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Objectives
To examine issues of care coordination in situations where clients have diminished capacity or mental health challenges, with a focus on abuse, neglect, and self-neglect..
To present a practice based perspective on what some of the challenges can be in day to day practice, and consider one model from BC
To explore these issues from a practitioners perspective with a particular focus on the intersection of legal and psycho-social services.
To provide tools to help responders be prepared for issues which will increase as society faces the upcoming demographic wave).
Outline
Why this is important and some definitions
VANGUARD Project
Re:act a model for assessment and intervention from BC
Journey of Care (three perspectives legal, mental health practitioner, mediator)
Discussion
Questions
Introduction
Coordination of elder care is always a complex issue
When abuse or neglect is part of the picture further complexity is introduced, including legal complexities
When the adult’s capacity is in question still further complexities enter the picture.
Providing best practice care in these situations involves bringing all of the caregivers and players into one integrated process and plan.
Why is This Important
Elder Rights Issue
Well meaning or concerned friends or family members (or those who motives are personal gain) may allege incapability and on that basis may push for services or decisions against the older adults wishes.
Family members or service providers may also try to prevent the adult from making decisions he or she is entitled make without the legal authority to do so in situations where the adult’s decisions is putting him or her at risk of abuse or harm.
This may result in an unnecessary loss of autonomy – especially with society’s ageist beliefs that older adult’s are always forgetful, frail and in need of care. However, this is not always the case.
For example: Dementia – there is an assumption among many that older adults are always forgetful. However, dementia is a disease process. Although there is a higher prevalence rate among older adults (especially with greatly increased age) it is not a part of normal aging
Vulnerability and Capability
People commonly confuse vulnerability and capability.
From a legal perspective, adults have the right to make their own decisions unless incapable. However, this is a very complex area of law with many “grey” issues arising at a practitioner level.
In situations where abuse is occurring or the adult is being neglected or self neglecting how should autonomy and protection of the vulnerable be balanced?
Autonomy and Protection
How do professionals who provide care to older adults with mental health or cognitive challenges balance autonomy and protection?
They have to do with this balancing act within the framework of the law. Laws are different from jurisdiction to jurisdiction.
To be able to do this they need an understanding of the legal framework.
Examples from BC CEAS
Louise Holland, Abandonnment or Automomy: How Do Social Workers Know the Difference? (Masters of Social Work Thesis, University of British Columbia Faculty of Social Work, 2011).
Vanguard Project
Capability
With regard to medical care capability refers to an adult’s ability to do certain tasks. Medical doctors and assessors use a variety of assessment tools to determine capability.
With regard to “legal rights” capability is a legal term. Assessments can inform a legal determination regarding capability but until there has been a legal determination then he or she has the right to make the decision even if the professionals and family members disagree.
Anyone can lose capacity at any age. This could happen through an accident or through a mental health issue. At a later age there is a higher prevalence of dementia and capacity issues can develop slowly over time.
Elder Issues – Capability
CAPABILITY – BASIC LEGAL TEST
Degrees of capability
Fluctuate, increase, decrease
Focussed on specific decisions or kinds of decisions- To enter into a will- To marry- To manage finances- To refuse treatment or admission to care facility- To refuse a support and assistance plan if adult is being abused
or neglected/ self neglected (B.C.)
Elder Issues – Capability & Guardianship
CAPABILITY IS A LEGAL DETERMINATION
Able to understand and appreciate 1. the context of the decision (relevant information)2. the consequences of the decision
Any adult who is capable of making a decision is legally capable of making it even if it is risky or unwise.
See, for example McCullen v McCullen, [2006] 49 R.P.R (4th) 112 (B.C.S.C.).
Elder Issues Capacity and Guardianship
Substitute Decision Makers.
If an adult is legally capable of making a decision he or she has the right to do so. If not a substitute decision maker makes the decision on the incapable older adult’s behalf.
- Authority granted by older adult while still capable pursuant to power of attorney or other advanced planning document.
- Through a court order.
Elder Issues – Capability & Guardianship
ALTHOUGH THE “LEGAL
TEST” IS CLEAR, AT A
PRACTICE LEVEL ISSUES
CAN BE “GREY” DUE TO
CHANGING CAPABILITY
HOWEVER, AS A PERSON
LOSES CAPABILITY
REGARDING A DECISION
AUTONOMY OVER THAT
DECISION BY NECESSITY DESCREASES
Decreasing capability
Autonomy
Vulnerability
“Vulnerability” is a term that refers to vulnerability to abuse or harm. However, there is debate in the literature on who is vulnerable and why a person is vulnerable.
