems that might reduce their capacity to understand the nature and significance of the clinical trial. Thus, substitute decision makers, including the local guardianship authority, are often asked to assist.

END-OF-LIFE ISSUES

Mental health workers commonly encounter older people who are in the last few months of their life and can expect that some of these older people will die each year. Serious physical illness sometimes precipitates changes in mental state and behaviour that prompt a mental health referral and the person dies while waiting to be seen by the OPMHS or shortly after being seen. In other people with existing mental health problems, a life-threatening physical disorder develops leading to the person’s death. Sometimes, mental health workers are asked to see palliative care people in who develop intractable neuropsychiatric symptoms. Occasionally, older people with mental health problems commit suicide. Each of these situations poses particular challenges for the mental health worker.

Mental health workers in OPMHS teams will often find their own feelings about death and dying challenged. They will also fi nd that the older person and their family do not always share the mental health worker’s view about death and dying. Some older people and their families will approach mental health workers in the hope that they might help them hasten death. Legislation in most places prohibits euthanasia and assisted suicide. The doctrine of ‘double effect’ holds that it is ethically acceptable to use strong medication (e.g. narcotic analgesics) to humanely care for a terminally ill person, even if an unintended consequence is their death. However, the use of narcotics in the terminally ill is not usually the role of a community mental health team. In such circumstances, mental health workers should liaise with community hospice personnel in order to ensure optimal care for their the older person.

People with severe dementia sometimes lose the ability to swallow, but otherwise remain in reasonably good general health. In such circumstances, some families and some residential aged care facilities (RACFs) will request or demand the insertion of a percutaneous endoscopic gastrostomy (PEG) feeding tube to maintain the person’s fluid and food intake. This raises a serious ethical dilemma in which humane care must be balanced against futile extension of life. Occasionally, the guardianship authority will be asked to adjudicate.