Stephen L. Read, MD

Elderly persons can become engaged with the legal system in multiple ways, but elder abuse is becoming more widely recognized as an important public health and social issue accompanying the increasing number of older adults in the US.

, knowledge has grown about many aspects of this issue.

 New programs have been developed, and research into elder abuse is ongoing. Law enforcement agencies and prosecutorial offices have also developed programs, and elder abuse forensic centers have begun to emerge.

 Nonetheless, as happened following the first definitions of child abuse, the magnitude of elder abuse continues to grow faster than our responses.

Psychiatrists are regarded as experts in assessments for decision-making capacity, and requests for consultation may originate from families, physician colleagues, or attorneys. These involve many issues: for example, does Mr Jones have the capacity to make dramatic changes to his will? What about influence from a relative-or caregiver-who appears to command the elderly person’s decision making? Is the elderly person able to make decisions about fundamental care issues, handle his or her finances, decide to sell a house, marry, divorce? What is his level of understanding of the consequences?

This article reviews the different categories of elder abuse, emphasizing the role and requirements for psychiatrists, with a focus on financial elder abuse.

The American Medical Association defines elder abuse and/or neglect as “an act of commission or omission that results in harm or threatened harm to the health or welfare of an older adult,” whether intentional or unintentional; several subtypes are recognized.

 refers to the use of force and/or threats that can result in injury, pain, or impairment. In addition, inappropriate use of drugs, restraint, or punishment, or the imposition of medical procedures without informed consent can be considered physical abuse. Documentation of any injuries is important, so a prompt and careful physical examination is required. However, because the elderly are prone to falls and can easily fracture bones or tear skin, establishing abuse can be a clinical challenge. The problem is compounded in the case of lesions such as ulcers that can be either signs of serious neglect or difficult-to-avoid complications of wasting illnesses.

Neglect may be considered a form of self-abuse, although injuries due to neglect-weight loss, decubitus ulcers, unexplained fractures, delay in seeking treatment-may raise questions of abuse on the part of a responsible party, including a caregiver and/or a facility, as in the case vignette that follows.

 includes rape and any other nonconsensual sexual contact, as well as other types of assault-exposure, nudity, etc. Sexual abuse of elders is an especially grave concern when unrelated caregivers attend patients with minimal or no supervision.

 refers to verbal or nonverbal acts that result in anguish, pain, or other distress (eg, insults, threats, humiliation, harassment). Often associated with physical abuse, verbally abused women also have higher 1-year mortality rates than women who do not report abuse.

 Adverse influence specifically related to psychological elder abuse may manifest in multiple ways. Statements such as “no one else cares about you,” are often accompanied by efforts to isolate the victim by controlling access to mail, phone, or transportation. Isolation from friends, family, and/or community can be considered psychological abuse and also facilitates an abuser by restricting access to other resources or points of view. Such verbal abuse also creates “evidence” that family, friends, or neighbors do not, in fact, care. By creating doubt and fear through the withholding or providing of basic needs (eg, food, hygiene, medications) and browbeating the elderly person, the abuser can extract favors or concessions.

 and with good reason. The most recent estimate of total household wealth in the US is $85.7 trillion, which represents more than 30% of world wealth. Estimates of the amount to change by inheritance in the coming decades reach as high as $40 trillion. Therefore, not only is the disposition of a person’s estate, by will and/or trust, the largest financial transaction in many persons’ lives, and of great significance to families and other heirs, the integrity of the testamentary act, as well as the validity of gifts, property transfers, and other financial acts, is also important for society at large. Opinions about testamentary capacity, either postmortem (in a contested situation) or antemortem may be requested by the family, the patient, or the attorney. Familiarity with the criteria for testamentary capacity and factors relevant to the vulnerability to undue influence is therefore basic.

Financial loss is often permanent and devastating

Financial restitution is unusual in elder abuse cases

Elderly persons are also prime targets for many others intent on their own financial gain, often in the guise of helping the elder or of soliciting for charity-the resulting impoverishment can be financially devastating. Official estimates of the sums involved approximate $2.9 billion annually; however, this is a gross underestimate because only a fraction of cases are reported. Many elderly victims do not report losses due to the incapacity that makes them vulnerable in the first place; others, because of the humiliation involved; and still others, because they refuse to acknowledge the fallacy of the scam.

