Legal, Ethical And Best Practice Issues -PARTICIPANT MANUAL

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALCalifornia Laws that May Apply in Self Neglect Cases.SituationStatutesAn adult appears to be a danger to him or herself or others, or gravely disabled as a resultof mental illness.Welfare and Institutions code §5150permits police or mental health workers toremove individuals from their homes on anemergency, temporary basis to assesstheir need for psychiatric treatment orhospitalization. May lead to LPSconservatorship (Welfare andInstitutions code §5350) if the personhas a serious mental disorder or isimpaired by chronic alcoholism andrequires hospitalization in a psychiatricfacilityAn adult is incapable of managing his or herfinancial and/or personal affairs and is at riskof abuse, neglect, exploitation or undueinfluenceProbate code §1801 provides for “probateconservatorship,” a process in which courtsappoint individuals (conservators) to act onbehalf of incapacitated persons(conservatees). After filing petitions forappointment, prospective conservators can filepetitions for temporary conservatorship(Probate code §2250) which enables them toprovide conservatees with immediate care fora limited time, pending the determination ofthe main petition.An adult is unable to consent to neededmedical treatmentProbate code Section §3200 allows forhealth and medical care providers, neighbors,friends and others to petition the court to ordermedical treatment and to select and dischargehealth care providers and institutions onbehalf of the incapacitated person.Health and Safety code Section §1418.8authorizes skilled nursing or intermediate carefacilities to conduct interdisciplinary teamreviews to make medical decisions forincapacitated residents who lack surrogateswhen physicians prescribe medicalinterventions that require informed consent.ADVANCED MODULE 3Version 2-15-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALAn adult’s assets are in imminent jeopardyand the adult is believed to be incapable ofprotecting themA person’s home or residence is hazardous1Probate code §2950 authorizes publicguardians to freeze or seize the assets ofpersons who are incapacitated when theassets are believed to be in jeopardy andthe PG intends to file for conservatorship.§29521 authorizes specially trained peaceofficers to issue declarations stating thatthere is probable cause to believe that acrime is being committed against anincapacitated person and that the personis in danger of losing his or her property.The declaration must be co-signed bylocal APS supervisors and sent to publicguardians who may then take possessionor control of the property.State and local fire, building, housing,and health codes address blight andsafety hazards.A person is a nuisance to othersPenal code §370 addresses acts orsituations that are injurious, indecent,offensive or obstructive to neighborhoods,communities or others.Pets are not being cared for properlyPenal code §597 addresses cruelty toanimals. Failure to provide adequately for petscan result in the removal of animals. Peopleconvicted of cruelty to animals can be orderedinto counseling.This statute is being used in some California counties and not others.ADVANCED MODULE 3Version 2-16-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALDecision-Making Capacity and ConsentTIME ALLOTTED: 25 minutesSlide # 19Self Neglect and Diminished CapacityDyer et al. (2007) foundthat:Of 500 self-neglectingelders, half scoredpoorly on mentalhealth tests.Slide # 20Functional vs legal capacity Functional, or clinical, capacity isdetermined by clinicians based onclinical judgments Legal capacity is a thresholdrequirement, imposed by societies,that is required for particularactivities, actions, or decisions. Denotes legal status that mayremove rights to self determinationor transfer of authority to others.ADVANCED MODULE 3Version 2-17-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALSlide # 21Legal capacity judgmentsBased on:ClinicaljudgmentsStatuteCaselawPrinciplesof justiceSlide # 22Capacity is collection of skills, that includes:MemoryLogicTheability tocalculateExecutivefunctionSlide # 23Criteria for Specific Actions or DecisionsCapacity: To make medical decisions To execute advance directives(for health or finances To execute a will(testamentary) To contract To give gifts (donative)ADVANCED MODULE 3Version 2-18-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALSlide # 24Capacity Declarations for conservatorshipForm GC-335 May be filed as an attachmentto the Petition forAppointment of Conservator Must be completed by PsychiatristPsychologistGeriatric