Transcript Abuse, Neglect and Exploitation of Vulnerable Adults

Abuse, Neglect
and Exploitation
of Vulnerable Adults
An Overview
Iris C. Freeman
Center for Elder Justice and Policy
William Mitchell College of Law
October 9, 2008
Objectives
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Recognize characteristics that distinguish this
population.
Review MN’s legal definitions of vulnerability
and maltreatment.
Understand variability of laws across states.
Be aware of current advocacy efforts to
amend MN’s Vulnerable Adult Act.
Be aware of national advocacy effort, the
Elder Justice Act.
Distinguishing Characteristics
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Longstanding family dynamics make it especially
hard for victim to visualize escape.
Most perpetrators are family members (adult
children #1, spouse #2).
Victim may depend on perpetrator for physical care
and support.
Perpetrator may depend on victim for shelter,
money, and care.
Victim may have multiple, serious medical
conditions.
Both victim and perpetrator may need extensive
medical care.
Distinguishing Characteristics
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Neglect may be perpetrated by a caregiver or
be reported as self-neglect.
Financial exploitation is rife with subtleties.
Institutional care may be the resolution OR
the site of the violence.
Terminology of elder maltreatment includes
domestic and residential health care settings.
Distinguishing Characteristics
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Unlike domestic violence, the road to safety,
empowerment, and independence will probably not
be in a traditional shelter, safeguarding the children,
and finding steady employment.
Some elder victims do seek services through
domestic violence programs. (See Lundy and
Grossman, “Elder Abuse: Spouse/Intimate Partner
Abuse and Family Violence Among Elders,” Journal
of Elder Abuse and Neglect, Vol. 16(1), 2004).
Regardless of dementing illness or frailty, vulnerable
adults are not gray-haired children. Ethical issues in
intervention are complex.
Numbers
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Annual MN Reports: about 15,000 per year in
last several years
Statewide records maintained by Aging and
Adult Services (APS) in DHS
National Elder Abuse Incidence Study,
NCEA, 1998 – Reported 2 million estimated
to be only 16% of actual cases.
Types of maltreatment in order of prevalence:
neglect, abuse, financial exploitation
Minnesota’s Vulnerable Adult Protection Law –
Minn. Stat. 626.557
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Defines vulnerable adult
Defines types of maltreatment
Names mandated reporters
Identifies how, where, & when reports are to
be made
Names the investigating agencies
Specifies penalties
Specifies rights of appeal
Vulnerable Adult Act
Key Enactment Dates
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1980
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1995
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2009
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Each enactment date = several years of
preparation
Vulnerable Adult (MN)
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A person 18 or older who:
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Receives certain services, or
Meets the functional definition of
vulnerability
Definition: to trigger mandated report or
weaken individual autonomy or both?
Maltreatment (MN)
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Includes abuse, neglect and financial
exploitation
Defined in the Vulnerable Adult Act and in the
Criminal Code
Civil and criminal penalties
Like the definition of vulnerable adult, terms
like maltreatment and mistreatment vary
across states.
Abuse includes
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Physical, verbal and emotional abuse
Most types of sexual conduct by a caregiver
Forcing or enticing a vulnerable adult to
perform services against his or her will for the
advantage of another
Any conduct (not accidental or therapeutic)
that produces or could produce pain, injury or
distress for the vulnerable adult
Exceptions to Abuse (MN)
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A vulnerable adult or a person with authority
to make health care decisions for the
vulnerable adult refuses consent or
withdraws consent for medical care
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or selects spiritual means or prayer for
treatment in lieu of medical care
Exceptions to Abuse (MN)
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Sexual conduct between caregiver and
vulnerable adult, under certain circumstances
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Accident – specific to facilities
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Therapeutic conduct
Warning Signs of Abuse
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Bruises, skin tears, cuts
Broken bones
Injuries inconsistent with explanation
Internal injuries
Changes in mental functioning or behavior
Victim’s statements
Neglect includes
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Failure or omission by a caregiver to supply a
vulnerable adult with care or services…
necessary to obtain or maintain the vulnerable
adult’s physical or mental health or safety…or
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The absence or likelihood of absence of this
care or service.
Exceptions to Neglect (MN)
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Mirror those for abuse, e.g.
Refusal of treatment per health care decisions
or directives, or
Choosing alternatives to traditional medicine,
plus
An error in the provision of therapeutic conduct
that does not result in injury or harm, so long
as proper procedures of treatment and followup occur.
Warning Signs of Neglect
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Dehydration
Malnutrition
Weight loss
Poor hygiene
Lack of needed supervision
Absence of needed equipment or prostheses
Financial exploitation includes
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In a breach of fiduciary obligation recognized
elsewhere in law, an individual
Uses the entrusted funds in a way that, results
or is likely to result in detriment to the vulnerable
adult, or
Fails to spend the resources in the manner
necessary to carry out duties to the vulnerable
adult.
Despite headline cases, many situations are not
“promising” enough for prosecution.
Financial exploitation includes
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In the absence of legal authority, a person
willfully uses, withholds, or disposes of the funds of a
vulnerable adult;
obtains wrongful profit or advantage;
acquires possession, control or interest in funds or
property through undue influence or duress; or
forced servitude.
But facilities are not obligated to provide financial
management or supervise financial management.
