In 1962, the Journal of law and Contemporary Problems devoted its entire winter issue to aging. The remarkable thing about that issue was that it had only one article that dealt with legal questions—and that with tax treatment of the elderly. The remainder of the issue contained articles dealing with the demographic and sociological characteristics of the elderly, currently held views and theories of aging and human development, and some special concerns from other disciplines like geriatric psychiatry.

In less than a generation, old age and the law has evolved into a field of study of consuming interest to legal scholars, practitioners, sociologists, and consumers. The Chicago-Kent Law Library established a special catalog of the law and aging in 1983. By 1987 (the year in which the last entries were made for the collection), the catalog had grown to over 500 pages. Earlier (1982) the Southern Culifornia Law Review published a similar catalog which was updated in 1984 and 1987.

Physicians frequently are asked to assess whether a patient has the capacity to make informed decisions about his or her medical care. Such assessments may be difficult and controversial. There are few explicit legal standards for judging competency to make medical decisions. Furthermore, clinical practices for evaluating decision-making capacity are problematic. The following case illustrates some of these problems.

Mrs. C., a 74 year old widow with congestive heart failure, angina pectoris, and mild dementia, has been admitted to the hospital for shortness of breath and chest pain. In the past three years she has suffered two heart attacks. During the past two months, her symptoms have worsened despite several medications, including maximally tolerated doses of diltiazem, furosemide and enalapril. She now develops shortness of breath and chest pain when walking one block. Because there are no other medical treatments for her condition, her physician recommends angioplasty or bypass surgery in order to ameliorate her symptoms.

In the United States we prize our freedom as individuals to make our own decisions, however unwise they might seem to others. This devotion to the principle of autonomy (from the Greek “autos” meaning self and “nomos” meaning rule) is obvious in our legal system as well as in a variety of social rules and customs that govern our daily lives.

Difficulties arise, however, when we lose, either temporarily or permanently, the capacity to make our own decisions. Ideally we would have planned ahead for possible incapacity in order to retain control over the future course of our lives. Unfortunately the ideal situation rarely exists. Most of us avoid anticipating the possibility of our own incapacity, and by implication, loss of control. Until recently attention has not been paid to developing and supplying accessible and understandable information about advance directives that could assist us in such planning. And most of us still prefer (or at least resort to) informal, often uninformed, family decision-making arrangements.

In recent years, there has been a slow but dramatic change in society's attitudes toward persons with disabilities—an evolution away from traditional paternalistic approaches which foster dependency, toward policies focused on maximizing the potential for autonomy and independence among individuals of limited capacity. This change is clearly reflected in efforts across the country to revise state guardianship statutes. This article analyzes significant trends in these reform efforts, and highlights important practice implications for physicians and attorneys whose practices include serving persons who are limited in their capacity to make informed decisions.

The home setting presents particular problems in assessing a client/patient's ability to refuse suggested medical care. Home is familiar; it is associated with relaxation and not with the mobilization required to combar anxiety, uncertainty, illness and pain. In the home family members may be overly involved or controlling. Especially in the situation of elderly siblings with long combined histories, there may be shared peculiarities or even shared personaliry disorders which complicate an individual's choice of care. The home, because it is familiar, may maximize patient orientation but may also support denial of illness; the patient/client may reason “If I'm home, I'm really not ill.” In contrast, hospitals and long-term care facilities are intimidating and infantilizing institutions that tend to undercut personal resolve and challenge denial.

The increasing life expectancy and increasing proportion of the population over the age of 65 in most developing countries are both unprecedented demographic phenomena. In the United States, life expectancy has increased more in the last century than in all previous recorded history. Even in the last 20 years, there have continued to he unexpected and largely unexplainable declines in mortality rates leading to increasing numbers of people living beyond even the ages of 85, 90 or 100. It is not surprising, then, that there is a great interest in studies of aging among researchers in social science and policy studies. Further, since aging is generally associated with an increased risk of medical illness and declining function, research has been stimulated in many different health-related areas, such as clinical disease, basic molecular causes of aging, and health services research.