physicianPalliative medicine physicianFamily doctorSlide # 25Deficits in Mental FunctioningMust be supported byevidence of deficits in atleast one of the followingmental functions1. Alertness and attention2. Information processing3. Thought processes4. Ability to modulate moodand affectSlide # 26Filling out Capacity Declarations ProblemsFailure to fill outADVANCED MODULE 3Version 2-19-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALNameandAddressMust markA,B, or CMust bedatedIf B. mustcheck boxesSignature!Include #of pagesADVANCED MODULE 3Version 2-20-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALName!Mark ALLquestionsMust notbe all a’sand e’sare to beavoidedADVANCED MODULE 3Version 2-21-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALNameMust markhas/does notIf D ismarked“has”, mustcomplete EThis is the opportunity to indicate any environmental orsocial factors that compound the mental capacity issues.MustcompleteMustcomplete2 nd signature!ADVANCED MODULE 3Version 2-22-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALSlide # 27ConsentRequires that the consenting person:Possesses themental capacityto make anintelligentchoice whetherto do somethingproposed byanother person.Is acting freelyand voluntarilyand not underthe influence ofthreats, force orduressHas knowledgeof the truenature of the actor transactioninvolvedMerely beingpassive does notamount toconsent.Requires freewill and positivecooperation inact.Slide # 28Principles of Legal Decision-Making Capacity No single standardNormal adults are presumed tohave capacity.Burden of proof lies with thosealleging incapacityDiagnosis does not constituteincapacity.Cognitive impairment does notconstitute incapacity.The more significant the decision,the higher the level of capacityneeded.ADVANCED MODULE 3Version 2-23-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALCriteria for Specific Actions or DecisionsDecision or ActionCapacity to make medicaldecisions or executeadvance health caredirectivesCriteriaThe patient must have the ability to:·····Understand the medical problemUnderstand the proposed treatmentUnderstand alternatives to the proposed treatmentUnderstand and appreciate the foreseeable benefits andrisks of the treatment and of postponing or refusing it.Communicate decisionsCapacity to execute a will(testamentary)The person must:· Have the ability to describe what a will is· Have the ability to describe a basic plan fordistributing their assets to heirs· Know the nature and extent of his or her bounty· Be able to identify or recognize potential heirs andbeneficiariesCapacity to contractThe person must be able to understand the nature andconsequences of the transaction.The person must have “an intelligent perception andunderstanding of the dispositions made of property andthe person and objects one desires shall be therecipients of one’s bounty”Capacity to create or revoke Traditionally based on the capacity to contract althougha power of attorneysome courts have held that the standard is similar to thatfor making a will.APA-ABATriggers for taking· The existence of diminished capacityprotective· A risk of substantial harmaction 2· An inability to act adequately in one’s own interest(includes that ability to withstand undue influence)Probate conservatorshipCalifornia courts use “capacity declarations,” which canbe filled out by doctors, psychologists and religioushealing practitioner address the following elements of“executive function”:Capacity to give gifts(donative)····2Alertness and attentionInformation processing.Thought disordersAbility to modulate mood and affect.Recommended for lawyers under the American Bar Association’s Model Rules of Professional Conduct.ADVANCED MODULE 3Version 2-24-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALETHICAL AND CULTURAL ISSUESTIME ALLOTTED: 10 minutesSlide # 29Ethical PrinciplesAutonomy.The right of individuals to make decisions forthemselves that are voluntary and intentional and notthe results of coercion, duress or undue influence.Least restrictivealternatives.Options that are least restrictive of incapacitatedpersons’ autonomy, independence, and freedom ofchoice.Beneficence.“Doing good for others” or promoting their welfare.When clients cannot make decisions for themselves,workers may need to act in their best interest.Justice.The fair and equitable distribution of benefits andburdens. Workers must balance the needs of selfneglecting clients against those of other clients.Nonmaleficence.