Elder Abuse Ethics for Medical Care Providers
World Elder Abuse Awareness Day 2012 June 11, 2012 The opinions expressed herein are not necessarily the opinions of the District Attorney’s Office. Each and every case is evaluated in light of the facts particular to that case.
Elder Abuse Ethics for Medical Care Providers • Presented by: • Debbie Harrison and • Harold S. Bartholomew, Jr.
Warning! • The following presentation reflects the views of the presenter, and not necessarily the views of the District Attorney’s Office, 22 nd Judicial District, St. Tammany and Washington Parishes. Each case varies based upon changes in factual situations.
Percent of Total Population Age 65 and Over: 1900 to 2000 Source: U. S. Census Bureau, decennial census 1900 to 2000
A growing % of population Source: U. S. Census Bureau
Growing Numbers Source: U. S. Census Bureau.
Elder Protection Laws in Louisiana • A special agency to investigate – Elderly Protective Services • Mandatory Reporting of abuse • Special financial abuse laws for the protection of the infirm
Elder Abuse is a Crime • Louisiana law protects adults aged 60 or older from acts or omissions which result in physical or emotional abuse and neglect, inflicted by caregivers and from selfneglect by an individual. Louisiana law also protects seniors from acts of financial exploitation and extortion.
Financial extortion or exploitation, • • such as theft or misuse of money, property or possessions of the elder.
Exploitation of the infirmed is: • (1) The intentional expenditure, diminution, or use by any person, including a caregiver, of the property or assets of the infirmed, a disabled adult, or an aged person, … without the express voluntary consent of the resident or the consent of a legally authorized representative of an incompetent resident, or by means of fraudulent conduct, practices, or representations.
Exploitation of the infirmed is: • (2) The use of an infirmed person's, or aged person's, or disabled adult's power of attorney or guardianship for one's own profit or advantage by means of fraudulent conduct, practices, or representations. La. R. S. 14: 93. 4
Ethical and Reporting Requirements
Mandatory Reporting • La. R. S. 15: 1504 requires reporting of abuse by ANY PERSON “having cause to believe that an adult's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation shall report in accordance with R. S. 15: 1505. ” • Failure to report is punishable by up to six months imprisonment and/or a five-hundred dollar fine. R. S. 14: 403. 2.
Who do I call? • R. S. 15: 1505. Contents of report and agency to receive report • Report shall be made to any adult protection agency or to any local or state law enforcement agency. • Need not name the persons suspected • Contain, name and address of the adult, the name and address of the person responsible for the care of the adult, if available, and any other pertinent information.
To Contact EPS • • • New Orleans Region Phone: (504) 832 -1644 Toll Free (In-state only): 1 -800 -673 -4673 Fax: (504) 835 -0409 State office Hotline: 800 -259 -4990 • http: //goea. louisiana. gov/index. cfm? md=pagebuilder&tmp= home&pid=5&pnid=2&nid=16
DHH & APS • The Office of Aging and Adult Services (OAAS), Adult Protective Services (APS) DHH as the agency responsible for carrying out the mandate of 14: 403. 2 with regard to adults with disabilities ages 18 -59 • (225) 342 -9057 or (800) 898 -4910 • Fax (225) 342 -9069 • http: //www. dhh. state. la. us/offices/Default. asp? ID=95&Print =1
Long Term Care Ombudsman Program • Phone (225) 342 -7100 Toll Free (866) 632 -0922 • Long Term Care Ombudsmen investigate and resolve complaints made by or on behalf of residents of long-term care facilities. Longterm care facilities include nursing homes, assisted living facilities, and personal care homes that serve individuals age 60 and over. • http: //goea. louisiana. gov/index. cfm? md=page builder&tmp=home&pid=4&pnid=2&nid=15
Investigation • R. S. 15: 1507. Investigation of reports, assessment, actions taken, and court orders • Elderly Protective Services or Dept. Health & Hospitals (fact dependent) shall investigate • Face to face interview with adult • Access to any records or documents, including client-identifying information and medical, psychological, criminal or financial records necessary… • Agency is exempt from payment of fees for records
Mandatory Reporting Licensed Health Care Providers • • • R. S. 40: 2009. 20. Duty to make complaints; penalty; immunity B. (1) Any person who is engaged in the practice of medicine, social services, facility administration, psychological or psychiatric services; or any registered nurse, licensed practical nurse, nurse's aide, personal care attendant, respite worker, physician's assistant, physical therapist, or any other direct caregiver having knowledge that a consumer's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation shall, within twenty-four hours, submit a report to the department (Dept. of Health and Hospitals) or inform the unit or local law enforcement agency of such abuse or neglect. …. (2) Any person who knowingly or willfully violates the provisions of this Section shall be fined not more than five hundred dollars or imprisoned for not more than two months, or both. C. Any person, other than the person alleged to be responsible for the abuse or neglect, reporting pursuant to this Section in good faith shall have immunity from any civil liability… D. All hospitals shall permanently display in a prominent location in their emergency rooms a copy of R. S. 40: 2009. 20. *Older than R. S. 15: 1504.
Individual Duty • While hospitals, and health care related companies may have reporting mechanisms in place • Mandatory reporting applies to • INDIVIDUALS • Reporting to the company does not absolve the individual of responsibility
Does anything prevent reporting? • HIPAA? • Ethics / Scope of Practice?
http: //www. hhs. gov/ocr/privacy/hipaa/faq/disclosures_required_by_law/909. html 5/19/2010
HIPAA • …Where disclosures are required by law, the Privacy Rule’s minimum necessary standard does not apply, since the law requiring the disclosure will establish the limits on what should be disclosed. • Moreover, with respect to required by law disclosures, a covered entity cannot use the Privacy Rule as a reason not to comply with its other legal obligations…. http: //www. hhs. gov/ocr/privacy/hipaa/faq/dis closures_required_by_law/909. html
HIPAA • Section 164. 512(a)(2) provides that in making a “required by law” disclosure about adult abuse, neglect or domestic violence (section 164. 512(c)), for judicial or administrative proceedings (section 164. 512(e)), or for law enforcement purposes (section 164. 512(f)), covered entities must also comply with any additional privacy requirements in these provisions that apply. However, none of the additional procedural protections in sections 164. 512(c), (e) and (f) apply to the type of “required by law” disclosures to P&As under the provisions of the DD and PAIMI Acts discussed here. http: //www. hhs. gov/ocr/privacy/hipaa/faq/disclosures_required_by_law/909. html
• http: //www. nysna. org/practice/positions/position 3_10. htm 5/19/2012
• http: //www. nysna. org/practice/positions/position 3_10. htm on 5/19/2012
• Duties of confidentiality, however, are not absolute and may need to be modified. . . in circumstances of mandatory disclosure. . . 32
Physicians • The AMA recommends that physicians routinely inquire about possible mistreatment of elderly patients, much as they screen for other conditions such as colorectal or breast cancer. • Precisely how to ask has not been determined; however, if the questions raise suspicion of an abusive situation, specific steps need to be taken, as outlined below. … • Elder abuse and neglect: What physicians can and should do, MAHNAZ AHMAD, MS and MARK S. LACHS, MD, MPH* CLEVELAND CLINIC JOURNAL OF MEDICINE VOLUME 69 • NUMBER 10 pg 806 OCTOBER 2002
Dorne E. Rosenblatt, MD, Ph. D Ann Arbor, Mich Downloaded from www. archfammed. com on May 30, 2010
• • • Care of the Aging Patient: From Evidence to Action | August 3, 2011 Elder Abuse and Self-neglect: “I Don't Care Anything About Going to the Doctor, to Be Honest. . ” Laura Mosqueda, MD, Xin. Qi Dong, MD, MPH JAMA. 2011; 306(5): 532 -540. doi: 10. 1001/jama. 2011. 10
Hospitals • JCAHO requires hospitals to have criteria for identifying victims of abuse and neglect. • Hospitals must be able to identify victims of: • • Physical assault • • Rape • • Sexual molestation • • Domestic abuse • • Elder neglect or abuse • • Child neglect or abuse • Health. Stream Regulatory Script, Identifying and Assessing Victims of Abuse and Neglect (CE), Version: [May 2006] 36
• Mandatory Reporting vs. Patient Confidentiality • Reporting requirements can present an ethical conflict for healthcare providers. • The patient may not want the provider to make a report. The patient may expect the provider to protect his or her confidentiality. • The provider, on the other hand, must report. • In this case: • • Explain that the law requires you to report. • • Work to keep a positive relationship with the patient. Bear in mind that the goal is to improve the patients situation, not to punish the patient or his or her family. • Health. Stream Regulatory Script, [Identifying and Assessing Victims of Elder Abuse and Neglect], Version: [May 2005] 37
