Informed consent is a central concept of present-day medical ethics. It is the process by which a patient receives all pertinent information necessary to make a rational autonomous choice. The main prerequisites for giving informed consent for or informed refusal of treatment are adequate patient decision-making capacity and disclosure by the doctor of information about the proposed treatment, the alternative care options and the expected consequences or side-effects [2, 15]. After being given correct and complete information, a patient is thought to be able to give informed consent if he/she can receive, can process and understand the information provided, can comprehend and appreciate the nature and consequences of a choice, can communicate that choice and can make a stable and coherent decision consistent with previously expressed goals and life values [15, 16].

To obtain informed consent in the ED is quite a challenge, as many patients may not be capable of making decisions due to an acute life-threatening condition, intoxication, language barriers or other impairments. The EP has the unconditional duty to protect patients from inappropriate health-care decisions and has been the most appropriate person to make decisions in the patient’s best interests [17]. At the same time, the EP should keep in mind that the basis for all medical decisions is the presence of a meaningful medical indication for the intended diagnostic or therapeutic intervention . In most cases, both written and verbal information must be presented appropriately with opportunities for the ED personnel to repeat and clarify the content.

Patient refusal of indicated medical treatment, especially when the treatment would be life sustaining, presents EPs with the responsibility of determining whether the patient has the capacity to refuse treatment and whether the patient’s refusal is informed. As at any age, older adults with decision-making capacity have the right to refuse treatment, even if such refusal hastens or results in their death. It is not necessarily irrational for old patients with decision-making capacity to refuse unwanted medical interventions, even if the EPs consider that the refusal for an intervention is wrong [18]. Doctors have the duty to respect patient autonomy, which is the ethical principle that underlies informed consent. It is their responsibility to assure that the patient can meaningfully participate in the decisions and can consent voluntarily without coercion.

The assessment of an aged person’s competency in decision-making about consent to treatment is a common ethical dilemma facing the emergency physician. It is a dilemma often precipitated by patient’s vulnerability from the stress of illness, pain, anxiety, fear and the strange environment of the ED or age-related changes such as pre-existing cognitive or mobility impairments, sensory deficits in hearing and vision or impaired ability to ask a question, as well as insufficient social support [18]. It is estimated that acute changes in the mental status, such as delirium described in approximately 10% of frail older subjects visiting an ED, make impossible the requirement for informed consent [19].

When an older patient’s wishes are unknown or unclear, the patient is unable to weigh up the information and to make a decision on treatment or the ramifications of a decision are serious, then surrogate decision-making may be used. Furthermore, the assistance of advanced directives, if available, information given by relatives, proxies or close friends or a third party such as another clinician may be valuable in discerning the most appropriate action [15]. However, if a surrogate or an advance directive is not available, consent should be presumed [18]. In such situations, when an immediate intervention is necessary to prevent death or serious harm to the patient and the necessary care must be provided instantly, informed consent does not become the first ethical priority [4]. Nevertheless, it does not mean that in other ED situations, respect for autonomy should not be taken into account. It has been reported that among ED patients, those judged capable of participating have a strong desire for autonomy in medical decision-making regardless of their acuity of illness. However, old age, as well as a lesser level of formal education, is correlated with a decreasing desire for decision-making autonomy [20].

Informed consent is a moral as well as a legal obligation of physicians in most countries. In the UK, the recent law about informed consent requires a doctor to take “reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments” [21]. What is important for the EP is that this law now obliges “even those doctors who have less skill or inclination for communication, or who are more hurried, to pause and engage in the discussion”. However, the UK law recognises three exceptions to the duty to disclose. Firstly, the patient might tell the doctor that he/she would prefer not to know the risks. Secondly, the doctor reasonably considers that telling the patient specific information would cause serious harm to the patient’s health. Thirdly, no consent is needed in circumstances of necessity, such as when a patient in need of urgent treatment is unconscious or lacks capacity [21].

The fundamental objective of any physician–patient communication is to improve the quality of care and patient’s health outcomes. Effective communication with patients, particularly the older ones, in the ED is central to informed consent and a necessary condition for difficult decision-making. It creates a good interpersonal relationship for the exchange of information and treatment-related decisions. Good physician–patient communication may help regulate patients’ emotions, facilitate comprehension of medical information and allow for better identification of patients’ needs, perceptions and expectations [22]. Concerns are elicited and explored, and explanations of treatment options are balanced and understood. Successful information is characterised by being clear, complete, accurate, timely and requiring verification from the parties involved.

EPs should pay particular attention to how they communicate with older patients and should try to understand non-verbal cues if the patient is unable to talk. Their duty is to treat these patients politely and considerately, to listen to and respect their views and to give them information in a way that they can understand and accept their right to be fully involved in decisions about their care. Verifying what has been communicated is important to the process with a need to ensure that the meaning of the sent message is understood and mutually agreed upon.