“Do no harm.”Privacy.People’s right to control information about themselves.ADVANCED MODULE 3Version 2-25-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALN A T I O N A L A D U LT P R O T E C T I V ES ERV ICES A SSO C IAT IO NNATIONAL ADULT PROTECTIVE SERVICES ASSOCIATIONCode of Ethics NAPSA 2004Adult Protective Services Ethical Principles and Best Practice GuidelinesDedicated to the memory of Rosalie WolfAdult Protective Services are those services provided to older people and people withdisabilities who are, or are in danger of being mistreated or neglected, are unable toprotect themselves, and have no one to assist them.Interventions provided by Adult Protective Services include, but are not limited to, receivingreports of adult abuse, exploitation or neglect, investigating these reports, case planning,monitoring and evaluation. In addition to casework services, Adult Protection may provide orarrange for the provision of medical, social, economic, legal, housing, law enforcement or otherprotective, emergency or supportive services.ValuesGuiding Value: Every action taken by Adult Protective Services must balance the duty to protectthe safety of the vulnerable adult with the adult’s right to self-determination.Secondary Value: Older people and people with disabilities who are victims of abuse, exploitationor neglect should be treated with honesty, caring and respect.ADVANCED MODULE 3Version 2-26-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALPrinciples Adults have the right to be safe. Adults retain all their civil and constitutional rights unless some of these rights have beenrestricted by court action. Adults have the right to make decisions that do not conform with societal norms as long asthese decisions do not harm others. Adults are presumed to have decision-making capacity unless a court adjudicatesotherwise. Adults have the right to accept or refuse services.Practice Guidelines Recognize that the interests of the adult are the first concern of any intervention. Avoid imposing personal values on others. Seek informed consent from the adult before providing services. Respect the adult’s right to keep personal information confidential. Recognize individual differences such as cultural, historical and personal values. Honor the right of adults to receive information about their choices and options in a form ormanner that they can understand. To the best of your ability, involve the adult as much as possible in developing the serviceplan. Focus on case planning that maximizes the vulnerable adult’s independence and choice tothe extent possible based on the adult’s capacity. Use the least restrictive services first—community based services rather than institutionallybased services whenever possible. Use family and informal support systems first as long as this is in the best interest of theadult. Maintain clear and appropriate professional boundaries. In the absence of an adult’s expressed wishes, support casework actions that are in theadult’s best interest. Use substituted judgment in case planning when historical knowledge of the adult’s values isavailable. Do no harm. Inadequate or inappropriate intervention may be worse than no intervention.ADVANCED MODULE 3Version 2-27-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALSlide # 30Approaches to Surrogate Decision-MakingPast PreferencesHonor preferences that the person hasexpressed in the past.SubstitutedJudgmentBest InterestIf preferences aren’t known, surrogates shoulduse “substituted judgment.”DiscussionWhen legitimately involved persons disagree,they should be encouraged and provided withopportunities to meet to exchange informationand views.CourtInvolvementWhen parties can’t agree, courts may need tobe consulted (e.g. to appoint a conservator).When this isn’t known, surrogates use “bestinterest” standard.Hierarchy of Approaches to Surrogate Decision-Making.Even when people cannot express preferences, their autonomy should be respected to theextent possible. The following hierarchy of approaches applies:······Honor preferences that the person has expressed in the past. These can be determined byconsulting clients’ records and people who know them. It should be noted, however, thatpast preferences may need to be re-considered. For example, it may no longer be advisablefor a client who consumed alcohol in moderation in the past to continue in do so in light ofillnesses, medications, etc.If preferences are not known, surrogates should use “substituted judgment.” This meansthat decisions should be based on what the person would have wanted or preferred. Thisapproach requires substantial information about clients’ views and wishes.When there is insufficient information on which to base substituted judgment, surrogatesmust decide based on their judgment about what would be in