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Anaesthesia 2014, 69 (Suppl. 1), 4553 doi:10.1111/anae.

12519

Review Article
Ethical and legal aspects of anaesthesia for the elderly
S. M. White

Consultant Anaesthetist, Brighton and Sussex University Hospitals NHS Trust, Brighton, East Sussex, UK

Summary
The elderly have the ethical and legal equivalence of younger adults, yet are treated differently by society. Numer-
ous recent reports have exposed poor inpatient care resulting in part from institutional ageism, which has moral
and legal implications for healthcare providers. Morally, there is an argument for positive exceptionalism in
elderly peri-operative care, pursuing quality improvement through use of a dignity agenda. Legally, numerous
changes in human rights, equality, consent, capacity, and end-of-life laws and professional guidance have consis-
tently re-emphasised the need for greater communication between doctors, patients, their relatives and carers. This
review describes current ethical thinking and legal precedent (in England and Wales), and directs readers to con-
sider areas in which the law might change in the near future, particularly with regard to the end-of-life care of
elderly surgical patients.
.................................................................................................................................................................
Correspondence to: S. M. White
Email: stuart.white@bsuh.nhs.uk
Accepted: 22 October 2013

In addition, the pension age varies according to the


projected cost of any future old-age dependency gap,
Whenever a clinical stone is turned over, ageism
is revealed effectively the ratio between adults who pay tax and
adults who have retired and withdraw a pension. In
Professor John Young, National Clinical 1994, the state pension age was 65 years for men and
Director for Integration and the Frail Elderly [1]. 60 for women, was gradually equalised to 65 for both
from 2010, and will rise to 68 between 2044 and 2046,
There is no legal denition of elderly in English or in recognition of the fact that people are surviving
Welsh law. Instead, there are denitions for when both longer and tter than their predecessors. The
adulthood begins (over 1618 years) and ends (with compulsory retirement age (65 years) was abolished in
death). Pragmatically, society has traditionally recogni- 2011.
sed the transition from middle age to old age by retire- Disregarding philosophical arguments, the option
ment from the workplace, a time of life at which the of an extended working life can be interpreted as a fur-
contribution made by an individual to society is recog- ther sign of progress. Many people want to work
nised by their entitlement to a pension, effectively pay longer, albeit perhaps differently, less strenuously and
without work. However, this does not help with the less often [2], and would appreciate the legal protection
denition of old age: people retire early, and the age at to do so. Work after retirement age appears to confer
which a state pension is received (6168 depending on health and psychological benets [3, 4]. Nevertheless,
birth date and sex) may differ from the retirement age. most old people eventually stop working, and often as

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Anaesthesia 2014, 69 (Suppl. 1), 4553 White | Ethical and legal aspects