1) One view: Term has been criticized as being paternalistic and for ascribing characteristics to a certain population. As well, if “vulnerability” is defined broadly (eg. all adults over a certain age are vulnerable) the policy response can be to create laws which allow greater intrusion into the lives of those over a certain age.
2) Another view: Vulnerability as situational factors (example: Provincial Strategy Document): Current or historical abuse or neglect Isolation, including both physical and social Lack of supportive family, friends, and other people Lack of education Low income / poverty Absence or uncertainty of citizenship Recent immigration Language barriers Mental health diagnosis Illness Developmental disability Physical challenges or frailty Addiction Other
Vulnerability & Capablity - Laws
Different jurisdictions deal with vulnerability differently. For example, some have mandatory reporting of abuse to adult protection authorities. As well, in different jurisdictions there are different laws regarding guardianship. Some laws are more intrusive and others less intrusive. For a summary of different statutory adult protection regimes in Canada see the Provincial Strategy Document, which is a paper created as part of the VANGUARD research project.
See BC Abuse and Neglect Prevention Collaborative. The Provincial Strategy Document (Vancouver: BC Abuse and Prevention Collaborative, 2009).
BC has no mandatory reporting and civil laws setting out protective measures only apply if the older adult is unable to seek help and assistance on his own.
The BC model, through the approach taken by Vancouver Coastal Health will be used as a case study of these concepts later in our presentation
VANGUARD
2 YEAR RESEARCH PROJECT Commissioned by groups of organizations,
professional bodies and policy makers who deal with older adults who have capability challenges.
The research project, focusing on the legal aspects, examined abuse and neglect on the capability to non capability continuum. Researchers: Charmaine Spencer and the BC Law Institute.
The “Collaborative” remained actively involved and discussed practice based issues on an ongoing basis.
VANGUARD OUTCOMES
Summary of the law on capability and adult protection in Canada.
Recommendations for interagency response, and policy and protocol development going forward.
A foundational understanding for building future educational tools and developing intra-agency and cross – agency protocols.
A two year multi-disciplinary “consensus building discussion” of effective service delivery.
Legal research tools: matrix, charts, legal summaries, etc.
VANGUARD TOOLS
Given the lack of clarity on this issue tools coming out of the VANGUARD Project can be used as tools to clarify key concepts for those working in the area of mental health
Introduction
VANGUARD defined the term as:
- A social construct
- Not an inherent quality or individual flaw
- Vulnerability is based on social factors
VANGUARD TOOLS
Mary
Indira
More Vulnerable
More Capable
This slide is credited to the VANGUARD Project’s “Provincial Strategy Document”.
VANGUARD TOOLS (CONT’D)
MARY’S STORY
75 years old, rural community
MS, but no cognitive impairments
Long-time domestic abuse and violence – physical, sexual, gas-lighting
Son takes advantage – POA – abuse
Little control, little safety
Highly vulnerable, but capable
VANGUARD TOOLS CONTINUED
INDIRA’S STORY
80 years old, urban setting, excellent residential care home
Friends and family – listen to her values, wishes, lifestyle
Comfortable assets, held safely
Low capability, low vulnerability
Introduction to Next Section
One of the things that is unique about the British Columbia context is that the health authority “wears two hats”.
1) It provides health services to all older adults.
2) It has been designated to respond to reports of abuse but only where the person may not be able to seek help an assistance on his or her own. In that situation, the health authority then puts on an investigative “adult protection” hat.
Introduction to New Section (cont)
In BC the health authority has been given this role of responding to abuse under statute, Adult Guardianship Act Part 3. S. 44, explains that the mandate applies to:adults who are abused or neglected and who are unable to seek support and assistance because of:(a) physical restraint, (b) a physical handicap that limits their ability to seek help, or(c) an illness, disease, injury or other condition that affects their ability to make decisions about the abuse or neglect.
BC laws take a “middle ground approach”. However, this can lead to confusion among health authority workers who are providing healthcare to the entire population, including those with mental health problems that are capable, but have this secondary investigation and intervention role with those who cant seek assistance on their own.
Having both roles in one agency is unique, and we are going to discuss the issue of coordinated care in the BC context as it is an interesting illustration of these issues.