The following case vignette illustrates the interplay that is most commonly encountered in elder abuse matters, although the outcome here is happier for the victim than for many others whose situations are irreversible.

After his wife’s death 20 years earlier, Dr S named 2 of his daughters co-trustees of his trust. As he continued professional activities, he had come to rely on the youngest to assist with his office, and then his home bills. When he retired after a stroke, she and her family came to live with him-and take care of him. Six months before the initial psychiatric evaluation, the other co-trustee daughter was shocked to learn that the assets of the trust had been reduced from several million dollars to less than $100. She confronted her sister and informed her other siblings. Conservatorship was granted by the court, and the experienced professional conservator decided that Dr S had to be removed from his long-time home for his own safety.

Dr S was placed in a nursing home because of his physical debilitation. During the initial forensic psychiatric consultation, Dr S was thoughtful and dignified, but with mild cognitive impairment due to early dementia, probably vascular-based. He was receiving physical therapy, but he had no insight into his youngest daughter’s responsibility for his deterioration, and he was unaware of her financial rapacity: he still endorsed her as his surrogate decision maker.

As Dr S improved physically, he regained some mental energy. His defense of his daughter foundered as the discovery process related to the conservatorship revealed her long pattern of stripping assets: purchasing property in other countries, buying gold ingots, and other patently deceptive acts. An epiphany occurred in a later session-he recalled that as he had weakened, he could not climb the stairs to his bedroom, and the daughter and her family would step over him as he lay exhausted on the landing! As he reflected on the meaning of that act, he came to realize how low her regard and concern had become. This description also proved to be impressive to the court.

At the hearing on competing petitions for conservatorship, the court decisively rebuked the abusive daughter and directed the district attorney to file criminal charges. Dr S was not vindictive, but neither did he continue to defend her; the psychiatrist attributed his equanimity to muted emotionality as a result of his vascular brain damage. Dr S was not called to testify, but the daughter and her husband were stripped of all the acquired assets, together with additional financial penalties, and served time in prison for elder abuse.

In summary, Dr S was the victim of physical neglect and abuse (he had lost 50 lb in 3 years), psychological tyranny and, of course, dramatic financial exploitation, presumably the major motivation for the daughter’s campaign (possibly with the additional benefit of being revenged on siblings of whom she had long been envious). This case illustrates several points to consider in assessments of elder abuse.

It cannot be overemphasized that the actions that constitute abuse are often not recognized as such by the abused party. Dr S was persistent in his defense of his daughter. This behavior is typical, and it was only with the demonstration that his condition was improving with care (previously denied) and with the uncovering of facts, that he acknowledged the truth. The label “abuse” tends to connote adversarial and overtly hostile action, but of the “weapons” of abusers, affection is especially effective because it serves to make the abused person complicit in the acts-he or she really wants to comply with the abuser.

Although not involved in this case, the siren song of romance in particular can be manipulated to lead to marriage, by which the spouse achieves substantial assumed standing for a variety of purposes. Also of note is that capacity to marry (and to divorce) requires only a low standard.

Greater knowledge of the situation improves the psychiatrist’s ability to assess what the patient can understand and whether he can grasp the situation. Limited knowledge of the elderly person’s situation complicates the evaluating psychiatrist’s ability to judge the elderly person’s insight and the accuracy of perception and memory; collateral information is crucial, and one must be aware of and document the sources available. In this case, the psychiatrist benefited from continuing contact as discovery proceeded and was able to help Dr S recognize emerging facts of his abuse.

A health care agent has multiple options for affecting decision making. Allying with the elder’s physician can provide significant cover for other, more nefarious actions. In this case, Dr S’s cardiologist colluded with the abusive daughter, presumably because of a prior relationship in which Dr S had made clear that she was the responsible one. Control of medications, or access to alcohol or pain medications, or other perceived necessities can also be leveraged to support the goals of the influencer.

Resources and medicolegal collaboration are vital. The other daughter co-trustee and family had the motivation and the resources to support their father. They identified highly skilled professionals, a conservator and an attorney, together with an experienced forensic geriatric psychiatrist, to pursue vigorous action-resources often in short supply.

