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Emergency Medicine News:
Legal Notes

Elder Abuse and Society's Response

Glauser, Jonathan MD, MBA

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Dr. Glauser is an assistant professor of medicine at Case Western Reserve University and attending staff faculty in emergency medicine at the Cleveland Clinic Foundation in Cleveland.

Because the responsibility for identifying elder mistreatment often falls on emergency care providers, it is worth taking note of the resources available to assist us in addressing and evaluating this problem. The list is long: physicians, nurses, social workers, caseworkers, law enforcement personnel, clergy, prosecutors, and representatives from financial institutions.

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In the United States, reports of abuse and neglect in nursing homes in the 1970s led to a systematic study of elder mistreatment by the United States Senate Special Committee on Aging. (U.S. House Select Committee on Aging and U.S. House Science and Technology Subcommittee on Domestic, International, Scientific Planning Analysis and Cooperation Domestic Violence 1978, Washington D.C.: U.S. Government Printing Office.)

Every state has a nursing home ombudsman program that responds to reports of neglect or abuse

Since that time, the National Center on Elder Abuse was created under the auspices of the Department of Health and Human Services. In 1973, Area Agencies on Aging were established under the Older Americans Act, and are present in every community. These provide community-based services such as adult day care, in-home services such as homemakers and Meals on Wheels, and support of elder rights such as legal assistance. (National Association for Area Agencies on Aging. Available at www.n4a.org/aboutn4a.cfm.)

The first federal government measures to address elder abuse came in Title XX of the Social Security Act of 1974, which gave individual states authorization to use Social Service Block Grant funds to protect the elderly and children. (J Am Geriatr Soc 1994;42:169.)

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Duty to Report

The 1985 Elder Abuse Prevention, Identification, and Treatment Act defines abuse as the “willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical harm or pain or mental anguish, or the willful deprivation by a caretaker of goods or services which are necessary to avoid physical harm, mental anguish, or mental illness.” (Clin Geriatr Med 2005;21:279.)

Federal definitions of elder abuse were addressed further in the 1987 amendments to the Older Americans Act. (Postgrad Med 1999;106:169; J Geront Nurs 1997;23[7]:24.)

In 1987, Congress enacted legislation that required nursing homes participating in the Medicare and Medicaid programs to comply with certain quality of care requirements. This legislation was included in the Omnibus Budget Reconciliation Act (OBRA), also known as the Nursing Home Reform Act. (Acad Med 1995;70:979.)

Every state has a nursing home ombudsman program that responds to reports of neglect or abuse in the nursing home elderly. Physicians may report suspicions of abuse to the state ombudsman or to Adult Protective Services. (J Geront Nurs 1997;23[7]:24; Ann Emerg Med 1986;15:528.)

The American Medical Association in 1987 proposed this definition: “Abuse shall mean an act or omission which results in harm or threatened harm to the health or welfare of an elderly person. Abuse includes the intentional infliction of physical or mental injury, sexual abuse, or withholding of necessary food, clothing, and medical care to meet the physical and mental needs of an elderly person by one having the care, custody, or responsibility of an elderly person.” (J Elder Abuse Negl 1993;5:35.)

The duty to report suspected elder abuse is less familiar than child abuse reporting requirements. Every state has a designated protective services agency to receive reports and assist older, vulnerable, or frail adults. (Clin Geriatr Med 2005;21[2]:429.)

Mandatory reporting laws generally apply to professionals who routinely encounter vulnerable populations, including medical and mental health personnel. Every state provides for permissive reporting of suspected abuse or neglect by anyone. Protective service agencies must keep the identity of the reporter confidential. (Clin Geriatr Med 2005;21[2]:429.)

Because statutes are intended to encourage reporting, those reporting in good faith are immune from criminal and civil lawsuits. Protective services must keep the identity of those reporting confidential. In fact, in most cases, no criminal conduct has occurred. Adult Protective Services (APS) often fall under the same agency umbrellas as Child Protective Services (CPS), and are forced to compete with CPS for funding and resources.

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Obstacles to Detection

Previously I have discussed reasons why most elder abuse is not reported. From a legal perspective, victims may be unwilling to press charges against a family member. An abused older adult may be uninformed or misinformed regarding services available (Ann Emerg Med 1990;19:970), and they may harbor a fear of being removed from the home and placed in a nursing institution. This fear may, in fact, be warranted. In a Connecticut study, 60 percent of abused and neglected victims admitted for short-term care remained institutionalized permanently.

Last in a Three-Part Series

Physicians infrequently report elder abuse for a variety of reasons. They may not be familiar with reporting laws, may fear offending patients or their abusers, or are concerned with time limitations in the emergency department. Time limitations may be a pervasive and driving fear in other medical specialties as well. Physicians may fear state involvement in the matter or simply want to avoid the court process and possible court appearances. (Ann Emerg Med 1990;19:970, and The 2000 Survey of State Adult Protective Services. Available at www.elderabusecenter.org/pdf/research/apsreport030703.pdf.)

Further confounding factors may relate to any underlying medical disorder the patient may have. Advanced neurologic disease such as multiple sclerosis, amyotrophic lateral sclerosis, or Parkinson's disease may lead to immobilization and severe disability. These individuals may have pressure ulcers, pneumonia, or venous thromboembolism, even with adequate care. (Am Fam Phys 1999;59[10]:2804.)

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Myths about Adult Protective Services

Not all APS workers are social workers. In fact, not all have bachelor's degrees, and they are agents of the state. As such, their authority is defined by statute, and they cannot impose interventions on persons with decision-making capacity. (Clin Geriatr Med 2005;21[2]:429.)

The reality is that people with early and even moderate dementia have preserved social skills that make it difficult to assess their capacity. Geriatrists, psychiatrists, and other medical professionals may need to assess the client's ability to understand the consequences of decisions, and legal interventions are used in only seven percent of cases nationally.

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The Bottom Line

Elder abuse patients have substantial interactions with emergency departments. Geriatric abuse as a health care issue is a relatively recent phenomenon and still evolving, but geriatric care is only going to grow as a component of emergency care in the future.

The care and safety of the elderly may include legal advocacy and assistance, helping with emergency shelter, obtaining longer term health services, and recovery from financial exploitation. In the time-pressured environment that EPs work within, emergency physicians must know how to access APS and other resources.

Many elderly persons experience progressive dependency and social isolation. EPs are well situated for detecting and reporting suspected cases, although many barriers exist on the individual level. These visits frequently require hospital admission.

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Elder Abuse: The Bottom Line

▪ EPs must know how to access Adult Protective Services and other resources for elder abuse patients.

▪ Geriatric care is going to grow as a component of emergency care in the future.

▪ The care and safety of the elderly may include legal advocacy, helping with emergency shelter, and obtaining longer term health services.

▪ Many elderly persons experience progressive dependency and social isolation, and EPs must detect and report suspected cases.

© 2006 Lippincott Williams & Wilkins, Inc.

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