When Does A Minor's Legal Competence To Make Health Care Decisions Matter?

In this article, I examine the role of minors' competence for medical decision-making in modern American law. The doctrine of parental consent remains the default legal and bioethical framework for health care decisions on behalf of children, complemented by a complex array of exceptions. Some of those exceptions vest decisional authority in the minors themselves. Yet, in American law, judgments of minors' competence do not typically trigger shifts in decision-making authority from adults to minors. Rather, minors' decisional capacity becomes relevant only after legislatures or courts determine that the default of parental discretion does not achieve important policy goals or protect implicated constitutional rights in a particular health care context and that those goals can best be achieved or rights best protected by authorizing capable minors to choose for themselves. It is at that point that psychological and neuroscientific evidence plays an important role in informing the legal inquiry as to whether minors whose health is at issue are legally competent to decide.

Health Care Surrogacy Laws Do Not Adequately Address the Needs of Minors.

A couple and their five-year-old daughter are in a car accident. The parents are not expected to survive. The child is transported to a children's hospital, and urgent treatment decisions must be made. Whom should the attending physician approach to make decisions for the child? When such cases arise in, for example, the hospitals where we work, the social worker or chaplain is instructed to use the Illinois Health Care Surrogacy Act as a guidepost to identify a decision-maker. But in our state and the country overall, the limitations of such statutes leave hospital workers to make a judgment call among friends, family, and clergy who may come forward. While surrogate decision-making statutes comprehensively address surrogate decision-makers for adults, a patchwork of laws-permanency statutes, kinship provider statutes, standby guardianship statutes, and, in some cases, surrogate decision-making statutes-provide variable decision-making pathways for children.

Deciding For When You Can't Decide: The Medical Treatment Planning and Decisions Act 2016 (Vic).

The Australian state of Victoria introduced new legislation regulating medical treatment and associated decision-making in March 2018. In this article we provide an overview of the new Medical Treatment Planning and Decisions Act 2016 (Vic) and compare it to the former (now repealed) Medical Treatment Act 1988 (Vic). Most substantially, the new Act provides for persons with relevant decision-making capacity to make decisions in advance regarding their potential future medical care, to take effect in the event they themselves do not have decision-making capacity. Prima facie, the new Act enshrines autonomy as the pre-eminent value underlying the state's approach to medical treatment decision-making and associated surrogate decision-making. However, we contend that the intention of the Act may not accord with implementation of the Act to date if members of the community are not aware of the Act's provisions or are not engaged in advance care planning. There is a need for further research, robust community advocacy, and wider engagement for the intention of the Act-the promotion of "precedent autonomy" in respect to surrogate medical treatment decision-making-to be fully realized.

Consent by Proxy for Nonurgent Pediatric Care.

Minor-aged patients are often brought to the pediatrician for nonurgent acute medical care, physical examinations, or health supervision visits by someone other than their legally authorized representative, which, in most situations, is a parent. These surrogates or proxies can be members of the child's extended family, such as a grandparent, adult sibling, or aunt/uncle; a noncustodial parent or stepparent in cases of divorce and remarriage; an adult who lives in the home but is not biologically or legally related to the child; or even a child care provider (eg, au pair, nanny, private-duty nurse/nurse's aide, group home supervisor). This report identifies common situations in which pediatricians may encounter "consent by proxy" for nonurgent medical care for minors, including physical examinations, and explains the potential for liability exposure associated with these circumstances. The report suggests practical steps that balance the need to minimize the physician's liability exposure with the patient's access to health care. Key issues to be considered when creating or updating office policies for obtaining and documenting consent by proxy are offered.

Sociolegal and practice implications of caring for LGBT people with dementia.

The needs of lesbian, gay, bisexual and trans (LGBT) people with dementia are poorly recognised. This is due partly to assumptions that all older people are heterosexual or asexual. One quarter of gay or bisexual men and half of lesbian or bisexual women have children, compared with 90% of heterosexual women and men, which means LGBT older adults are more likely to reside in care homes. Older LGBT people may be unwilling to express their sexual identities in care settings and this can affect their care. Members of older people's informal care networks must be recognised to ensure their involvement in the lives of residents in care settings continues. However, healthcare professionals may not always realise that many LGBT people rely on their families of choice or wider social networks more than on their families of origin. This article explores sociolegal issues that can arise in the care of older LGBT people with dementia, including enabling autonomy, capacity and applying legal frameworks to support their identities and relationships. It also highlights implications for practice.

Use of power of attorney in Scotland.