Physical and psychological recovery are not universal (eg, mortality is 

 Fortunately, Dr S recovered vitality, weight, strength, and ambulation, with improved mental capacity, and he had the emotional comfort of the restored contact and care from his other 3 children to assist with weathering the betrayal of his youngest daughter and her family.

Financial loss is often permanent and devastating: the financial restitution Dr S received is unusual in elder abuse cases. Prosecution of elder abusers is also unusual, and in many cases no benefit will accrue to the victim even if there is a conviction-typically the funds have been dissipated or hidden successfully. So in this aspect the case vignette shows what one might hope would become a standard for society’s response to this epidemic.

Implications for the practicing psychiatrist

 Direct questioning about abuse may not be helpful since, as with Dr S, abused elders may not conceive of themselves as victims. Not surprisingly, therefore, the identification by professionals of elders who have been abused is quite variable, so the clinician must keep in mind the possibility of abuse despite denials. Although multiple screening instruments are available, they are not universally endorsed.

 Alternatively, in exploring the basis for unexplained physical injury or emotional distress, elements of abuse may become apparent and inquiries about financial habits and status may reveal other areas of concern. Office staff may relay clues: changes in communications or scheduling patterns, or waiting room behaviors. An odd request for pain medication may come from an elderly parent who has been coerced into asking to support his child’s or caregiver’s drug habit. Elders from ethnic or religious minorities may be particularly vulnerable because of the need to rely on translators or other mediators and/or because they may be approached or influenced by appeals to cultural-specific issues. Different practice settings (eg, case reports of abuse in skilled nursing home or residential care settings) have provided serious cause for concern.

. Psychiatrists are obliged to report when elder abuse is suspected or identified-failure to report is a lapse not only in ethical obligations but also has legal implications. Psychiatrists should be alert to the possibility of elder abuse not only when caring for elderly persons, but also with adult and child patients, many of whom will be in situations with aging parents and grandparents, and interactions including the potential for abusive or exploitative relationships may come to light.

 Performing and documenting a comprehensive geriatric mental status examination is a prime responsibility-a description is well beyond the scope of this article. Most commonly, the primary concern in the mental status evaluation of a presumed elder abuse victim is the degree of cognitive impairment, but the presence of mood disturbance, thought disorder, and other features may also prove to be critical in the analysis. It is often useful to score a standard rating scale-the Mini-Mental State Examination

 is the most common. However, the evaluation should encompass more detail and areas not covered well in such screening instruments. In particular, the elements of executive function should be evaluated, since these have been shown to correlate better with impaired decision making and vulnerability to abuse, and deficits in this area also typically precede the other cognitive losses of incipient dementia, such as memory.

At times the examiner’s attention may be directed to a specific area of concern regarding decision making, such as testamentary capacity, contracting, or medical decision making, and vulnerability to influence. An experienced psychiatrist, however, realizes that other areas may soon become relevant in a situation, such as an acute hospital setting, and will consider exploring areas beyond the immediate issue.

Thorough documentation is not only important for the immediate issue, but may prove to be very valuable for application in a subsequent legal matter. Sources of collateral information (eg, from a family member, an attorney) should be clarified. Specific statements by the evaluated elder can be very helpful for triggering your own memory and illustrating the specific communication and reasoning capacity of the patient if you are later called to testify at deposition or at trial about the basis of your opinions.

In addition, as the examining psychiatrist, you should note the following:

• Consultations for purely forensic purposes are generally not covered by insurance, including Medicare; to safeguard yourself, make sure that you have procedures in place that clarify the relationship, fees, and expectations for your work

• Avoid providing a forensic assessment for a patient under your care; whenever possible, avoid ethical conflicts-the requirement for objectivity may conflict with the therapeutic relationship and such a forensic report is likely to compromise the patient

• Capacity standards differ for different tasks, including making a will, signing a contract, marrying, managing finances (eg, to function as trustee)-as the forensic evaluator, make sure you obtain the specific standard for capacity from the requesting source

• Informed consent is a tricky question before the determination of capacity, but deception as to the purpose of the examiner, the retaining party, or the situation is ethically not permissible; some evaluations may be authorized by court sanction or by another authority, such as a court-appointed conservator

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 in particularly have 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.

