Tests commonly used to screen for dementia, such as the MMSE, are useful but are not sensitive to the earliest manifestations of cognitive loss.[11] In particular, diminished executive functioning—a set of capacities generally dependent on frontal lobe function—is more directly related to impaired decision making and vulnerability to abuse and specifically financial abuse but is not identified by the MMSE.[12] It may be appropriate to refer the patient to a geriatric forensic mental health specialist for further evaluation.

Combating elder abuse

Requirements to report elder abuse are essentially universal in the United States, although definitions and specifics vary. Clinicians are advised to learn the requirements applicable in their jurisdiction. Specific definitions and obligations may also change from time to time. The physician can learn details from appropriate governmental bodies, professional societies, and/or malpractice carriers, as well as from institutions where one practices. Reporting can usually be done confidentially, although the source can often be surmised, with consequences for ongoing relationships.

Different practice settings may bring different resources or specific responsibilities. For example, abuse in nursing home settings has been extensively documented and more carefully studied than in other residential settings for vulnerable elders (including assisted living, smaller board and care homes, and, increasingly, home care settings).[13] Physicians, and especially medical directors, need to be aware of the potential vulnerability for elder abuse in each setting, and the variable reporting, documentation, and administration
responsibilities.[14-16]

Office staff should be trained to be aware of elder abuse. They need be sensitive to clues that suggest abuse during their interactions with elderly patients or their caregivers (eg, when scheduling or cancelling appointments, during office visits, or from phone contacts and messages). An odd request for medication is one such clue: an elderly parent may be coerced into asking for pain medications to support his child’s or caregiver’s drug habit. Clinicians (and office staff) should be alert to signals that indicate vulnerability, and procedures should be in place whereby staff can share their concerns with the physician.

As in other areas, the quality, clarity, and completeness of the medical record is paramount. Certainly this is true if any issue were to be made about neglect or poor quality of care in the practice. Any clinician who must testify based on his own record will come to value the effort required to record observations carefully and thoroughly. Documenting the serial use of standard mental function tests can be very valuable as well (eg, in a postmortem challenge to a will).

The physician’s responsibility

Care and attention are advised before responding to a request for a statement about the mental capacity (or lack thereof) of a patient. Note the legal implications. A request from someone other than the patient should be scrutinized especially closely, both because of confidentiality concerns and because of the possibility that the request does not actually come from the patient or reflect the patient’s wishes and interests. Careful attention is advised if the requested statement has been written out for the doctor’s attestation (eg, by an attorney who wishes to “make it easy”). Remember that signing such a document is “under penalty of perjury” and any inaccuracy or overstatement that may seem minor at the time may have uncomfortable implications in the glare of deposition, and errors may result in serious consequences.

Some actions, such as a declaration supporting a petition for conservatorship, are legally considered as being against the patient’s interests (and also may be regarded as such by the patient). The physician should therefore consider such requests carefully and review his own knowledge of the legal requirements of testamentary capacity or capacity for the action in question. An alternative course is to refer the patient for a forensic opinion rather than confound the responsibilities of clinical and forensic roles.

Payment for legal assessments is not considered “patient care” and therefore is not covered by Medicare or by most other policies. Because a conscientious approach to any legal matter requires time and may prudently involve a targeted interaction and assessment with the patient, consider scheduling such visits separately and establishing appropriate and separate billing procedures. Such actions will also reinforce to the patient that the physician does not regard such requests as routine or perfunctory.

A psychiatrist’s record may be subpoenaed relevant to a lawsuit or, less commonly, a criminal matter. In the great majority of cases, the records are sought not because of concerns about the physician’s care but to seek evidence about the patient’s condition as may be relevant to an allegation. Because a treating doctor’s observations are generally accorded great weight in court, testimony may be requested. Response to a subpoena requires proper observance of the rules of confidentiality; advice from counsel or malpractice carrier may be prudent. Be aware that professional fees are expected for reviewing medicolegal documents and testifying.

Conclusion

Elder abuse can only be expected to increase in the coming years because of demographic trends and other social changes. Potential financial gains from vulnerable elders are attractive opportunities for unscrupulous persons or may serve as venues for continuing long-standing family conflicts. Physicians, whose practices may already be under duress because of multiple demands and constraints, must nonetheless recognize their important role in the identification of and protection against elder abuse.

As in other matters, there are complex ethical and legal issues that must be considered, including confidentiality and the implications for the patient’s autonomy. Psychiatrists and other mental health professionals have particularly crucial roles in the assessment of the mental functioning that forms the basis for determining capacity, and for evaluating the consequences of abuse. Finally, psychiatrists must also be particularly attentive to issues of confidentiality and conflict of interest in the assessment and treatment of elderly patients who may have been abused.

 

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