BACKGROUND AND AIMS: Power of Attorney as a form of surrogate decision making was introduced within the Adults with Incapacity, Scotland Act (2000) to help individuals who lack mental capacity due to illnesses like dementia. Even after a decade, little was known if it has been useful. We sought to find out how useful the power of attorney document has been so far in supporting people when they lose their capacity and identify any barriers. METHODS AND RESULTS: We did a survey and approached a random sample of 5000 attorneys in Scotland. A total of 1226 attorneys responded; 59% of the respondents had never used their powers but still considered it useful for 'peace of mind'. For the majority, the costs of arranging a power of attorney ranged in between £150 and £300. CONCLUSIONS: The study confirms that power of attorney is useful to safeguard interests of people when they lose capacity. Costs remain a big barrier. Further studies are required to understand the long-term impact of providing financial support to arrange a power of attorney at an early stage on reducing delayed discharges in hospitals.

Responding to the financial abuse of people with dementia: a qualitative study of safeguarding experiences in England.

BACKGROUND: The risks of financial exploitation and abuse of people with dementia remain under-researched. Little is known of the views of those responsible for local adult safeguarding systems about prevention and redress. We explore current repertoires of responses of such persons and consider barriers and facilitators to minimizing risks of financial abuse for people with dementia. METHODS: Fifteen qualitative interviews were undertaken with a purposively sampled group of Adult Safeguarding Co-ordinators in England in 2011. Framework analysis delineated themes in the transcripts; these were included in an iteratively developed coding framework. RESULTS: Five themes were explored: (1) incidence of financial abuse; (2) impact of dementia on safeguarding responses; (3) warning signs of financial abuse, including neglect, unpaid bills, limited money for provisions; (4) encouraging preventive measures like direct debit to pay for bills, advance care plans, appointing Lasting Power of Attorney; and (5) barriers and facilitators in safeguarding, including the practice of financial agencies, cultural barriers, other systemic failures and facilitators. Not all systems of financial proxies are viewed as optimally effective but provisions of the Mental Capacity Act 2005 were welcomed and seen as workable. CONCLUSIONS: Healthcare professionals may need to be more alert to the signs and risks of financial abuse in patients with dementia both at early and later stages. Engaging with safeguarding practitioners may facilitate prevention of abuse and effective response to those with substantial assets, but the monitoring of people with dementia needs to be sustained. In addition, professionals need to be alert to new risks from electronic crime. Researchers should consider including financial abuse in studies of elder abuse and neglect.

Requiring use of electronic services by certain claimant representatives. Final rules.

We are revising our rules to require that claimant representatives use our electronic services as they become available on matters for which the representatives request direct fee payment. In the future, we will publish a notice in the Federal Register when we require representatives who request direct fee payment on a matter to use our available electronic services. We are also adding the requirement to use our available electronic services on matters for which the representative requests direct fee payment as an affirmative duty in our representative conduct rules. These revisions reflect the increased use of technology in representatives' business practices. We expect that the use of electronic services will improve our efficiency by allowing us to manage our workloads more effectively. These rules do not require claimants to use our available electronic services directly; they only require their representatives to use the services on matters for which the representatives request direct fee payment.

Utilization of legal and financial services of partners in dementia care study.

Financial and legal services are unique needs of persons with dementia and their caregivers. This study examines their need for legal and financial assistance and the kinds of legal and financial services provided within Partners in Dementia Care, a telephone-based, care coordination and support service intervention delivered through a partnership between Veterans Affairs (VA) medical centers and local Alzheimer's Association chapters. Based on comprehensive assessment, and needs prioritization, care coordinators collaboratively planned action steps (specific behavioral tasks) with each caregiver/person with dementia to address the dyad's identified unmet needs. Results show that 51 (54.8%) of 93 dyads reported a need for legal and financial services. Action steps related to legal and financial need included education or assistance with legal services (27.27%), nonhealth-related financial benefits (32.32%), health-related financial benefits (21.21%), financial management/planning (9.09%), and financial support (10.1%). Comparable numbers of action steps were directed to VA (41.4%) and non-VA (58.6%) services.

Revisions to rules of conduct and standards of responsibility for representatives. Final rules.

We are revising our rules of conduct and standards of responsibility for representatives. These revisions further clarify our expectations regarding representatives' obligations to competently represent their clients and constitute official notice concerning our requirements and procedures. We are also updating other rules about the representation of parties. These changes are necessary because our current regulations are insufficient to address some representative conduct that is inappropriate, but has technically fallen outside the scope of our regulations. These changes will allow us to better protect the integrity of our administrative process, ensure that claimants receive competent and effective representation, and further clarify representatives' responsibilities in their dealings with us and with claimants.

Medical futility: a paradigm as old as Hippocrates.

Medical futility is a concept commonly used to describe medical therapy that has no known or anticipated immediate or long-term benefit for a patient. The concept of futility has existed since the time of Hippocrates and has become the predominant dilemma for many end-of-life situations. Today, clinicians grapple with ethical conflicts and concepts in their daily practice. Many healthcare providers use the concept of medical futility when they are talking with patients and families who are in a quandary about their loved one's care. This article provides an overview of medical futility.