Dr Read is Health Sciences Clinical Professor, Department of Psychiatry and Biobehavioral Sciences at the David Geffen School of Medicine, UCLA. His practice focuses on geriatric forensic psychiatry in a career devoted to the care and evaluation of elderly patients in multiple settings and situations. He reports no conflicts of interest concerning the subject matter of this article.

 Read S, Weinstock R. Forensic geriatric psychiatry. In: Simon RI, Gold LH, eds. 

. 2nd ed. Washington DC: American Psychiatry Publishing, Inc; 2010:505-528.

 Schneider DC, Mosqueda L, Falk E, et al. Elder abuse forensic centers. 

Diagnostic and Treatment Guidelines on Elder Abuse and Neglect

. Chicago: American Medical Association; 1994:4-24.

 Baker MW, LaCroix AZ, Wu C, et al. Mortality risk associated with physical and verbal abuse in women aged 50-79. 

 The MetLife Study of Elder Financial Abuse. June 2011. 

https://www.metlife.com/assets/cao/mmi/publications/studies/2011/mmi-elder-financial-abuse.pdf

 Hankin M, Read S. Mental incapacity to marry. 

. (State Bar of California). 1994;14:46-52.

 Lachs MS, Williams CS, O’Brien S, et al. The mortality of elder mistreatment. 

Caldwell HK, Gilden GG, Mueller M. Elder abuse screening instruments in primary care: an integrative review, 2004-2001. 

 Folstein M, Folstein SE, McHugh PR. Mini-mental state: a practical method for grading the cognitive state of patients for the clinician. 

 Marson DC. Clinical and ethical aspects of financial capacity in dementia: a commentary. 

 American Academy of Psychiatry and the Law. Ethics guidelines for the practice of forensic psychiatry. 2005. 

Articles

The Four Categories of Elder Abuse: Evaluation Approaches

Elder abuse-behaviors toward the elderly that are malignant and damaging-has
become a major public health issue. In Boston, more than 3 of 100 persons aged 65 years and older have been victims of elder abuse, and tens of thousands of cases are reported to Adult Protective Services Agencies annually in the United States.1 These numbers, which do not include financial elder abuse, can be expected to increase as the population of older persons increases.[1,2] Between 2000 and 2030 the population aged 65 years and older in the United States is projected to increase from 12.4% to 19.6%. Even more dramatically, the number of persons aged 80 years or older is anticipated to more than double from 9.3 million to 19.3 million.[3]

Elder abuse is a concern for all practitioners who care for elderly patients or their family members. An elderly person’s fears of aging and dependence may be heightened by stories and news accounts of abuse. Medical and psychiatric care is fundamental in the identification, treatment, and mitigation of clinical effects of elder abuse, and physician documentation often provides evidence crucial for investigations of elder abuse. All practitioners need to be aware of the ethical and statutory requirements for reporting abuse or suspected abuse. In addition, elder abuse has broader effects that radiate through society-to family members, caregivers, institutions, and courts (issues beyond the scope of this article).

Here I review aspects and concepts of elder abuse and the implications for clinical and forensic practice. I will begin with an illustrative case vignette.

Mrs A was a long-widowed 86-year-old woman whose favorite nephew was unable to reach her by phone. He had been turned away at her door by Mr X, who said he was her conservator and thus responsible for Mrs A. 

A social worker from Adult Protective Services was also rebuffed. Mrs A’s nephew sought the assistance of an elder law attorney, who obtained a court order for a medical and psychiatric evaluation of Mrs A.

Mrs A proved to be a sweet but frightened woman who clearly had lost a lot of weight. She was very weak and had been functionally confined by Mr X, with no access to a telephone. She appeared desperate for contact and conversation. Her short-term memory was impaired, and she did poorly on tests of mental control; she scored 21 on the Mini Mental State Examination (MMSE). Medical examination confirmed multiple bruises, malnutrition, and other untreated medical conditions.

Based on her impaired capacity and physical deterioration, with obvious evidence of injury, neglect, and abuse, and her overt fear of Mr X, a petition to the court finally removed Mr X as conservator. The lengthy process eventually consumed nearly two-thirds of Mrs A’s estate. (As conservator, Mr X was able to use her funds to oppose the actions against him.) Mrs A was
finally able to live out her life in comfort and safety and with the attention of family and friends.