Re:act - Two Pivotal Questions
1. Is the adult abused, neglected , or self neglecting?
2. Are they able to seek support and assistance?
Role of the Designated Responder
Document at each step
Interview the adult
Assess the urgency of the situation
Coordinate the collection of collateral
Coordinate the assessment of abuse, neglect or self-neglect
Role of the Designated Responder (cont’d)
Coordinate the assessment of ability to seek/refuse support and assistance
Determine if the adult has a Representative, Committee, or Power of Attorney
Coordinate the development of a care plan to provide support and assistance
SUPPORT AND ASSISTANCE PLAN
SECTION 1 – DESIGNATED AGENCY INFORMATION - Who is making the plan and who will be responsible for follow up
SECTION 2 – PERSONAL INFORMATION AND CONTACT PEOPLEDemographics, contact information, communication information, living situation SECTION 3 – REASON FOR THE SUPPORT AND ASSISTANCE PLANdetails of the abuse/neglect/self-neglect, details about factors affecting ability to make decisions about it SECTION 4 – SIGNIFICANT PEOPLE IN THE ADULT’S LIFEFormal substitute decision makers (full information about each) & support people: family, friends, advocates, service providers SECTION 5 – GETTING TO KNOW THE ADULTThe person’s history, Strengths and accomplishments, Interests values and beliefsThe adult’s wishes with regard to the situation
SUPPORT AND ASSISTANCE PLAN (cont’d)
SECTION 6 – SUPPORT AND ASSISTANCE Who was involved in the development of the plan Details of each support and assistance offered
Description of service and length of time offered Reason for offering this service Consequences to the adult of refusing the service Person responsible for implementation and follow up for this service
SECTION 7 – CONCLUSIONS Was the adult involved or was the plan as fully explained as possible Outcome:
accepted by the adult
not accepted but the situation is resolved
not accepted and the adult is believed to be capable of making this decision
not accepted, and they are believed to be incapable of making this decision, and there is abuse, neglect, or self neglect and the case is being forwarded to the Public Guardian and Trustee for an assessment of incapability and to determine if a Court Order for support and assistance should be pursued.
Role of the Designated Responder (cont’d)
Advise the most responsible physician of the situation and actions taken
Make reports as necessary to the PGT
Report crimes to police
Keep the identity of the person who made the report confidential
Use the tools in the legislation as a last resort if the S & A is refused
Adult Guardianship Legislation - BC
Power to investigate
Access order
Warrant to enter for purpose of interview
Interim restraining order
Support and assistance order
Emergency provisions – including apprehension
Introduction to Journey Legal Perspective
Lawyers are concerned:
About the legal rights of their clients
That relevant legislation (laws) are followed
About representing the legal interests of their client
Lawyers may care deeply about the social and medical needs of the older adult but may be restrained by their professional duties.
This perspective frames the way a lawyer looks at care planning and decisions.
Likewise the lawyer’s role will affect how the lawyer is involved and what he or she can do. Is the lawyer representing a client, or is the lawyer representing the health authority?
Introduction to JourneySocial Work Perspective
Autonomy of capable individualsThe CASW Code of Ethics:
Value # 1: Social work is founded on a long-standing commitment to respect the inherent dignity and individual worth of all persons. When required by law to override a client’s wishes, social workers take care to use the minimum coercion required.
Principles: Social workers uphold each person’s right to self-determination, consistent with that person’s
capacity and with the rights of others.
Social workers uphold the right of society to impose limitations on the self-determination of individuals, when such limitations protect individuals from self-harm and from harming others.
Social workers respect the client’s right to make choices based on voluntary, informed consent.
Social workers uphold the right of every person to be free from violence and threat of violence.
Value # 3: In professional practice, social workers balance individual needs, and rights and freedoms with collective interests in the service of humanity.