a result of the very reasons that delayed their retire- expensive treatment for a limited number of younger
ment: illness, frailty, fear of burden or dependence and patients is more benecial for society than cheaper
cognitive decline. treatments for larger numbers of older patients
Chronological and functional ages, then, are mea- (Table 1). However, such calculations tend to be pre-
sures of the length of life, towards the far end of which dictive and prescriptive: they assume that the younger
lie old age and oldest old age [5]. This denes both patient, in the example given in Table 1, will not
the legal and ethical positions concerning old age: old require further treatments in the next 50 years and
people are older adults, but effectively the same legal that the older patient will die within ve years, when
and ethical entities as younger adults. he/she may survive longer. More importantly, they
place an objective value on the quality of a patients
Should older people be treated life: the 75-year-old may consider that treatment has
differently within healthcare? signicantly increased the subjective quality of his/her
Despite their legal and ethical equivalence, older peo- life, relatively if not absolutely [13]. Finally, they imply
ple are treated differently by society [6], and this is that reducing the cost of a treatment is an essential
apparent within the provision of healthcare. In fact, component of increasing its utility. This explains the
their exceptional treatment is entirely appropriate: fundamental importance of reducing the inpatient cost
older people access healthcare far more frequently of healthcare for the elderly by reducing complication
than younger patients, because they are more likely to rates and therefore length of stay, particularly for
suffer an illness and less likely to recover from it, high-volume, high-/medium-cost procedures, such as
incurring signicant nancial cost. However, far from emergency abdominal aortic aneurysm, laparotomy
providing negative reasons that support rationing of and hip fracture. Put another way, get care of the
healthcare for the elderly, as has been proposed elderly surgical patient right, and it not only benets
mainly on the assumption that costs will inexorably the patient clinically, but also reduces costs and allevi-
increase [7], illness would seem to provide very posi- ates the need to ration healthcare for other patients.
tive moral reasons for extending geriatric medical and However, despite these moral imperatives, the
surgical care beyond that currently administered. elderly are not always provided with prioritised high-
Indeed, denying the elderly healthcare on the basis of quality healthcare, with the result that their care is
rising cost alone, which is effectively a permutation of more expensive and their outcomes poorer than they
the fair innings argument [8], is increasingly less rele-
vant as longevity becomes less affected by illness and Table 1 An illustrative example of how cost per quality-
more dependent on the biological limits of ageing [9]. adjusted life year (QALY) varies according to life exten-
In terms of any deontological duty of healthcare sion, quality-of-life improvement and treatment cost
reduction, preferentially favouring elderly care. Quality
provision on the basis of need, it would appear to be
adjustment is a fraction stated between 1 (perfect health)
the elderly who should be prioritised. This mirrors the and 0 (dead).
professional/moral duty of the doctor, to provide
healthcare on the basis of need, without regard for
extraneous inuences such as ability to pay or resource Age; years 30 75 75 75 75
Life years 50 5 10 5 5
rationing [1012]. Furthermore, from the principlist remaining
perspective, prioritised healthcare for the elderly could to 80 years
age; years
be considered both the best way of preserving their
Quality 1 0.2 0.2 0.3 0.2
autonomy and the most just way of acting. adjustment
Prioritising care of the elderly also makes good QALYs 50 1 2 1.5 1
Cost of 40 000 1000 1000 1000 750
utilitarian and nancial sense. Essentially the optimisa- treatment;
tion of the greatest good for the greatest number of units
Cost.QALY 1; 800 1000 500 667 750
people, utilitarianism can be used as an argument
units.QALY 1
against elderly care, by calculating for example, that

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White | Ethical and legal aspects Anaesthesia 2014, 69 (Suppl. 1), 4553

need to be. This is a confused dichotomy: it is not age


per se that leads the elderly to seek healthcare so much
Have their nutrition and hydration needs remem-
bered;
as illnesses resulting from being old, and yet access to
healthcare and attitudes to the elderly within health-
Be encouraged formal and informally to provide
feedback (along with their relatives, carers and
care are often discriminatorily related to the patients advocates), to improve practice;
age rather than to their illness [14].
Examples of age discrimination in the National
Have poor practice in their care challenged, learnt
from and reported, as appropriate.
Health Service (NHS) are commonplace [15], despite
specic Department of Health guidance [16]. For Implementation of the recommendations in anaes-
example, the elderly are less likely to be offered day- thetic practice might involve, for example:
care surgery [17] and critical care [18] than younger
patients. The concern is that endemic ageism promul-
Challenging unacceptable language, attitudes or
tones of voice used when addressing elderly
gates a culture in which the elderly are viewed differ- patients;
ently and treated less well than younger patients, and
that institutional acceptance of poor quality care then
Appointing an Older peoples champion and Lead
Clinician for Geriatric Anaesthesia within each hos-
becomes the norm. This is implicit in the ndings of pital;
the Francis report into the (lack of) care received by
mainly elderly patients at the Mid Staffordshire NHS
Appointing a Professor of Geriatric Anaesthesia at
national level;
Trust [19], echoing the Health Service Ombudsmans
2011 report Care and compassion? [20]. The Royal
Including geriatric anaesthesia as a core module for
anaesthetists in training;
College of Physicians is correct to point out in
response to the Francis report that if the NHS gets
Building consideration for the elderly into all future
guidelines where appropriate;
care right for vulnerable older people, the most dif-
cult group to manage, then we believe care is likely to
Redesigning recovery unit facilities to optimise
early postoperative recovery;
be improved for all other patients [21].
Morally, there is an urgent need to reverse the cul-
Working with geriatricians to develop multimodal,
multidisciplinary care pathways for peri-operative
tural apathy towards treatment of the elderly in hospi- care of elderly patients;
tals, but managing this transition is likely to be
difcult. Inherent societal ageism needs to be over-
Challenging clinical and care-access decisions made
on the basis of age rather than illness (in accor-
come, and this will not be easy. Until such time as this dance with the Equality Act 2010 [24]);
trend is reversed, a more practical solution is to pursue
a dignity agenda in healthcare, such that the innate
Taking part in quality improvement programmes
and contributing to audit and complaint analysis;
right of each elderly patient to be valued and receive
ethical treatment is recognised [22]. In response to the
Enabling decision-making using, for example, large
print or audio patient information;
Health Service Ombudsmans report [20], the NHS
Confederation set up a Commission on Dignity in
Enabling recovery through attention to details such
as taking care of functional aids (false teeth, glasses,
Care for Older People, specically to recommend prag- hearing and walking aids);
matic solutions to the poor care received by the elderly
in hospitals and care homes [23]. The report, which
Adopting specic attitudes (for example, analgesia
as a human right [25]).
was welcomed by the General Medical Council (GMC),
makes 37 recommendations, and introduces the con- Legal aspects of anaesthesia care for
cept of always events (contrasting with never events), the elderly
such that older patients should always: As alluded to above, the elderly are equivalent to
Be treated as they wish to be treated with respect, younger adults, in legal terms. Recent human rights
dignity and courtesy; and anti-discrimination statute conrms the common