The American Medical Association defines elder abuse and/or neglect as “an act of commission or omission that results in harm or threatened harm to the health or welfare of an older adult,” whether intentional or unintentional. Several subtypes are recognized.[4]

Physical abuse refers to the use of force that can result in injury, pain, or impairment. In addition, inappropriate use of drugs, restraints, or punishment, or the imposition of medical procedures without informed consent can be considered physical abuse. Because physical abuse may result in injuries, prompt and careful physical examination is required. However, because the elderly are prone to falls and can easily fracture bones or tear skin, establishing abuse can be a clinical challenge. The problem is compounded in the case of lesions such as ulcers that can be either signs of serious neglect or difficult-to-avoid complications of wasting illnesses.

Sexual abuse includes rape and any other nonconsensual sexual contact, as well as other types of assault, exposure, nudity, etc. Sexual abuse of elders is an especially grave concern when unrelated caregivers attend patients with minimal or no supervision.[5]

Emotional or psychological abuse refers to any verbal or nonverbal acts that result in anguish, pain, or other distress (eg, insults, threats, humiliation, harassment). Isolation from friends, family, and/or community can be considered psychological abuse and also potentially facilitates an abuser’s other goals, including secrecy. Adverse influence specifically related to psychological elder abuse may manifest in multiple ways. It can be verbal. Statements such as “no one else cares about you,” are often accompanied by efforts to isolate the victim by controlling access to mail, phone, or transportation. Such verbal abuse also creates “evidence” that family, friends, or neighbors do not, in fact, care. By creating doubt and fear through the withholding or providing of basic needs (eg, food, hygiene, medications) and brow-beating the elderly person, the abuser can extract favors or concessions.

Manipulation of prescription medications, especially for pain, or controlling access to alcohol or cigarettes can also be a very effective means of control. Medically knowledgable abusers can control mental states by having their victim be relatively alert for a doctor’s visit but obtunded at other times.

In addition, romance can be used as a tool to manipulate the elderly person. Because elderly persons may frequently experience isolation or loneliness, they may be more prone to accept professions of love and desirability at face value. The pleasure of being considered attractive does not disappear with age nor does sexual responsiveness. Even further damage can be done. When the abuser is able to “prove” his or her dedication with marriage, he then gains legal rights and privileges.

Psychological manipulation is not necessarily associated with distress on the victim’s part-
instead, an elderly person may experience comfort and caring. The victim will not give credence to the abuser’s ulterior motives. The victim may therefore collaborate in concealing the abuser’s role. Alternatively, the abuser may convince the victim that he or she is “bad,” that the abuser
“really cares,” and is the only one preventing the elderly person from “going to a home.” This has been likened to the Stockholm syndrome (a psychological response in which a hostage shows signs of loyalty to his abductor). Paradoxically, lurid publicity about elder abuse can facilitate the effectiveness of the abuser’s strategy of persuading the victim that the abuser is the only bulwark against abandonment.

Financial elder abuse and exploitation are common. Financial gain serves as motivation for abuse, which can influence and/or control the victim. Financial abuse and exploitation are more likely to be identified by friends and neighbors, family members, financial professionals, or attorneys, than by physicians. The financial abuser can:

• Obtain power of attorney and then divert funds.

• Cheat on expenses and/or wages as the dependent elder becomes more impaired.

• Manipulate the elderly person into accepting unneeded or misjudged financial “services.”

• Be named as beneficiary in testamentary documents-wills or trusts.

Elder abuse issues for the practicing clinician

A clinician may learn of suspected elder abuse directly from a patient. Alternatively, the clinician may become concerned after observing an elderly patient or after a family member, concerned party, or outside agency refers an elderly person. The victim may be unaware of exploitation or be intimidated or insulted at the implication that he is “crazy” or “becoming senile” and cannot take care of himself or his affairs. Appropriate response requires sensitivity and careful attention to issues of responsibility, trust, and confidentiality. The clinician should maintain an attitude of “healthy suspicion,” even with familiar patients and caregiving situations, as the following cautionary case vignette illustrates.

Dr X had cared for Mrs Y for many years, including the last decade of her life, as she slowly descended into dementia. Hired as a caregiver, Ms Z became a constant presence in Mrs Y’s life and Dr X relied on her for essentially all communication about Mrs Y. Although Dr X had recorded Mrs Y’s severe dementia, he did not question Ms Z’s salary increase and her subsequent purchase of a house with Mrs Y’s funds. Furthermore, having documented her strong desire to live out her life in her home, he did not protest when Ms Z moved Mrs Y into the new house.