Health, Health Care, and the Elderly

Health means different things to different people, but all people want access to essential health care services of high quality—not too much (the likelihood of benefit should outweigh the likelihood of harm), not too little (necessary and appropriate services must be available, and equitably so), and of a satisfactory technical and interpersonal character. The object of organized quality assurance programs in the private and the public sectors is to ensure that practitioners and institutions deliver care of high caliber.

Many developments in health care are drawing attention to its quality. Health care costs conrinue to rise, both for the elderly out-of-pocket and for the Medicare program. In 1987, health care expenditures stood at $500.3 billion, or 11.1 percent of the nation's gross national product, and will be an estimated $647 billion in 1990.

Entering a nursing home involves a significant loss of personal autonomy. Whether the resident or someone else, such as a court or conservator, makes the decision, personal freedom becomes subject to rules, policies and practices that often seem to favor the convenience of the facility over the autonomy of the resident. The previously independent resident may now find that a “financial guarantor” must co-sign the admission agreement and a staff nutritionist decide what the resident will eat.

As the impact of nursing home care on individual autonomy becomes more apparent, greater attention has focused on the rights of nursing home residents. Many of those rights derive from the admissions agreement signed when the resident enters the facility. While theoretically subject to negotiation, the boilerplate contracts used by most nursing homes subject the consumer to undeniable coercion in making an important consumer choice.

The routine use of chemical and physical restraints in nursing homes is bad care. Medical and nursing literature on the care of nursing home patients consistently criticizes the use of restraints when that use is unrelated to diagnosis and treatment considerations. Federal and state laws have included restrictions on the use of restraints for some time. The criticisms of inappropriate and indiscriminate use of chemical and physical restraints are not new. What, then, supports their continued misuse despite the ordinarily powerful combination of professional and governmental approbation?

The use of restraints responds to generally quite acceptable and desirable patient-oriented goals. Restraints are used in an attempt to protect the patient with physical or mental disabilities from avoidable injury caused by falling or wandering away from the facility. In the social context of nursing homes, restraints are also used to protect residents from injury by threatening, violent patients. When the rationale is measured against the known effects of restraints, however, the self-evident nature of the justification begins to break down.

The routine use of chemical and physical restraints in nursing homes is bad care. Medical and nursing literature on the care of nursing home patients consistently criticizes the use of restraints when that use is unrelated to diagnosis and treatment considerations. Federal and state laws have included restrictions on the use of restraints for some time. The criticisms of inappropriate and indiscriminate use of chemical and physical restraints are not new. What, then, supports their continued misuse despite the ordinarily powerful combination of professional and governmental approbation?

The use of restraints responds to generally quite acceptable and desirable patient-oriented goals. Restraints are used in an attempt to protect the patient with physical or mental disabilities from avoidable injury caused by falling or wandering away from the facility. In the social context of nursing homes, restraints are also used to protect residents from injury by threatening, violent patients. When the rationale is measured against the known effects of restraints, however, the self-evident nature of the justification begins to break down.

The 1980s have witnessed mounting concern among older adults and policy makers about the ability of people to maintain control over health care decisions in later life. Laws authorizing living wills, durable powers of attorney, and family consent for incompetent patients have proliferated throughout the states. Even the United States Supreme Court finally entered the arena as it pondered the fate of Nancy Cruzan in the face of Missouri's refusal to authorize the withdrawal of the nasogastric tubes which keep her alive. The challenge of translating personal autonomy in health care into legal rights has captured the attention of legislators and courts alike. What began as an isolated decision in the Quinlan case in 1976 has become a torrent of lawmaking action by 1990.

Staying in control of health care arrangements in later life, however, embraces much more than refusing or terminating life-sustaining treatment. Mechanisms for financing health care services often determine the quality of the older person's life and the extent to which the individual retains autonomy over the myriad details of daily life.

Health care for the elderly, already a major social concern in the United States, is fated to become even more dominant on our social, political, and legal agendas. The effect on the nursing home industry and nursing home law will border on the revolutionary.

In a review of the “prospects for an ageing population,” Jacob Brody observed that:

A report of the Congressional Office of Technology Assessment (OTA) notes the same trend and gives a sense of the numbers involved: