Legal and Healthcare Ethics for the Elderly

George P. Smith II

• Éditeur: Taylor & Francis
• Année: 2022
• ISBN:
  9781317822554
• Édition: 1
• Sujet: Psicologia
• Sous-sujet: Salute mentale in psicologia

Increasingly, legislators at the state and federal levels of government are forced to evaluate and act upon the unique problems presented by an aging American public. A domino effect has occurred, evoking concern in educational circles to deal with the varied, complex issues associated with the "new" gerontology. This expanded focus brings in not only mental and public health delivery issues, but reaches and impacts on the social sciences, ethics, law and medicine as well as public policy.

In response to these matters, Legal and Healthcare Ethics for the Elderly provides a balanced analytical presentation of the complicated socio-legal, medico-ethical and political perspectives which interact with gerontology as a field of study. In a straightforward and unambiguous style, it covers information on access and financing healthcare, the ethics of rationing healthcare and the inevitable link to the quality of life, guardianship issues in a nursing home setting, informed consent, living wills and durable powers of attorney, elder abuse, and death with dignity. The economics of care giving is charted and directed by the sometimes harsh realities of the marketplace. Thus, the various philosophical and ethical dilemmas which confront the process of aging are examined here both from a micro- and from a macro-economic perspective. This book exemplifies that it is vitally important to be educated now, to be prepared for the future and thereby make informed decisions - for both ourselves and our loved ones.

Chapter 1

Aging as a Phenomenon

Aging is inescapable because—simply—individual cells are mortal.¹ Perhaps the real shock of growing old is not that it happens, but that it occurs before most people are ready for it.² If pathologies of aging were ranked by the degree to which they are feared, perhaps disorders of the brain that lead to dementia would be at the top. Indeed, this is the single most dreaded disease of all. The next most feared are cancer, bone weaknesses, fractures, arthritis, incontinence, muscular wasting, Parkinsonism, ischemic heart disease, prostatic hypertrophy, and pneumonia together with a generally increased vulnerability to infection. These assaults to the immune system represent disease states that are both discrete and sharply identified. They are superimposed on the natural aging process; each is capable of turning an otherwise normal stage of life into a chronic pattern of illness, incapacity, or even premature death.³

In nature, aging is not a universal phenomenon. Indeed, it is not even a common occurrence; for, in the wild, most creatures either die off or are killed at the first loss of physical or mental power.⁴ Aging, advanced through the continuation of a long period of senescence, is a relatively recent human invention. In the past, aging relatives were probably dealt with in a manner similar to that of primitive cultures today—namely, by some form of euthanasia. Many thousands of years and the development of a workable economy were needed before civilized societies concluded that healthy and intelligent older individuals were assets to an evolving human culture.⁵

Aging has, over the years, been viewed as a “neglected stepchild of the human life cycle.”⁶ Indeed, it has been viewed as a nearly unmanageable problem—much more so than even death. Although death is a dramatic, one-time crisis in a lifetime; old age is a day-to-day, year-by-year confrontation with powerful external and internal forces.⁷ Aging should not be viewed as a disease but as an inherent part of human life. Yet in the modem era it is all too often seen as a tragic social and economic problem. It has become a serious “problem” simply because people are living longer today than they did previously. Thus, at the turn of the century, the aged were not a socioeconomic problem because relatively few attained the age of 65.⁸

In the United States, few people like to consider old age because it reminds them of their own mortality; it frightens with illness and deformity and is all too often viewed as a disease or illness itself.⁹ A contradictory pattern of attitudes is all too often seen here. For, although many pay lip service to idealized images of wise and tranquil white-haired elders, opposite images predominate that, although not disparaging the elderly, see them as a source of decay and undignified dependency. Indeed, the mass media present few if any positive images of aging.¹⁰ Sadly, in the past, national social policies have mirrored these conflicting attitudes¹¹ and not allowed for or promoted the conceptualization of extended objective and humane discussion of this topic.