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Administrators and Physicians • Potential Civil Liability • Potential Criminal Liability • Negligence A duty to inform: delay reporting allegations of child or elder abuse even— for internal investigations—and you could land in jail - Safety & Security Agenda, HR Magazine, September 2003, Diane Cadrain The importance of reporting mistreatment of the elderly American Family Physician, March 1, 2007 by Lisa M. Gibbs, Laura Mosqueda
Immunity • Any person “who in good faith makes a report, cooperates in an investigation by an adult protective agency, or participates in judicial proceedings authorized under the provisions of this Chapter, ” • “shall have immunity from civil or criminal liability that otherwise might be incurred or imposed. …” R. S. 15: 1504
Identification and Recognition of Elder Abuse
The Right Questions • Some of the right questions to ask elderly patients are outlined in "Diagnostic and Treatment Guidelines on Elder Abuse and Neglect, " issued by the AMA in 1993: • Has anyone at home ever hurt you? • Has anyone ever touched you without your consent? • Has anyone ever made you do things you didn't want to do? • Has any one taken anything that was yours without asking? • Has anyone ever scolded or threatened you? • Have you ever signed any document that you didn't understand? • Are you afraid of anyone at home? • Are you alone a lot? • Has anyone ever failed to help you take care of yourself when you needed help?
AMA Guidelines • The guidelines state that the interview and physical exam should be done apart from the patient's caregiver and that doctors who suspect abuse should report it to the authorities. If the patient appears in immediate danger, the doctor should consider putting the patient in the hospital or getting a court order for protection.
http: //www. acep. org/content. aspx? id=30148
Physical indicators • Incontinence with poor personal hygiene, excessive dirt, foul odors, lice or fleas • Alcohol and/or substance abuse • Inadequate or inappropriate clothing • Absence of eyeglasses, hearing aids, prostheses • Repetitive hospital admissions or emergency department visits • Unexplained injuries or explanation inconsistent with medical findings • Torn, stained or bloody underclothing • Difficulty in walking or sitting • Pain, itching, bruising or bleeding in anal or genital area • Unexplained venereal disease or genital infections • An elder's report of being hit, slapped, kicked, or mistreated • An elder's report of being sexually assaulted or raped • Untreated bed sores or decubiti
Behavioral indicators: • Being emotionally upset or agitated • Being extremely withdrawn and noncommunicative or non-responsive • An elder's sudden change in behavior • Fear or hesitancy to talk • Depression and/or anger • Disorientation or confusion • Change in appetite or weight • Isolation and/or resignation • Implausible stories • An elder's report of being verbally or emotionally mistreated.
Other indicators: • • Unexplained inability to pay bills, purchase food or personal items Disparity between income and assets and lifestyle Lack of receptivity by family members or elder person to any necessary assistance requiring money History of alcoholism, drug abuse, mental illness or past abuse in either patient or primary caregiver The elder may not be allowed to speak for himself or be interviewed without the presence of the caretaker Family member or caregiver "blames" the elder, e. g. , accusation that incontinence is a deliberate act Previous history of abuse by a family member or caretaker to others Obvious absence of assistance, indifference or anger by the caretaker toward the elder person • • • Aggressive behavior (threats, insults, harassment) toward the elder Unwillingness or reluctance of family members or caretaker to comply with service providers in planning for care and implementation Conflicting accounts of incidents by the family, caretaker, and victim The caregiver's refusal to allow visitors to see an elder alone Unexplained delays in seeking treatment or a series of missed medical appointments. Desertion of an elder at a hospital, nursing facility, or public location such as a shopping center.