Financial exploitation
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May be episodic or ongoing, associated or not with
physical abuse, emotional abuse, and neglect
Victims often isolated, lonely, grieving
Factors associated with perpetrators – chemical and
gambling addictions, sense of “entitlement”
Loss of life savings, assets deprives victim of the
economic foundation for independence.
See Rabiner, et. al., “A Conceptual Framework of
Financial Exploitation of Older Persons,” Journal of
Elder Abuse and Neglect, Vol. 16(2) 2004.
Warning Signs of Financial
Exploitation
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Being denied basic information about one’s
own finances
Unpaid bills (rent, utilities)
Being asked to sign documents “on faith”
Abrupt changes to will
Transfers of assets
Substantial bank withdrawals
Abrupt closure of bank accounts
Mandated Reporters (MN)
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A professional or professional’s delegate while
engaged in: (1) social services; (2) law enforcement;
(3) education; (4) the care of vulnerable adults; (5) any
of the occupations referred to in section section
214.01, subdivision 2; (6) an employee of a
rehabilitation facility certified by the commissioner of
jobs and training for vocational rehabilitation; (7) an
employee or person providing services in a facility as
defined in subdivision 6; or (8) a person that performs
the duties of the medical examiner or coroner.
Anyone can be a voluntary reporter.
Primary System Elements
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Common Entry Points that receive reports at
the county level
Directory of Common Entry Points, see MN
Board on Aging, www.mnaging.org
Lead Administrative Investigative Agencies:
DHS for facilities that they license; MDH for
facilities that they license; County APS for
cases in the community
Issues associated with localized case intake
Definitions Differ Across States
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No standard definitions of the population, of what
constitutes maltreatment, or how to investigate
Populations are identified by such terms as elder,
dependent, or vulnerable, with varying definitions.
Some state abuse prevention laws are singularly
aimed at nursing homes and their residents.
Challenge to cases that cross state lines, for data
collection, and for research
American Bar Association Commission on Law and
Aging has numerous resources on the pertinent state
laws. http://www.aganet.org/media/factbooks/
Practice Challenges
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Sensitivity to religious and cultural factors
Sorting out social security, retirement, and
pension benefits
APS Assessment – once focused on
determining need for social services, now a
greater role in investigations
Workers pressed to “rush to judgment” about
whether facts fit the applicable statutes
Professional liability and headlines
Research Challenges
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Has maltreatment as a result of “caregiver burnout”
been overblown?
How do we understand the impact of past conflict,
e.g. domestic violence, on maltreatment in the
caregiving context?
Determining processes by which elder victims seek
help
Resolving contradictory findings of existing
research, e.g. prevalence of abuse of elder men
State to state comparisons hampered by differing
definitions of abuse, neglect and exploitation
Preventing Institutional Abuse
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It’s about staffing!
Criminal background checks are helpful but not a
substitute for effective interviewing, culture of care,
good orientation, training, and good working conditions
According to U.S. GAO 2002 report, 21 states have
mandated criminal background checks for nursing
facility workers
But definitions and coverage varies.
Sufficient staff and consistency in staffing matter.
Supervision and support are critical to prevention.
Elder Justice Act
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Originally introduced in 2003 by Senators
John Breaux (D-LA, retired) and Orrin Hatch
(R-UT), Representatives Rahm Emanuel (DIL), Roy Blunt (R-MO) and Peter King (R-NY)
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Senate authors in 2005 and 2007 cycles Orrin Hatch (R-UT) and Blanche Lincoln (DAR)
Elder Justice Act Goals
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Heightened national awareness
Increased knowledge and professional
training
Support for prosecution
New long-term care programs to combat
elder abuse
Amended over time to improve chances for
passage
Note the lag between “authorizing” and
“financing”
Elder Justice Act – Awareness and
Coordination
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Office of Elder Justice at HHS & DOJ
These cases are inherently interdisciplinary.
Federal Office for Adult Protective Services
Note: Today, there is not even one federal
employee assigned full-time to the prevention
of or response to elder abuse.
Federal roles through Older Americans Act –
ombudsman and elder abuse prevention
grants; nursing home residents’ rights
enforcement; AGs’ Medicaid Fraud Units
Elder Justice Act – Increasing
Knowledge
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Coordination across governmental units
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Research, data collection
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Demonstration projects, e.g. safe havens
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Screening tools
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Model state laws
Elder Justice Act – Increasing
Training and Supporting Prosecution
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All relevant professionals – social service,
health, law enforcement
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Geriatricians trained in forensic pathology
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Public and consumer information and
assistance
Current Status of Bill
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Closer than ever to a full Senate vote 2
weeks ago when the Congress became
distracted with our national economic
crisis….
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Prospects in a new Congress?
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What options exist?
For more information about the
bill
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Status: http://thomas.loc.gov
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Elder Justice Coalition
www.elderjusticecoalition.org
Advocacy Opportunities
Nearby
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Vulnerable Adult Stakeholders Group
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Key activities since November 2007
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Legislative prospects
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VA Stakeholders’ Wiki site http://mnvac.pbwiki.com/
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Opportunities for you
Hot topics in MN
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Centralized intake; standard procedures
Amending functional definition of vulnerable
adult
Definitions that make it easier to identify and
take action on financial exploitation
Role of financial institutions as mandated
reporters
“Silver Alert”
For more information
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Iris C. Freeman
Advocacy Strategy
(612) 834-4747 phone
(612) 822-3570 FAX
[email protected]