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Anaesthesia 2014, 69 (Suppl. 1), 4553 White | Ethical and legal aspects

law position in this regard. The 18 articles of the A theme that runs throughout the Francis report
Human Rights Act 1998 (HRA) dene how the State, [19] concerns whether there should be a statutory
its public bodies (i.e. hospitals) and its individuals can duty of candour providing for open admission of
interact with each other [2628] and could be used to medical/systems error in the event of patient harm
determine whether the treatment received by an [35]. This has relevance to the common law relating to
elderly surgical patient is lawful [29]. This is yet to be consent, the standard of information provision, which
tested in law; at the time of writing, the treatment approximates to telling the patient what a reasonable
received by patients at Mid-Staffordshire NHS Trust person in the patients position would want to know,
[19] has been considered neither under article 3 of the but falls short of demanding absolute candour. It will
HRA (i.e. whether it constitutes inhuman or degrading be interesting to see whether any future statutory duty
treatment), nor, indeed, under the Corporate Man- of candour transfers to information provision in con-
slaughter/Homicide Act 2007 [30]. The Disability Dis- sent, nally closing the door on any therapeutic privi-
crimination Act 2005 makes it unlawful to lege of a doctor not to tell a patient the truth for fear
discriminate against persons on the grounds of their he/she will refuse treatment.
disability, requiring providers of services (including The presumption in law is that an adult patient
the NHS) to improve physical access to facilities and has capacity unless the doctor (usually) decides that
services [31]. The Equality Act 2010 [24] makes it he/she does not have capacity, such that he/she fails
unlawful for (doctors) to discriminate against, victim- the three-stage test proposed in the case of ReC [36]
ise, or harass persons because of their age, or base by not understanding and/or remembering the infor-
decisions about care and treatment on a patients age mation provided by the doctor about the proposed
rather than a proper assessment of his/her social and treatment, and/or not using it and weighing it in the
physical needs. For example, a doctor should not balance when coming to a decision about whether or
refuse to refer patients for surgery based on their age not to have treatment. Capacity is a question of fact:
alone, but must also consider their individual needs either the patient can understand/remember/use the
and physical condition. information, in which case, he/she has sufcient capac-
Despite the legal equivalence of the elderly, ity to decide, or he/she cannot understand and/or
advancing age is associated with cognitive decline, ill- remember and/or use the information provided, in
ness and an increasing likelihood of death, and these which case, he/she does not have sufcient capacity to
impact consensual decision-making about surgery, decide to give or not give consent.
resuscitation and end-of-life care. Adults with capacity continue to be treated
according to the common law. However, although the
Consent prevalence of dementia may be declining [37], the
According to the common law in England and Wales, number of older patients with dementia in the UK, for
adults can consent to or refuse any medical treatment example, is expected to increase as the population ages,
at any time and for whatever reason [32], provided from 800 000 in 2012 to ~1 million in 2022 [38]. The
that, at the time the decision about treatment needs to capacity for making decisions about their treatment
be made, the patient has the requisite mental capacity may be impaired in older patients with dementia, or
to make a decision voluntarily, based on the informa- even absent. Older patients are also at risk of acute
tion provided. cognitive decline (delirium) secondary to infection, ill-
Voluntariness, although rarely contested in court, ness, changes in medication, hypothermia, pain and
is potentially compromised in older adults, particularly (opioid) analgesia. Formerly, no other person could
when there is dependency on caregivers or undue consent to medical treatment on behalf of an adult
deferment to the views of third parties (usually without capacity, so treatment was provided without
younger relatives) [33], or in situations when the consent if a doctor (usually) considered the treatment
patient feels like a burden to the health service or indi- necessary and in the patients best interests, for exam-
viduals [34]. ple, hip fracture repair for the purposes of analgesia