Written Protocols? • Emergency room doctors are also in a unique position especially to spot spouse abuse. The U. S. Dept. of Health and Human Services has vowed as one of its health goals for 2, 000 to insure that at least 90% of the nation's hospital emergency rooms use written protocols for identifying, treating and referring victims of domestic abuse. • COPYRIGHT 1996 U. S. Government Printing Office • COPYRIGHT 2008 Gale, Cengage Learning • http: //findarticles. com/p/articles/mi_m 1000/is_n 367/ai_182 00024/
No one is beyond abuse • • 65. 7% female 42. 8% were over 80 years of age 89. 3% in domestic settings 6. 2% of substantiated reports were in longterm care settings,
Who Are The Perpetrators? • • • 53% of alleged perpetrators were female 75% of alleged perpetrators under 60 Most common relationships adult child 33% other family member 22%
Most Common Forms of Abuse • • Of substantiated reports Self-neglect was the most common 37% Caregiver neglect 20% Financial exploitation 15%
Who’s In Charge? • • • The Elderly Person Is Always In Charge NOT a relative NOT a person with Power of Attorney Only where Committed or Interdicted does this change • The Elderly Person decides who visits them in Hospitals, and otherwise • A Power of Attorney may not isolate
Fiduciary What is a fiduciary? Main Entry: 2 fiduciary Function: adjective Etymology: Latin fiduciarius, from fiducia confidence, trust, from fidere Date: circa 1641 : of, relating to, or involving a confidence or trust: as a : held or founded in trust or confidence b : holding in trust c : depending on public confidence for value or currency <fiduciary fiat money> www. merriam-webster. com/dictionary/fiduciary
Fiduciary CODE TITLE XIV--OF ALEATORY CONTRACTS CODE TITLE XV--OF MANDATE CHAPTER 1. UNIFORM FIDUCIARIES LAW § 3801. Definitions For the purposes of this Chapter, unless the context or subject matter otherwise requires: (2) "Fiduciary" includes a trustee under any trust, expressed, implied, resulting or constructive, executor, administrator, guardian, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent, officer of a corporation, public or private, public officer, or any other persons acting in a fiduciary capacity for any person, trust or estate. (4) "Principal" includes any person to whom a fiduciary as such owes an obligation.
What is a Mandate? • Art. 2989. Mandate defined • A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.
Becoming a Mandatary • Art. 2992. Onerous or gratuitous contract • The contract of mandate may be either onerous or gratuitous. It is gratuitous in the absence of contrary agreement.
Becoming a Mandatary • Art. 2993. Form • The contract of mandate is not required to be in any particular form. • Nevertheless, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form.
Mandatary • C. C. Art. 3001. Mandatary's duty of performance; standard of care • The mandatary is bound to fulfill with prudence and diligence the mandate he has accepted. He is responsible to the principal for the loss that the principal sustains as a result of the mandatary's failure to perform.
Accounting • Art. 3003. Obligation to provide information • At the request of the principal, or when the circumstances so require, the mandatary is bound to provide information and render an account of his performance of the mandate. The mandatary is bound to notify the principal, without delay, of the fulfillment of the mandate.
Some Types of Elder Abuse • According to the Mayo Clinic elder abuse can take many forms, these include: • Physical abuse. • Sexual abuse. • Emotional or Psychological Abuse. • Neglect • Abandonment • Financial or Material Exploitation • Self-neglect
Physical Abuse • • • Looks like child abuse Slapped Punched Tied up Cigarette burns
Physical Signs of Abuse • The following slides in blue are from a powerpoint provided by the New York City Elder Abuse Training Project. Powerpoints and more available at their web site.