After Mrs Y died, it was found that her will had been amended in the previous year and that her entire estate had been left to Ms Z. At trial, Dr X testified that although he did not believe Mrs Y was competent, he believed Ms Z “deserved” the benefits that had come her way. He was rebuked by the court for having ignored his own findings. In an attempt to safeguard decisions from the “undue” influence of caregivers such as Ms Z, special protections have been established by law.[6,7]

Although it may lay the groundwork for a patient (or a family member) to begin to recognize an ongoing problem, simply asking an elderly person about abuse will not always identify a situation of abuse. Many cases will be overlooked. While various screening procedures have been suggested for the identification of elder abuse, none has gained general acceptance, and different approaches result in substantially different rates of identification.8 A better-accepted and more-effective method is the concept of identifying risk factors (Table).[9]

In any case of suspected elder abuse, the clinician is advised to undertake a comprehensive examination. While the psychiatrist should describe obvious relevant physical findings, a physical examination should be undertaken by an appropriate specialist. Documentation of a careful mental status examination is invaluable, both for clinical and evidentiary purposes. Mood and affective reactions may reveal difficulties even in the face of verbal denial. Careful evaluation of cognitive functions is especially essential. Vulnerability to financial abuse is elevated during the early and mild stages of dementia, when a person’s memory and cognition are declining, but when he can still sign a deed or contract, or execute a trust or will, albeit without clear understanding and appreciation.[10]

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.

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).

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.

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.

[Editor's note: The above article was published as a Category 1-CME in the September 2008 issue of 

(2008;25(9):62-64). The activity is now expired].

The author reports no conflicts of interest concerning the subject matter of this article.

1. Pillemer K, Finkelhor D. The prevalence of elder abuse: a random sample survey. Gerontologist. 1988;28:51-57.

2. National Center on Elder Abuse. National Elder Abuse Incidence Study. Washington DC: American Public Human Services Association; 1998.

3. US Census Bureau. International database, 2001. Table 094. Midyear population, by age and sex. 

http://www.census.gov/population/ www/projections/natdet-D1A.html

4. Diagnostic and Treatment Guidelines on Elder Abuse and Neglect. Chicago: American Medical Association; 1994:4-24.

5. Weinberg AD. Issues involving sexual abuse of nursing facility residents. J Am Med Dir Assoc. 2002;3:395-396.

8. Cohen M, Levin SH, Gagin R, Friedman G. Elder abuse: disparities between older people’s disclosure of abuse, evident signs of abuse, and a high risk of abuse. J Am Geriatr Soc. 2007;55:1224-1230.

9. Shugarman LR, Fries BE, Wolf RS, Morris JN. Identifying older people at risk of abuse during routine screening practices. J Am Geriatr Soc. 2003;51:24-31.

10. Martin R, Griffith R, Belue K, et al. Declining financial capacity in patients with mild Alzheimer disease: a one-year longitudinal study. Am J Geriatr Psychiatry. 2008;16:209-219.

11. Folstein M, Folstein SE, McHugh PR. “Mini-mental state.” A practical method for grading the cognitive state of patients for the clinician. J Psychiatr Res. 1975;12:189-198.

12. Royall DR. Mild cognitive impairment and functional status. J Am Geriatr Soc. 2006;54:163-165.

13. Lindbloom EJ, Brandt J, Hough LD, Meadows SE. Elder mistreatment in the nursing home: a systematic review. J Am Med Dir Assoc. 2007;8:610-616.

14. MacLean DS. Preventing abuse and neglect in long-term care, part II: clinical and administrative aspects. Ann Long-Term Care. 2000;8:65-70.

15. MacLean DS. Preventing abuse and neglect in long-term care, part I: legal and political aspects. Ann Long-Term Care. 1999;7:452-458.

16. Coyne AC, Reichman WE, Berbig LJ. The relationship between dementia and elder abuse. Am J Psychiatry. 1993;150:643-646.

Elder abuse is a concern for all practitioners who care for elderly patients or their family members. An elderly person’s fears of aging and dependence may be heightened by stories and news accounts of abuse.