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White | Ethical and legal aspects Anaesthesia 2014, 69 (Suppl. 1), 4553

and rehabilitation in a patient with marked vascular minimum force necessary for the shortest time
dementia. However, concerns relating to the undue possible [4043].
deference that such decision-making responsibility
It should be noted that best interests require con-
granted to doctors, together with general concerns
sideration beyond what is in the patients best medical
about the legal safeguarding of vulnerable adults, stim-
interests, to include for example, nancial and social
ulated a number of national reports, culminating in
factors, or concerns about future treatment that the
the enactment of the Mental Capacity Act 2005
patient may have voiced previously. Rather than decid-
(MCA) [39]. In essence, the MCA represents a codi-
ing in isolation or in contravention of their wishes (as
cation of previous common law, but adds statutory
was more accepted previously [44]), the GMC recog-
recognition of proxy decision makers and advance
nises a duty of the doctor to try reasonably to ascer-
directives, as well as guaranteeing legal safeguards in
tain what the wishes of patients might have been
research participation for patients who lack the mental
about the decision that needs to be made currently
capacity to make decisions.
[45], by asking other properly interested parties, such
The MCA has ve core principles [40], the rami-
as close relatives and carers.
cations of which when translated in terms of medical
The MCA holds that reasonable steps must be
care indicate that:
taken to ascertain whether the patient has made a
1 Patients over 16 years of age have capacity unless previous advanced directive (living will). Advanced
they are clearly incapable i.e. doctors should directives have been recognised in common law since
assume that all adults, even if they have previously ReAK in 2001 [46], but are provided statutory protec-
been diagnosed with a cognitive decit, are capa- tion by the MCA. Legally, they proscribe treatment
ble of making decisions, unless they fail a ReC test (but cannot demand treatment that doctors do not
of capacity and cannot understand and/or remem- think is in the incompetent patients best interests
ber and/or use the information about treatment [47]) provided that a refusal of treatment was clearly
provided to them when a treatment decision needs dened at the time the previously competent patient
to be made; made that voluntary decision, based on information
2 Patients must be given a reasonable chance to about the likely consequences of refusal in the circum-
demonstrate their capacity, which obliges the doc- stances that would be likely to arise. Advanced direc-
tor, for instance, to provide information in a more tives are still relatively uncommon; analysis of the 395
digestible form (speaking more slowly/louder, most recent hip fracture patients undergoing surgery
large print information sheets), ensuring that com- in Brighton, for example, shows that whether an
munication aids are used (glasses, hearing aids); advanced directive existed was only ascertained in 194
3 Adults with capacity can make unwise decisions, (49.1%) patients, and only 15 (7.7%) of these had for-
for instance, when an otherwise well 90-year old mally made one.
refuses simple but life-saving surgery; More normally, however, information may be pro-
4 Elderly patients without capacity should be treated vided by relatives or carers, and the closer their rela-
with the minimum necessary intervention if pro- tionship to the patient, the more informative they will
vided in their best interests, allowing, for example, be. Similar to an advanced directive, a competent per-
for palliative rather than denitive surgery, and son can voluntarily appoint a donee of a Lasting
surgery with intervention-limited postoperative Power of Attorney (LPA) to make surgical treatment
care. Restraint should be very seldom needed, but decisions on their behalf, should he/she lose that
can be used if: the patient lacks capacity; it is rea- capacity him/herself through, for example, dementia.
sonably necessary and in their best interests to be Provided they are competent to decide voluntarily
restrained to prevent their harm; and it is propor- themselves based on the information provided them,
tionate to the harm that is likely to the patient, in and are correctly registered with the Ofce of the Pub-
which case, the restraint must be used with the lic Guardian, donees can make any and all treatment