Incapable
Fluctuating or partial incapability
Needs support but cognitively capable
Coordinated care – differing levels of support and intervention
Prevalence
Intrusion
Legal Intervention
Adult Protection Measures (example: investigation)
Community and Health Supports
Support services continue throughout
Legal and Social Work aspects continue throughout
Client and family meetingPension etc. applications
Financial and Banking PlansCare Facility Lists
Connect to community supportsPowers of Attorney, Representation Agreements, Wills,
Guardianship for minor children
Capable Adult• all care planning and intervention is
voluntary• Abuse and neglect addressed with the
adult• adult can refuse any plans offered
Informal adaptationsSupport and Assistance PlansClient, Family and Collateral MeetingsPowers of Attorney, Representation Agreements, Mediation, Mental Health Act Certification
Fluctuating or partial capability • Some protective measures need to be
considered…. Investigations of abuse/neglect and of capability
• Adult may be able to accept/refuse plans in one area and not in others
Caregiver Support
Placement Advocacy
Follow up for court orders
Committee, Support and Assistance Orders
Incapable Adult • Proper Assessment and legal decision must be
considered if there is abuse and neglect• Include as much as possible the adults previously
expressed values, beliefs, and choices• Adult is not able to accept or refuse plans put in
place
Assessments, Tools, and Guidelines
Capacity Assessment requires a coordinated and multi-disciplinary response
Must always include assessment of cognitive and executive function, and then assessment of capacity in a specific area
Multiple sources including self report from the adult, collateral reports, and objective measures
Must include a careful identification of the tasks/issues for which capability is being considered
Must be clearly documented and have standard components in accord with the applicable local laws
Tools
Specific tools: 3MS, MMS, PGT Functional and Decision Making Form for PPA, Brief Abuse Screen for Elderly, Elder Abuse Suspicion Index, Caregiver Abuse Screen, Frontal Behavioural Inventory, MOCA
Which tools you choose will depend on what you are specifically assessing and what your professional discipline is. It’s important to have a basic understanding of tools you may not use yourself so that you can consider their findings knowledgeably
http://www.vchreact.ca/resources.htm
The Vancouver Coastal Health Re:act program web site as many great resources
Capability and Consent Tool (gives various different types of consent situations, along with their various criteria, relevant statutes, and who assesses them) – this is specific to British Columbia but you can develop one for your own area
The VCH Quick Assessment Guide (designed for physicians and anyone else working with elders to consider the issue of abuse, neglect, self neglect)
The Re:act manual for VCH staff to assist them in dealing with adult abuse and neglect
Guidelines
Available at www.vchreact.ca
Clinical Assessment Tools VCH Quick Assessment Guide Brief Abuse Screen for the Elderly (BASE) Frontal Behavioral Inventory (FBI) Geriatric Depression Scale Indicators of Abuse Screen Lawton and Brody IADL Scale The Caregiver Abuse Screen (Reis-Nahmiash CASE) Capability and Consent Tool - BC Edition
Journey of Care – Elder Mediation
Another Example of Capacity & Abuse; Autonomy & Protection in a Practice Situation.
Elder mediation has been noted as a promising approach. Rather than going to court to resolve disputes about capacity, guardianship, care, etc. these issues can be resolved by the family and other care givers with the help of a neutral third party (mediator)
However, even though this approach has promises concern has been expressed in the literature, especially around issues of guardianship and vulnerability and specialized training has been recommended for elder mediators.
Elder Mediation
Experts agree that older adults with capability issues should participate in mediation to the maximum degree possible. Accommodation may be needed such as attendance of a support person, shorter sessions, scheduling mediations at certain times of day, etc.
Although the mediator’s role is to assess capability to participate there may be decisions within the mediation that the older adult does not have the capability to decide. This is an area where more research as needed as there is insufficient guidance to mediators on this issue and there are many ethical issues that may arise related to abuse or capacity that the elder mediator should have policies and best practices in place to deal with.
Elder Mediation
Key Strategies for dealing with abuse/ capacity
Pre-mediation meetings
See, for example, Joy Anne Braun, Child Protection Mediation: Mediator Strategies for Managing the Process (MSW Thesis, University of British Columbia, 2007
Screening
Training and practice standards
Considering Your Practice
Ongoing review of your own practice allows you to continually improve your ability to assist people with diminished capacity
Considering Your PracticeWhen confronted with adult abuse, neglect, or self neglect:
1. I have a clear understanding of what the care need/service request is
2. I have assessed whether there is an issue of abuse, neglect, or self neglect involved
3. I have solicited and considered the wishes of the adult (whether capable or not)
4. I have received a comprehensive assessment of the adult’s cognitive, executive, and functional capabilities in instances where capacity is questioned, including the rationale for recommendations of (in)capacity
5. I have solicited and considered the wishes of the adult’s informal and natural supports (both their ability and their wishes) to the extent that I am allowed by law/indicated by the situation
6. My plan involves the least intrusive, most effective interventions appropriate and available to the situation
7. I have a clear written plan of care, including who will be responsible for each area and what will happen if the plan is not implemented in that area
8. I have a specific timeline for the review and revision of the plan.
9. If I am considering a formal legal intervention I am considering the least intrusive option that will meet the needs of the adult and have facilitated provision of legal counsel to the adult.
COORDINATED CARE PLANING
When putting together a coordinated care plan six guiding questions can be used (Adapted from slides by Arlene Groh):
1. Why is the situation causing concern/what is the concern?
2. How do I (the service provider) feel about the situation?
3. What are the relevant factors (including vulnerability and capability)?
4. What are the service options/legal requirements?
5. What are the values, wishes, and goals of the client?
6. What is the response?
Are there any legal considerations or services in this case?