Bruises Healing Stages 10 hrs 4 -5 days 12 days
Sites of Bruising • In abuse victims, most often seen on – Knuckles and fingers – Face and neck – Chest wall – Abdomen – Buttocks – Palms and soles of feet
Bruising Distribution and Patterns Medial Surfaces Face & Neck
Bruising Patterns • Bilateral • Different colors ranging from purple (recent) to yellow green (older) • Shape and Pattern • Facial distribution
Morphological Signs • Bruises or burns shaped like an object – Iron – Curling iron – Belt marks – Fingers – Cigarette burns – Rope burns (e. g. , resulting from restraints)
Other markers • Burns: – In healthy adults: rare – In the frail elderly: rare in institutional settings – 70% of all burns are the result of abuse/neglect • Symptoms Similar to shaken baby syndrome • Ruptured eardrums – Boxing the victim’s ears • Changes in hairstyle – Cover up for • Hair that may have been ripped out • Bruises
Decubitus Ulcers Bed sore • Immobility • Skin over bony surfaces • Vasculature compression • Vascular insufficiency • Tissue necrosis • Inflammation • Infection • Sepsis • Shock
Skin Ulcers in Diabetic with Severe Vascular Insufficiency General Condition • Edges • Centers • Smell • Surrounding Skin
Sexual Abuse • RS 14: 93. 5 Sexual Battery of the Infirm • (1) The offender compels the victim, who is physically incapable of preventing the act because of advanced age or physical infirmity, to submit by placing the victim in fear of receiving bodily harm. … • (4) The victim is incapable, through unsoundness of mind, whether temporary or permanent, of understanding the nature of the act, and the offender knew or should have known of the victim's incapacity. • B. … "sexual acts" mean the following: • (1) touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or • (2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim. • D. …not more than ten years.
Emotional or Psychological Abuse • infliction of anguish, pain, or distress through verbal or nonverbal acts. • verbal assaults, insults, threats, intimidation, humiliation, and harassment. • treating an older person like an infant; • isolating an elderly person from his/her family, friends, or regular activities; • giving an older person the "silent treatment; " and • enforced social isolation
Neglect • La. R. S. 15: 1503 • “(10) "Neglect" means the failure, by a caregiver responsible for an adult's care or by other parties, to provide the proper or necessary support or medical, surgical, or any other care necessary for his well-being. No adult who is being provided treatment in accordance with a recognized religious method of healing in lieu of medical treatment shall for that reason alone be considered to be neglected or abused. "
Neglect at Home • Ms. Scott was found on a sofa soaked in urine and feces. • Ambulance workers noted that Ms. Scott was very sick and, after some resistance from her, she was transported…. • After cleaning Ms. Scott from "head to toe, " emergency room personnel determined that she was in serious or critical condition with numerous decubitus ulcers (bedsores) and a large, fresh wound on her leg. • Emergency room personnel contacted the Monroe Police Department and made a complaint of suspected elder abuse. State v. Smith, No. 38, 154 -KA (La. App. 4/14/2004) (La. App. , 2004)
Abandonment • La. R. S. 15: 1503 defines abandonment as • “(1) "Abandonment" means the desertion or willful forsaking of an adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody. "
Financial Elder Abuse is………… • • A Crime Going unpunished Predictable Causing this country significant economic harm • Apparently where child abuse & DV were 30 years ago • Escalating
Elderly have the money
Exploitation • La. R. S. 15: 1503 defines exploitation as • " (7) "Exploitation" means the illegal or improper use or management of an aged person's or disabled adult's funds, assets, or property, or the use of an aged person's or disabled adult's power of attorney or guardianship for one's own profit or advantage. "
Caregiver Fraud • “The victim was 78 years old, legally blind and suffering from lung cancer at the time. During the abovementioned seven-month period, defendant wrote checks to herself from Henderson's bank account. …induced Henderson to sign some of the instruments and forged Henderson's signatures on others. • …defendant had used Henderson's credit card to charge …in excess of $9, 900. The estimated losses the elderly victim realized as a result of defendant's actions were over $18, 000. ” State v. Ebarb, 772 So. 2 d 299 (La. App. , 2000)
Self Neglect • La. R. S. 15: 1503 defines self neglect as • " (12) "Self-neglect" means the failure, either by the adult's action or inaction, to provide the proper or necessary support or medical, surgical, or any other care necessary for his own well-being. No adult who is being provided treatment in accordance with a recognized religious method of healing in lieu of medical treatment shall for that reason alone be considered to be self-neglected. “
Role of Elderly Protective Services and Law Enforcement
Investigation • R. S. 15: 1507. Investigation of reports, assessment, actions taken, and court orders • Elderly Protective Services or Dept. Health & Hospitals (fact dependent) shall investigate • Face to face interview with adult • Access to any records or documents, including client-identifying information and medical, psychological, criminal or financial records necessary… • Agency is exempt from payment of fees for records
• The following slides on what EPS does and does not do are taken from the presentation of Ms. Lutricia Mc. Donald done at the St. Tammany SALT sponsored World Elder Abuse Day Seminar in June 2009. Please see her entire presentation available on the St. Tammany SALT web site.