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Anaesthesia 2014, 69 (Suppl. 1), 4553 White | Ethical and legal aspects

decisions, including end-of-life decisions about resusci- about the law themselves [53]), aim to alleviate the
tation and treatment withdrawal, if indicated. patients condition, not be possible on patients who
This differs from the power invested in either a retain capacity, and potentially benet the patient or
Court (of Protection)-appointed deputy (CAD), who can aim to help future patients with the same illness (in
make all but end-of-life treatment decisions about an which case, the research must carry minimal risk). In
incompetent adult who had not previously chosen an addition, the patient must not appear to object to take
LPA, written an advanced directive or has surviving fam- part, and the welfare of the patient must always be
ily [48], or an Independent Mental Capacity Advocate placed above the importance of the research and con-
who supports decision making by LPAs, CADs, doctors, rmed by an appointed third party [5457]. Although
relatives and properly interested parties, but who cannot this process can appear so resource- and time-intensive
make any proxy surgical treatment decisions him/ as to inhibit the conduct of research involving the
herself. elderly, this has been found not necessarily to be the
case, provided provision is made for the inherent dif-
Involving older patients in research culties anticipated [58, 59].
A recurrent theme in the treatment of elderly surgical
patients is that their care is not particularly evidence- End-of-life care
based. Indeed, many of the drugs taken and procedures The care of elderly surgical patients is inextricably
undergone by the elderly are extrapolated from tightly linked to considerations about end-of-life care, as post-
formalised, randomised (controlled) trials involving operative mortality increases independently with age
younger, healthier participants. There are two moral [60], particularly after emergency surgery [61].
questions here. First, is it right knowingly to use trial The last decade has seen trenchant and partisan
patients who do not patho-/physio-/pharmacologically debate about end-of-life issues, including the human
represent the eventual target patient group, introducing rights aspects of withdrawing treatment, assisted dying,
selection bias [49], usually for reasons of ease (and there- resuscitation status and medical futility. Fortunately,
fore cost) of trial conductance [50]? Secondly, and fol- the GMC has proved adept at rapidly updating its pro-
lowing from this, is it right not to do research that might fessional guidance in this area, in line with changes in
potentially benet future patients, because problems the law [45].
with study design, patient safety, cognitive dysfunction The case of Diane Pretty, a 42-year-old with end-
and the consent process, and the introduction of patient stage motor neurone disease, conrmed the interpreta-
biases, might otherwise make a trial virtually impossible, tion of several articles of the HRA 1998, namely that a
or too expensive, to recruit to from the eventual target right to life (Article 2) does not extend to a right to
population [51]? The moral solution is that basic science choose when to die, that her medical condition caused
and clinical research need to be performed and her suffering rather than any inhumane medical treat-
urgently that involves the spectrum of unwell elderly ment (Article 3) and that any right to respect for pri-
patients in order to understand better, for example, how vate and family life (Article 8) related to the conduct of
drug pharmacokinetics and interactions have benecial life rather than how her husband might assist her death
and adverse effects in the very elderly [52]. There is also [62]. In nding the GMCs previous end-of-life guid-
an ethical argument for their inclusion into prospective, ance lawful in Burke, the Court of Appeal effectively
comprehensive, anonymised observational data collec- conrmed both the common law position established
tion, to break the cycle of ignorance that results from in Bland [63] by nding that the patients medical con-
auditing practice that is not guided by evidence. dition (in Burkes case, spinocerebellar ataxia) causes
The involvement of adult participants who lack death rather than any withdrawal of treatment (includ-
decision-making capacity in research is now specied ing articial hydration and nutrition), and that with-
by the MCA [40]. The research proposed must have drawal of treatment from a patient without competence
the ethical approval of a properly constituted Research does not constitute inhuman or degrading treatment
Ethics Committee (although these may be confused [47]. Furthermore, doctors are not obliged to provide