the “best interest” of thepatient. Estimates of best interest are based on what a rational, normal person would prefer,not just on what the surrogate prefers.In cases in which physicians, surrogates, other family members, service providers, or otherlegitimately involved persons disagree about what is in the person’ best interest, partiesshould be encouraged and provided with opportunities to meet to exchange information andviews.In cases where agreement can’t be reached, interested parties should consult ethicscommittees if available. Other options include multidisciplinary elder abuse teams or otherproblem-solving groups.When a surrogate or physician is acting against the expressed preferences or best interestof the patient and consultation with an institutional ethics committee fails to bring aresolution of the disagreement, the courts can be consulted to order treatment or appoint aconservator.ADVANCED MODULE 3Version 2-28-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALSlide # 31Cultural VariablesDo all cultural groups share the same values?Slide # 32Small Group AssignmentStep 1Step 2Step 3Step 4Assign aAssign aReadAnswer the“scribe” to “reporter.” through questionstake notes.the case.ADVANCED MODULE 3Version 2-29-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALCase 1: Mrs AlvarezMrs. Alvarez is 92 years old and lives alone in an apartment. She has 10 cats and her home isfilthy and infested with fleas, lice, cockroaches and flies. Neighbors have called the police tocomplain about the odor. On several occasions, neighbors and the facility’s manager have madereports to APS. Each time APS has investigated, they have found Mrs. Alvarez to be marginallycapable of making decisions. Recently, the management sent her an eviction notice stating thatif she does not clean up the apartment immediately and get rid of the cats, she will be evicted.She wants to stay in the apartment.Questions for small group·What interventions should be considered? What are the benefits, risks and limitations ofeach?·What interventions should be tried first and why?·How would you evaluate Mrs. Alvarez’ decision-making capacity and ability to consent toservices?·What ethical issues does the case raise?·What is APS’ role in this case?ADVANCED MODULE 3Version 2-30-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALCase 2 Mr. SmithMr. Smith suffers from severe diabetes. After his wife died four years ago, he stopped followingthe regimen for diabetics his doctor prescribed. He eats mostly snack foods, is overweight, andrefuses to monitor or have others monitor his blood sugar level. He has repeatedly beenreferred to APS but refuses services and has been assessed as marginally able to makedecisions. APS has kept his case open and continued to check in with him occasionally. Thoseworking with him are unsure of whether his lack of self-care is due to apathy, depression orbecause he doesn’t understand what needs to be done.As a result of the uncontrolled diabetes, Mr. Smith developed edema and lesions in his left leg.He was recently admitted to the hospital with a gangrenous foot and his doctors arerecommending amputation. Mr. Smith is refusing to give consent and his physician does notbelieve he understand the risks.Questions for group·What interventions should be considered? What are the benefits and drawbacks of each?·What interventions should be tried first and why?·What factors and criteria should be considered in determining whether Mr. Smith has legaldecision-making capacity?·What ethical issues do the case raise?ADVANCED MODULE 3Version 2-31-7/12/2010

Legal, Ethical, and Best Practice Issues- PARTICIPANT MANUALCase 3: Mrs. WellsMrs. Wells is 78 years old. At 76 she began losing her vision as a result of glaucoma. She is nowtotally blind in one eye and almost blind in the other. She has become increasingly depressedand started drinking heavily. She is unable or unwilling to take medication that her doctorprescribed for the glaucoma and has refused assistance from a home health agency to assistwith the administration of the medication. She has also refused training to help her adapt toher blindness and offers of assistance from the Department for the Visually Handicapped. As aresult, She has not learned how to manage her finances. Six months ago, she agreed to have apersonal care attendant several times a week to shop for her. The attendant fills out the checksand has

Card 3: Legal / Ethical Concerns Write 1-2 sentences about : "Legal issues the case raises "Ethical issues the case raises (to you or others) _ Slide # 9 Card 4: Outcomes Write 1-2 sentences about what you would like to happen. _