The various experiences of old age have truly become inseparable from cultural representations of aging.¹² Western cultures, aging, old age, and death are all so inextricably related that it becomes nearly impossible to separate individual, phobic responses from social constructions and aging practices from ageism.¹³ Gerontophobia (or an irrational fear of aging) and ageism as cultural fears and social practices can only be attacked by producing new, positive representations of aging.¹⁴ Perhaps a modest beginning in this direction may be seen in the very language of gerontology wherein a change in phraseology leads to a more positive connotation associated with the phrase “old age.” Accordingly, “late life,” “later life,” and even “growing older” are beginning to be used more frequently in order to de-emphasize the idea of a prospective or fixed stage. And, “life course” underscores this shift in attitude over terms such as “life cycle” or “life span.”¹⁵

In 1969, Dr. Robert Butler coined a word—“ageism”—to explain precisely what was occurring then and, in reality, still exists today. It is seen

as a systematic stereotyping of a discrimination against people because they are old just as racism and sexism accomplish this with skin color and gender. Old people are characterized as senile, rigid in thought and manner, old fashioned in morality and skills … ageism allows the younger generation to see older people as different from themselves; thus they subtly cease to identify with elders as human beings.¹⁶

Interestingly, during the past several years, “intergenerational equity” has become a watchword and contemporary metaphor for ageism for such lobbying groups as the Americans for Generational Equity (AGE), which have asserted that because older persons already consume more than their proportional share of available public resources, it is unreasonable as well as socially and economically foolish to allow the nation to divert more and more public funds for healthcare for the elderly from services (e.g., healthcare, housing, and education) for the young.¹⁷

THEORIES OF AGING

Although the true nature of the aging process and the pathogenesis of senescence still count, two lines of reasoning or theories are advanced to explain the process: one focuses on extrinsic factors, or the continued progressive damage done to cells and organs as a consequence of their normal environmental functions; the other evaluates intrinsic factors and stresses genetically designed or predetermined life spans that control development not only of cells but of organs and entire organisms.¹⁸ Both theories conduce to Isaac Newton’s Second Law of Thermodynamics or the “increasing entropy” law thought to apply to all systems. Accordingly, it is held

that all systems tend to become more disorganized as time passes, unless energy is expended to generate order. Unless molecules are stored at absolute zero and shielded from all forms of radiation, they will gradually deteriorate to less ordered arrangements of their constituent atoms.¹⁹

It is seen, then, that although the law of entropy remains invariant—except in the instance of subatomic particles—the duration of time during which order is maintained is highly variable. Thus, it has been suggested that aging can be interpreted as but a complex variant of Newton’s basic law.²⁰

Old age should not be viewed as either solely biological or a cultural fact. Rather, it should be understood as a whole; as a process halfway between illness and health and as a status imposed by society.²¹ Although at any age, the way conditions supporting attainment and maintenance of life satisfaction vary, for older people they remain virtually the same as those faced by younger adults—with only the context within which solutions are sought being different. Thus, all age groups suffer a decline in the level of life satisfaction without sufficient food, clothing, shelter, and social relations.²² The four dimensions of the individual—physical, psychological, social, and spiritual—all interact differently from a contextual standpoint as age progresses and they should be integrated into a balanced plan of both care and intervention in order to assist the individual in finding a sense of reality and meaning or satisfaction in daily living.²³

SOCIAL DEMOGRAPHICS

Increased Longevity

When this century began, fewer than 1 in 10 Americans were more than 55 years old, and 1 in 25 were more than 65 years old. In 1987, statistics showed that 1 in 5 Americans were at least 55 years old and 1 in 8 was at least 65.²⁴ The “baby boom” generation (those between the ages of 22 and 40), which spawned as a result of increased fertility since World War II, from 1946–1964, will dominate the age distribution of this country well into the next century. Thus, by the early part of the 21st century when this group starts collecting the Social Security benefits that it earned during its productive years, it will swell the ranks of the 65-plus generation to the point where at least 1 in 5 Americans will in fact be a part of that age group. Although increased longevity will continue to swell the ranks of older Americans, that explains only part of this demographic reality. The central reason is the increase in the annual number of births before 1920 and after World War II.²⁵

