The older population in the US is growing at an accelerated rate, which is due, in part, to aging baby boomers. It is estimated that by 2050, the population of those age 65 and older will reach approximately 83.7 million people, almost double that of 43.1 million in 2012.1 In parallel with this population growth, a wide array of medicolegal, risk management, regulatory, and forensic mental health issues will take on increasing importance, some having particular significance in the elderly population. This article reviews some of the many important topics at the intersection of geriatric and forensic psychiatry.
The clinical assessment is usually linked to forensic issues or questions. In relation to cases involving the elderly, several factors that may have an impact on thinking, mood, behavior, and cognition need to be considered. Comorbid medical and neurological conditions, polypharmacy, problems with sensory input, and focal cognitive deficits can all affect the mental state examination and need to be taken into consideration. A review of collateral psychiatric, medical, and neurological records is also a critical part of a thorough assessment.
Medical and neurological examinations, laboratory evaluation, brain imaging, and neuropsychological testing may all provide essential information linked to the forensic question. For example, in an elderly patient with cognitive impairment who is being assessed for decision-making ability, differentiating focal deficits from global impairment and progressive cognitive deterioration from reversible deficits may be central to issues that involve different forms of capacity and competency, safety, and advanced planning.
Capacity to make informed treatment decisions
Assessment of an elderly patient’s ability to make informed decisions about his or her health care usually involves a process of evaluation over a period of time. One model of the assessment of capacity involves the examination of 4 functional areas2:
• The ability to communicate a stable choice
• The ability to understand relevant factual information within the context of the treatment decision
• The ability to appreciate how the situation and outcome affect one’s personal life
• The ability to weigh the risks and benefits of options in the process of making a decision
The informed consent process requires additional measures after the determination of capacity. Questions about a patient’s ability to make decisions regarding evaluations and treatment can arise in various situations, including acute medical and surgical settings, psychiatric settings, with a primary care physician, and at nursing and assisted-living facilities. Of particular importance in the elderly population, capacity related to decisions about treatment and other types of capacity may be fluid and subject to change over time. Variables such as age, educational level, and cognition are significant to the assessment; in particular, there is a correlation between cognitive state and degree of deficits and capacity to make decisions about treatment.3,4
Results from a study that compared cognitive screening instruments in relation to capacity to make informed treatment decisions showed that a test of executive functioning was superior to a global cognitive screen.5 A thorough assessment of an elderly patient’s ability regarding medical decision making involves a multifaceted approach, including repeat assessments, education to teach a patient factual information about which decisions need to be made, and consideration of variables such as cognition, medical comorbidity, current medications, visual and auditory sensory deficits, educational background, and psychiatric state.
The potential risks and benefits of a procedure or treatment also need to be factored into the assessment, because this will relate to the appropriate threshold for capacity. For example, a complete blood cell count may be low risk and high benefit, compared with a novel treatment with high risk and limited benefit—the latter scenario requires a higher threshold of decision-making capacity.
A patient’s ability to give informed consent is based on 3 supporting concepts: information, voluntariness, and capacity.6 Analogous to a tripod, all 3 of these components need to be present in order for a patient to meaningfully give consent in the clinical setting. In the elderly patient, it is particularly relevant to examine each of these components. In addition, the concept of voluntariness needs to be considered, given concerns for vulnerability in the elderly to excessive or inappropriate influences from others, including family and friends. One important aspect to this process is communication between physician and patient, in a shared decision-making framework, in which the physician can confirm patient comprehension and take into account factors that may impede comprehension, including coexisting disabilities (eg, cognitive, visual), level of education, and personality.7
Dr Holzer is on staff at the McLean Geriatric Outpatient and Memory Diagnostic Clinic and faculty at Harvard Medical School in Boston. He reports no conflicts of interest concerning the subject matter of this article.
1. Ortman JM, Velkoff VA, Hogan H. An aging nation: the older population in the United States; population estimates and projections. May 2014. http://www.census.gov/prod/2014pubs/p25-1140.pdf. Accessed September 1, 2015.
2. Appelbaum PS, Grisso T. Assessing patients’ capacities to consent to treatment. N Engl J Med. 1988; 319:1635-1638.
3. Appelbaum PS. Assessment of patients’ competence to consent to treatment. N Engl J Med. 2007; 357:1834-1840.
4. Kim SYH, Karlawish JHT, Caine ED. Current state of research on decision-making competence of cognitively impaired elderly persons. Am J Geriatr Psychiatry. 2002;10:151-165.
5. Holzer JC, Gansler DA, Moczynski NP, Folstein MF. Cognitive functions in the informed consent evaluation process: a pilot study. J Am Acad Psychiatry Law. 1997;25:531-540.
6. Christensen K, Haroun A, Schneiderman LJ, Jeste DV. Decision-making capacity for informed consent in the older population. Bull Am Acad Psychiatry Law. 1995;23:353-365.
7. Giampieri M. Communication and informed consent in elderly people. Minerva Anestesiol. 2012; 78:236-242.
8. Stanley B, Guido J, Stanley M, Shortell D. The elderly patient and informed consent. JAMA. 1984;252:1302-1306.
9. McKoy JM, Burhenn PS, Browner IS, et al. Assessing cognitive function and capacity in older adults with cancer. J Natl Compr Cancer Net. 2014;12:138-144.
10. Lachs MS, Pillemer K. Elder abuse. Lancet. 2004;364:1263-1272.
11. Peisah C, Finkel S, Shulman K, et al. The wills of older people: risk factors for undue influence. Int Psychogeriatr. 2009;21:7-15.
12. In re Quinlan, 70 NJ 10, 355 A2d 647 (NJ 1976).
13. Cruzan v Director, Missouri Department of Health, (88-1503), 497 US 261 (1990).
14. Emanuel EJ. A review of the ethical and legal aspects of terminating medical care. Am J Med. 1988;84:291-301.
15. US Department of Health and Human Services. Health Information Privacy. http://www.hhs.gov/ocr/privacy. Accessed September 1, 2015.
16. Budnitz DS, Lovegrove MC, Shehab N, Richards C. Emergency hospitalizations for adverse drug events in older Americans. N Engl J Med. 2011;365: 2002-2012.
17. Hines LE, Murphy JE. Potentially harmful drug-drug interactions in the elderly: a review. Am J Geriatr Pharmacother. 2011;9:364-377.
18. Rochon PA, Gurwitz JH. Optimising drug treatment for elderly people: the prescribing cascade. BMJ. 1997;315:1096-1099.
19. The American Geriatrics Society 2012 Beers Criteria Update Expert Panel. American Geriatrics Society Updated Beers Criteria for Potentially Inappropriate Medication Use in Older Adults. J Am Geriatr Soc. 2012;60:616-631.