What EPS Does: • Locate and refer individuals to community agencies and facilities that offer the services they need. When necessary, advocate ( that is recommend, support and /or defend their rights. )
What EPS Does: • Provide short-term, limited , case management services. That is monitor the case for stability • Work with law enforcement to provide protection
What EPS Does: • Work with the judiciary system to remedy problems that require legal action from the D. A. or Judge when legal intervention is warranted. Methods of Legal intervention are
What EPS Does: • Order to Enter Home • Interdiction - full/limited • Order for Injunctive Relief- – Restraining Order
What EPS Does: • Order for Mandatory Counseling • Order for Medical/Psychiatric/Psychological Evaluation • Power of Attorney • Admission by Emergency Certificate • Order for Protective Custody
What EPS Does: • Judicial Commitment • Protective Service Order- temporary custody by EPS to place elder in a protected environment until a more permanent solution can be arranged. • Provide information and referral service to individuals who do not meet the criteria for elderly protective services.
What EPS does not do: • EPS does not remove elders from their homes against their will unless it is determined that they are a danger to themselves or others. If this is determined, our office request an Order for Protective Custody from the Coroner or a District Judge and if granted, the elder is transported by a law enforcement officer to a facility for evaluation and/or treatment.
What EPS does not do: • EPS does not force nursing home placement unless a doctor/psychiatrist determines that the elder is no longer mentally capable of making decisions, there is no family member/s available or willing or capable of caring for the elder and a court of law deems the elder incapable of caring for themselves or having the mental capacity to know.
What EPS does not do: • EPS does not provide discharge planning for medical or other facilities.
What EPS does not do: • EPS does not provide crisis intervention on an emergency basis. • Not on 24 hour call.
Law Enforcement • Law Enforcement may receive calls from EPS, DHH, other government agencies, nursing homes, social workers, physicians, or private individuals. • There are many special laws protecting the elderly.
Multiple criminal statutes apply specifically to elderly victims • 14: 35. 2 Simple battery of the infirm. Minimum 30 days • 14: 42 Aggravated Rape.
Multiple criminal statutes apply specifically to elderly victims • 14: 50. 2 Perpetration or attempted perpetration of certain crimes of violence against a victim sixty-five years of age or older. Adds 3 years to maximum, at court’s discretion. . • 14: 67. 16 C. (1) (b) Identity theft. If victim 60 years of age or older, minimum goes from 0 years to 2 years.
Multiple criminal statutes apply specifically to elderly victims • 14: 67. 21 Theft of assets of aged person, • 14: 93. 3 Cruelty to the infirmed,
Multiple criminal statutes apply specifically to elderly victims • 14: 93. 4 Exploitation of the infirmed, • 14: 93. 5 Sexual battery of the infirm, •
A Note on Visitors • • • The Elderly Person Is Always In Charge Of Visitors NOT a relative NOT a person with Power of Attorney Only where Committed or Interdicted does this change
Can I Look Up The Law? • Yes! • The Louisiana Legislature web site has a searchable database of current law at: http: //www. legis. state. la. us/
Q & A • Practical Problems • Your Turn!
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