It is expected that the median age of the U.S. population will rise—because of the projected growth in the older population—from 32.8 years old in 1987, to 36 years old by the year 2000, to age 42 by the year 2030, and then to 46 years in 2050. The 65-plus population, then, in this study, is expected to more than double between 1985 and 2030, making it the only age group to experience significant growth in the next century.²⁶ One statistical projection finds 86.8 million persons over age 65 in the year 2040; another places the population of 85-year-olds and older in the range of 23.5 million by that year.²⁷ By the turn of the century, half of the elderly population is expected to be age 65 to 74 and half will be 75 years old or older.²⁸ Although growth and longevity in the age 85 and older population may be recognized as a major achievement in combating disease and improving healthcare, it has major implications for public policy because of the high probability of health problems for this age group and of their need for health and social services.

The Support Ratio

The whole shape of the “elderly support ratio” or, the number of 65-plus persons relative to the number of persons of working age (18 to 64 years) is changing because people are living longer and families are having fewer children. In the early 1900s, the average family had four children. Today, the average family has fewer than two children. When this factor is combined with a 27-year increase in life expectancy since 1900, it is clear that the ratio of elderly persons compared to persons of working age has increased. In 1900, there were approximately 7 elderly persons for every 100 persons of working age. In 1990, the ratio was about 20 elderly persons per 100 of working age; and by 2020, that ratio will rise to about 29 per 100—with an expected rapid increase to 38 per 100 by the year 2030.²⁹

In economic terms, the support ratio is important because the working population can be viewed as supporting non working age groups. Yet such a support or dependency ratio is only a crude measure because a significant number of younger and older persons are in the labor force and not dependent whereas others of labor force age may not be working at all. Although it is expected that during the next century the total support ratio (young and old combined) will increase, a substantial decline has occurred since 1990.³⁰ All this suggests that, currently, fewer economic demands are placed on Americans of working age for supporting the young and the old. This decline in the total support ratio—caused as such by a significant decline in the number of children—masks, from a public policy standpoint, the actual rise in the elderly support ratio. This is an important distinction because this ratio is funded primarily by public programs that serve the elderly whereas, contrariwise, most private (i.e., family) funds are directed toward support of the young. The increasing demands on public programs caused by a growing elder population are nonetheless in large measure offset by declining demands on private funds for supporting children.³¹

A Shifting Ratio

When society records a shift from a high ratio of young to a high ratio of the elderly, profound political, economic, and legal implications will be seen. For one, the flow of public expenditures, as observed, will be altered dramatically because these occur typically for the young at the local levels primarily for schools and recreation. The elderly, however, draw their primary source of public expenditures from the federal government with a somewhat lesser expenditure by state government.

This decline in the number of children and a diminished proportion of children relative to the total population will affect, far beyond complex issues of intergenerational transfer payments, local versus federal e...

Table des matières

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Acknowledgments
• Chapter 1 Aging as a Phenomenon
• Chapter 2 A Full or Limited Right of Access to Healthcare Services
• Chapter 3 Healthcare Financing
• Chapter 4 Economic Efficiency, Prioritizing, and Rationing
• Chapter 5 Autonomy, Competency, and Guardianship Paternalism
• Chapter 6 Informed or Negotiated Consent
• Chapter 7 Advance Directives
• Chapter 8 Complexities in Treatment and Nontreatment Decisions
• Chapter 9 Nursing Home Industry
• Chapter 10 Ethical and Legal Rights of Long-Term Care Residents
• Chapter 11 Death with Dignity
• Chapter 12 The Future
• Appendix A Sample Attorney’s Letter to Client Appointed as Guardian
• Appendix B Power of Attorney for Health Care and Instructions for Completion
• Appendix C Model Living Will
• Appendix D Model Living Will with Comments and Instructions
• Appendix E The Dying Person’s Bill of Rights
• Notes
• Index