EPs often have to decide quickly whether their patients lack decision-making capacity. This needs a sound clinical judgement and the competency to assess an older patient’s decision-making capacity, which differs from a simple mental status examination. A brief screening testing such as the MMSE is inadequate for determining capacity except at the extremes of the score [23]. EPs should be absolutely certain that an older patient, who refuses a low risk, yet life-saving intervention, has the ability to make rational decisions [18]. Disagreement with the doctor’s recommendation is not by itself reason for determining that the patient is incapable of making a decision [24] nor does cognitive impairment automatically constitute incapacity.

Commonly doctors tend to overestimate their abilities in communication. Significant miscommunication may result in patients’ misunderstanding of their prognosis, purpose of care, expectations and involvement in treatment [22]. To avoid miscommunications, improve physician–patient communication and provide optimal patient care, good communication skills must be developed by formal training of health-care personnel and maintained with conscious effort and periodic review. Direct observation, video recording and focus group discussions offer a structured approach for analysing and giving feedback on doctors’ communication performance that encourages subsequent reflection and self-directed learning. A careful selection of challenging patients may maximise the benefit of direct observation and feedback. Alternative methods of teaching communication skills include role play and tape recording of consultations or standardised patients, as well as standardised videos using scenarios in breaking bad news to patients, a complex and challenging communication task in the practice of medicine [25].

Good communication skills are an essential component of the physician–patient relationship. Examples of skilful communication are attentive listening skills, empathy and the use of open-ended questions [22]. ED personnel should try to improve ways of communication with older patients by identifying and implementing interventions that could support communication in the emergency setting. Experience alone does not necessarily lead to good communication skills. Surveys have shown that the physician–patient relationship often causes considerable stress and anxiety because of the lack of confidence and competence in communicating well, particularly in the ED, where doctors are required to deal with a case mix relatively new to them [25].

Advance directives (ADs) , also known as advance statements or advance decisions, are refusals of consent given much earlier by individuals, in case these individuals will lack decision-making capacity when the occasion arises [26]. An advance directive may be a written document, a witnessed oral statement or a note in the patient’s records following a discussion with a health-care professional. They usually take two different forms, which are not necessarily exclusive of each other. The living wills are written documents designed to allow people to express their preferences regarding the provision or the withholding of specified treatments, in the event they become unable to make decisions in the future. The lasting (or durable) power of attorney for health care allows individuals to appoint someone as a “health-care proxy” (e.g. a trusted relative or friend) to make health-care decisions on their behalf once they lose the ability to do so [27]. An AD made by a competent adult is binding under common law in many countries without their family or health-care professionals having to predict what their best interests are and to take critical decisions [14]. Advance directives are not limited to patient’s “wishes” but also include patient’s “goals and values” [27].

Advance care planning (ACP) and advance directives have become increasingly important by the growing value attached to the principle of respect for patient autonomy in health-care decision-making, and by giving patients some control over their future treatment [28]. They are very important documents for older adults, who are more likely than younger people, to develop later impaired decision-making capacity. The ADs promote patient autonomy, as they allow patients to protect their best interests and maintain control over what happens to them by refusing certain treatments in advance [18, 29]. For end-of-life care, ADs have been frequently cited as important tools for communicating patient desires [30]. Although advance directives can be helpful, studies have shown that more than 70% of older and acutely ill patients, who had expressed a clear preference regarding resuscitation, said that if they did become incapacitated, they would want the family and physician to make the resuscitation decisions rather than having their own AD followed [31]. Yet the level of agreement between the surrogate’s decision and the patient’s preference in real and hypothetical seriously ill patients’ scenarios was only 68% in a meta-analysis of 16 studies analysing this outcome [32].

A potential limitation of advance directives is the possible changes in patients’ preferences over time or circumstance. People often accommodate to disabilities, and an old living will may become inconsistent with the patient’s revised views about the quality of life or other outcomes. It is evident that living wills cannot cover all conceivable end-of-life decisions [27]. Some ADs are written to apply only in particular clinical situations, such as when the patient has a terminal condition or an incurable illness, or to prohibit specific interventions, such as blood transfusions or cardiopulmonary resuscitation (CPR), in specified clinical contexts. However, there is too much variability in clinical decision-making to make an all-encompassing living will possible. Persons, who have written or are considering writing advance directives, should be made aware of the fact that these documents are insufficient to ensure that all decisions regarding care at the end of life will be made in accordance with their written wishes. Furthermore, the legal status of advance directives varies considerably among the European countries based on the diverse legal, sociocultural, religious and philosophical traditions of each society, while in several others, there is still a reluctance to legislate in this field [27, 33].