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White | Ethical and legal aspects Anaesthesia 2014, 69 (Suppl. 1), 4553

medical treatment requested in any advanced directive account the wishes of patients and relatives [68] and
if they do not think that it is in the subsequently the dignity of the patient. The Department of Health
incompetent patients best interests. agreed to phase out the LCP within 12 months, and it
In 2010, after Burke, the GMC replaced its 2002 is likely that the GMC will need to amend its end-
guidance Withholding and Withdrawing Life-prolong- of-life guidance accordingly and assist in nding an
ing Treatments with the current guidance, to take into alternative [69]. Agreeing with the GMC and joint
account changes in good medical practice and consent BMA/Resuscitation Council/Royal College of Nursing
guidance. Unfortunately, this meant that the new guid- resuscitation guidelines [45, 70], the Commission re-
ance was not able to include the precedent set by the emphasised the most basic of precepts in elderly
case of Debbie Purdy, a 46-year old with primary pro- peri-operative care, that there are situations that arise
gressive multiple sclerosis, in which the House of relatively commonly when the risks of treatment may
Lords [64] ordered the Director of Public Prosecutions outweigh the benets, or the treatment may have min-
(DPP) to issue guidance on when a patients relative imal success, or be futile [71], in which case decisions
might face prosecution for assisting or abetting a sui- about resuscitation status and end-of-life care must be
cide contrary to s.2(1) of the Suicide Act 1961 [64], taken early and in consultation with patients and their
ruling that the lack of clarity constituted a violation of relatives/carers, as appropriate.
the right to Ms. Purdys private and family life. The
DPP duly published this guidance in February, 2010, Conclusion
dening the public interest factors against prosecution, The elderly occupy merely the far end of the age spec-
basically when a suspect close to the terminally ill trum of adulthood, and therefore should be treated
patient minimally helped the patient to act on his/her morally and legally the same as other, younger adults.
clear wish to die and then reported the suicide [65]. However, it can be argued that their healthcare
However, the DPP was specic in proscribing medical demands an attitude of positive exceptionalism, to
involvement by stating among the public interest fac- oppose the negative stereotyping and ageism that
tors in favour of prosecution (para. 14) that a suspect appear to characterise their care currently and that
was acting in his or her capacity as a medical doctor contribute to their relatively poorer access to, and out-
and the victim was in his or her care. The GMC come after, surgery. The law is evolving rapidly to
issued guidance in January, 2013, for assessing tness address perceived decits in the ethical health treat-
to practise after allegations that a doctor assisted death ment of elderly patients, and professional guidance is
[66], making it clear that nothing in this guidance necessarily evolving to include these changes. However,
prevents doctors from prescribing medicines or treat- it remains to be seen whether the law provides a more
ment to alleviate pain or other distressing symptoms, effective tool for changing cultural apathy towards the
but re-emphasising that assisting or abetting a suicide elderly in peri-operative healthcare, or whether change
is a criminal offence. This is advice that may yet need is brought about primarily by professional leadership
to be changed if the Assisted Dying Bill is enacted, and the informed involvement of all health profession-
allowing assisted suicide by patient self-administration als; it is likely that both will be needed.
of medication prescribed by a doctor specically for
the purpose of suicide. Competing interests
However, concerns about medical intervention led SW was a member of the AAGBI Consent and Anaes-
the Minister of State for Care Support to commission thesia for the Elderly Guidelines Working Parties, is a
an independent report on the formal (Liverpool Care) Council member of the Age Anaesthesia Association,
pathway (LCP) by which terminal inpatient care has and is an Editor of Anaesthesia.
more recently been formalised [67], which reported in
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