Case Example
Lydia Delacourte is 64 years old, married and has three grown children. She is close to her younger daughter but she lives in another town which is a short drive away from her home. She has been estranged from her son for ten years. Her oldest daughter has demonstrated a history of physical violence to her siblings and parents, and stole a significant amount of money from her mom. The oldest daughter, lived next door until recently when she moved away after a physical alteration with her mom. Three months later Lydia shows up at a health clinic stating that she is quite depressed. Other than her depression she seems to be functioning well both physically and mentally.
CASE EXAMPLE – Stage 1
Concerns and Considerations from social work and legal perspectives.
Social Work:
The key questions from Re:act
1) Is she abused or neglected?
2) Is she capable of making decisions in the area of concern?
Case Example – Stage 1
Any services are going to be voluntary
Assess her level of depression (which is her presented concern), and consider general health concerns, review of medication
Discuss recent situation, what has changed, particularly is she feeling safe, how does she feel about her current situation, is there anything that she can identify that would help
Consider natural and community supports (younger daughter, friends, extended family faith community)
Consider her day to day activities and connection to community/others
Consider referral to family doctor or other caregiver to treat depression
Case Example (cont’d) Lydia is now 75. She is widowed and remains close to her younger daughter.
Her daughter phones several times a week and visits once a week.
Her daughter has become concerned because a neighbour has called to say that her mother left the stove on when she went to the grocery recently and set off the smoke detector (although there was no major damage to the apartment). Lydia has also been complaining about her arthritis and that it is difficult to get to the grocery and the bank. She told her daughter that a nice young man from down the hall had offered to do these tasks for her and that she had given the young man her bank card to do the shopping. When asked about the bank card she told her daughter that there was only a small amount of money in the account so she was not worried about giving the man her card.
Lydia’s problems with depression have increased over the past few years, but now she also seems to be having problems with short term memory.
CASE EXAMPLE – Stage 2
Concerns and Considerations from social work and legal perspectives.
Social Work:
The key questions from Re:act
1) Is she abused or neglected?
2) Is she capable of making decisions in the area of concern?
Case Example – Stage 2
Social Work:
Assume Capacity and discuss with Lydia the fire and her financial arrangements
Determine whether there is an issue of abuse or neglect to be dealt with.
Consider three formal assessments (depression, IADL’s, Financial interview) depending on what Lydia says in the interview
Develop a plan for Lydia, with her consent if capable, only involving the PGT if absolutely necessary (e.g. if her financial safety can’t be secured in any other manner or her cognitive functioning/memory is impaired to the point that she needs to be placed against her will)
Consider a formal support and assistance plan if it appears that Lydia refuses supports and it looks like court intervention may be necessary
Case Example (cont’d)
Lydia is now 85. She still lives on her own but you (the service provider) have received a couple of calls from concerned members of the community. The bank service manager called to say that a neighbour has been coming to the bank to help Lydia with transactions and that Lydia seems confused sometimes and may be under the influence of the neighbour. Lydia receives support from a home care worker to help with household tasks but she needs more assistance than she receives from her support worker due to several physical ailments. She also has moderate dementia.
Her younger daughter comes over once a week to provide her mom with assistance and calls regularly. She has noticed that recently her mom is very secretive about her money and her relationship with the neighbour. The daughter discovered that the neighbour has been visiting her home several times a week and that Lydia has given him money. Lydia does not have any other friends. Lydia’s oldest daughter has reappeared in town and also has visited Lydia several times over the objections of the younger daughter who fears for mom’s safety.
The daughter tried to speak to Lydia about the situation and to express concerns about Lydia’s safety. She tried to propose Lydia move somewhere else where she could get additional support. However, Lydia became very angry, said she was fine and that she did not want any help or interference. She then did not speak to her youngest daughter for a few days. The younger daughter has now called you to discuss the situation.
CASE EXAMPLE – Stage 3
Concerns and Considerations from social work and legal perspectives.
Social Work:
The key questions from Re:act
1) Is she abused or neglected?
2) Is she capable of making decisions in the area of concern?
Case Example – Stage 3
Concerns and Considerations from social work and legal perspectives.
Social Work:
Daughter has called me.. Get as much collateral as I can from her
Interview Lydia and consider formal capacity assessments: MMS, Frontal Behavioural Index, Financial capacity interview
If capable, work with Lydia to come up with a support and assistance plan (and lobby with service funders to provide adequate home care)
If incapable, apply through PGT for a financial SDM, consider certification under MHA if suitable care cannot be negotiated
Depending on the situation with the daughter consider AGA options to keep her away from Lydia (although these would have to be enforced by someone else if Lydia is not capable)