Advance directives must meet three criteria: existence, validity and applicability, each with its own potential problems. In emergency situations, the existence of ADs is most relevant as it might not be clear whether it exists at all. If there is no clear indication that an AD exists, doctors must not delay emergency interventions or resuscitation while trying to establish whether an AD exists that prohibits the particular intervention [27]. If on the other hand an AD exists, the EP must assess its applicability to the current condition of the patient [17]. Furthermore, ADs often do not take into account acute but potentially reversible events that frequently arise in emergency care. In these cases, it is important not to focus on the specific statements of the AD but on the intentions behind it considering the personal values and goals of the patient. To enable a decision honouring the wish of the patient, the EP should obtain information from family, friends, carers and patient’s charts [3]. However, an AD, even if correctly executed and appropriately activated, cannot compel individual clinicians to act in a way which is not in keeping with their own moral codes. Under these circumstances, a second opinion or referral to another service may be required.

Futility in medicine is an ancient concept. The Hippocratic treatise The Art clearly states that physicians should “refuse to treat those who are overmastered by their disease, realising that in such cases medicine is powerless” and “rightly refuse to undertake obstinate cases” [35a,b]. Although the concept of futile medical treatment is controversial, it generally means that treatment is useless and ineffective, or unlikely to provide any significant or meaningful medical benefit to the patient, or it does not offer a reasonable chance of survival [36]. The World Medical Association defines futile medical treatment as a treatment that “offers no reasonable hope of recovery or improvement” or from which “the patient is permanently unable to experience any benefit” [37]. The term futility covers many situations of predicted unlikely outcomes, improbable success and unacceptable benefit–burden ratio. A judgement of futility may be based on a probabilistic prediction of failure or on something closer to a medical certainty. If an older patient has a 1% chance of surviving an arduous and painful regimen, some doctors may call this procedure futile. This is considered a value judgement combined with a scientific one [8e]. The difficulty in determining futile treatment arises in the context of the prognosis of the quality of life.

Two kinds of medical futility are distinguished. Quantitative futility, when the likelihood that an intervention will benefit the patient is exceedingly poor, and qualitative futility, when the likelihood of benefit produced by an intervention is exceedingly poor [8e]. It is therefore important for the doctor to assess the “overall benefit” to the patient, taking into account according to the Council of Europe “not only the results of the treatment of the illness or the symptoms, but also the patient’s quality of life and psychological and spiritual well-being” [38]. For example, qualitative futility refers to patients who have survived resuscitation with a high likelihood of harm related to the resuscitation efforts and are likely to spend their last hours or days in an intensive care unit, therefore prolonging suffering without reversing the underlying disease [39]. It is important that futility as a non-beneficial treatment is distinguished from rationing, which is the fair distribution of beneficial but limited resources [10].

Medical futility as the ineffectiveness of an intervention has the greatest ethical consensus and most utility in emergency medicine. EPs have the expertise and obligation to assess each case individually so as to determine whether the treatment would be beneficial. However, when treating the most critical patients, EPs only rarely have enough information to make a judgement that an intervention would be futile. They must intervene quickly, with only limited information about their patients’ past medical history and wishes, trying to save a life. Only later, when relatives arrive or medical records become available, they may discover that the patient has a terminal disease or did not want resuscitative efforts. Yet, because of the limited information available when the patient arrives in the ED, the mandate to attempt resuscitation is morally justifiable [24].

Futility is essentially a purely medical decision [8e]. Doctors must provide information about the likely chances of success or failure of an intervention but have neither the obligation nor the justification to provide clinically inappropriate medical care and to perform medical interventions they judge that are futile or lacking the likelihood of benefit to their patients. The patients and their families have no right to request futile, clinically inappropriate treatments [40]. Beauchamp and Childress point out that “respect for the autonomy of patients is not a trump that allows them alone to determine whether a required treatment is futile” [8e]. By instituting futile treatments, the medical team falsely offers hope to the family and patient that undermines the patient’s ability for rational judgement and autonomy. However, doctors should discuss with their patients their condition, values, goals and hopes in life in order to arrive at a shared and mutual decision [40]. They should explain to older patients with life-threatening illnesses and their family that they do not want to expose the patients to interventions that are not likely to be beneficial and instead are potentially harmful. It is essential to describe in a compassionate but unambiguous way the risks and benefits of the intervention and that the futility concept is not used to deny care to these patients. Even terminal patients have medical emergencies that require intervention. The goal is to ease pain and suffering, depending on the patient, the medical condition causing discomfort and the value system of the patient [24].

The withholding and the withdrawing of life-prolonging treatmen t refer to the process by which medical interventions are either not provided or are removed from patients as futile. The withholding and withdrawing of life-prolonging therapies, such as mechanical ventilation or artificial nutrition, are ethically and medically appropriate in certain circumstances, when the treatment no longer provides a clear health benefit to the patient [41, 42], such as to cure (if possible), to palliate symptoms, to prevent disease or their complications and to improve functional status [43]. The remarkable medical progress in supportive therapies that enables organ functions to be maintained while a patient recovers from a serious illness should not be abused to sustain indefinitely “life” that is without quality or meaning. Indeed, this goes against all four ethical principles [44].

In emergency medical care, there is a fundamental moral difference between withholding and withdrawing of life-prolonging medical treatment. In this setting, the withholding of critical interventions started in the first few minutes of emergency care is much more problematic, than later withdrawal of unwanted or useless interventions, when more information is known. The justification for this difference stems from three reasons. First, in emergency situations, it is always necessary to start life-sustaining treatment first and then to review this when enough information is available, more experienced opinion is on hand, there is an evolution of the clinical state or there is new light from investigations carried out. Second, in the ED setting, patients and their families have high expectations from EPs to initiate resuscitative care, expectations that complicate any proposed nontreatment. Third, these actions in the emergency setting have a high emotional impact. Resuscitative efforts, once begun, can be withdrawn if evidence emerges that resuscitation is only prolonging an imminent death or that the patient did not want these efforts to take place [24].

In the last decades, the proportion of older people, considered in discussions about withholding and withdrawing life-prolonging treatment, is increasing. Withholding treatment from an older person of whatever age simply because he/she is old is both morally and legally impermissible. Such treatment should not be withheld or withdrawn on the basis of patients’ age alone or their quality of life. Decisions need to be made on an individual basis by clear, robust and transparent procedures [41]. Older competent patients should be encouraged to participate in decision-making, taking into consideration their preferences, beliefs and wishes and having ensured that a reversible illness that impacts on decision-making, such as delirium, sensory impairment, pain and tiredness, is treated [45]. In the case of incompetent patients, such decisions should be made in their best interests having consulted (within the limits of confidentiality) friends, family, carers and advance care planning [45]. Decisions to withhold treatment should be made by experienced senior personnel after careful assessment of the benefits, risks and burdens of treatment based on the best available qualitative information [41].

Decisions to withdraw or withhold life-prolonging medical treatment are among the most difficult a doctor can make in the face of prognostic uncertainty. Decisions must be made on a case-by-case basis, keeping in mind that each case is unique, while age or race must never be used to qualify these decisions. Also withholding specific medical care from older patients because of financial motives is not acceptable. However, it has been argued that it may be appropriate to consider the overall costs and potential benefits to the individual patient, the family and the society [46]. EPs must use their best judgement to ensure good medical practice and evidence-based decision-making to underline decisions about life-sustaining treatment for an older patient.

Withholding or withdrawing life-prolonging futile medical interventions helps an already dying patient to achieve a peaceful and dignified death and must be distinguished from euthanasia and physician-assisted suicide. The primary goal of withdrawing life-prolonging treatment is not to bring about the death of the patient but not to prolong unnecessary suffering and death as a result of medical intervention. When certain interventions are withheld, special efforts should be made to maintain effective communication, comfort, support and counselling for the patient, family and friends [47]. Withholding or withdrawing life-prolonging treatment does not imply that the patient will receive no care. It should be clarified to patients and their families that it is a change in focus towards palliative care with the alleviation of suffering and of distressing symptoms and with supportive measures that ensure that the rest of the patient’s life is as comfortable as possible. It is essential that these discussions are recorded in the medical records.

Patient confidentiality is an important element of the physician–patient relationship since the Hippocratic Oath when the oath taker vowed that “whatsoever I shall see or hear in the course of my profession … I will never divulge, holding such things to be holy secrets” [48]. In health care, the term confidentiality refers to the protection of patient information from unauthorised disclosure to anyone not directly involved in the patient’s care and treatment [50, 51]. Doctor’s confidentiality is a promise rooted in tradition, law and medical ethics and an essential element of the patient’s right to autonomy and the physician’s duty to “do good”. It is part of the personal contract between the physician and the patient and the keystone of medical as well as emergency care [50]. EPs by protecting the privacy of their patients and the confidentiality of patient information they respect the principle of beneficence [2]. A therapeutic alliance should exist between the emergency physician and the patient. There should be fidelity, trust, confidentiality and protection from intended harm. The patients’ health and even their lives could easily be at stake without the premise of the confidential relationship. However, there may be times when this bond has to be broken when the need for confidentiality may conflict with the need to protect other members of society [52].