Presentation Transcript

1. Presented byHarold S. Bartholomew, Jr.Assistant District Attorney:Elder Abuse Protection Unit22nd Judicial DistrictWalter P. Reed, District Attorney

   Elder Abuse:Social WORKER trackethics

2. World Elder Abuse Awareness Day 2012June 11, 2012 The opinions expressed herein are not necessarily the opinions of the District Attorney’s Office. Each and every case is evaluated in light of the facts particular to that case.
3. The aging of America Between 1950 & 2000, the total population increased by 87% Age 65+ - by 188% 85+ - by 635% By 2030 - 65+ will triple to over 70 million
4. Percent of Total Population Age 65 and Over: 1900 to 2000 Source: U.S. Census Bureau, decennial census 1900 to 2000
5. A growing Elderly population Source: U.S. Census Bureau
6. Population Growth Source: U.S. Census Bureau.
7. Mandatory Reporting La. R.S. 14:403.2 C. Any person, including but not limited to a health, mental health, and social service practitioner, having cause to believe that an adult's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation shall report in accordance with Subsection D of this Section.
8. Mandatory Reporting La. R.S. 14:403.2 requires reporting of abuse by ANY PERSON “having cause to believe.” Failure to report is punishable by up to six months imprisonment and/or a five-hundred dollar fine.
9. Who do I call? R.S. 15:1505.  Contents of report and agency to receive report Report shall be made to any adult protection agency or to any local or state law enforcement agency. Need not name the persons suspected Contain, name and address of the adult, the name and address of the person responsible for the care of the adult, if available, and any other pertinent information.
10. To Contact EPS New Orleans Region Phone: (504) 832-1644 Toll Free (In-state only): 1-800-673-4673 Fax: (504) 835-0409 State office Hotline: 800-259-4990 http://goea.louisiana.gov http://goea.louisiana.gov/index.cfm?md=pagebuilder&tmp=home&pid=5&pnid=2&nid=16
11. Office of Aging and Adult Services The Office of Aging and Adult Services (OAAS), Adult Protective Services (APS) DHH as the agency responsible for carrying out the mandate of 14:403.2 with regard to adults with disabilities ages 18-59 (225) 342-9057 or (800) 898-4910  Fax (225) 342-9069 http://www.dhh.state.la.us/offices/Default.asp?ID=95&Print=1
12. Investigation R.S. 15:1507.  Investigation of reports, assessment, actions taken, and court orders Elderly Protective Services or Dept. Health & Hospitals (fact dependent) shall investigate Face to face interview with adult Access to any records or documents, including client-identifying information and medical, psychological, criminal or financial records necessary… Agency is exempt from payment of fees for records
13. Understanding the Dynamics Fears of many seniors Leads to underreporting Feelings of shame Concern that exposure will lead to loss of independence Sometimes accompanied by threats from perpetrator
14. Most Common Forms of Abuse Of substantiated reports Self-neglect was the most common 37% Caregiver neglect 20% Financial exploitation 15%
15. Lessons learned from Domestic Violence and Child Abuse Self-determination is not the answer If not punished, the perpetrator WILL abuse again We CAN convict even without the assistance of the victim Abuse is a crime against not just the abused but the taxpayers and the family of the victim
16. No one is beyond abuse 65.7% female 42.8% were over 80 years of age 89.3% in domestic settings 6.2% of substantiated reports were in long-term care settings,
17. Who Are The Perpetrators? 53% of alleged perpetrators were female 75% of alleged perpetrators under 60 Most common relationships adult child 33% other family member 22%
18. Code Of Ethics Code of Ethicsof the National Association of Social Workers Approved by the 1996 NASW Delegate Assembly and revised by the 2008 NASW Delegate Assembly http://www.socialworkers.org/pubs/code/code.asp
19. Ethical Principles The following broad ethical principles are based on social work’s core values of service, social justice, dignity and worth of the person, importance of human relationships, integrity, and competence. These principles set forth ideals to which all social workers should aspire.
20. Value: Service Ethical Principle: Social workers’ primary goal is to help people in need and to address social problems.
21. Value: Social Justice Ethical Principle: Social workers challenge social injustice.
22. Value: Dignity and Worth of the Person Ethical Principle: Social workers respect the inherent dignity and worth of the person.
23. Value: Importance of Human Relationships Ethical Principle: Social workers recognize the central importance of human relationships.
24. Value: Integrity Ethical Principle: Social workers behave in a trustworthy manner
25. Value: Competence Ethical Principle: Social workers practice within their areas of competence and develop and enhance their professional expertise.
26. Ethics and the Elderly More than half of abuse is self-neglect or committed by family Social Workers are arguably the best situated to prevent, minimize and treat the results of these problems
27. Ethical Standards The following ethical standards are relevant to the professional activities of all social workers. These standards concern (1) social workers’ ethical responsibilities to clients, (2) social workers’ ethical responsibilities to colleagues, (3) social workers’ ethical responsibilities in practice settings, (4) social workers’ ethical responsibilities as professionals, (5) social workers’ ethical responsibilities to the social work profession, and (6) social workers’ ethical responsibilities to the broader society. Some of the standards that follow are enforceable guidelines for professional conduct, and some are aspirational. The extent to which each standard is enforceable is a matter of professional judgment to be exercised by those responsible for reviewing alleged violations of ethical standards.
28. 1. SOCIAL WORKERS’ ETHICAL RESPONSIBILITIES TO CLIENTS 1.02 Self ­Determination 1.06 Conflicts of Interest 1.07 Privacy and Confidentiality 1.14 Clients Who Lack Decision­Making Capacity
29. 1.02 Self ­Determination Social workers respect and promote the right of clients to self-determination and assist clients in their efforts to identify and clarify their goals. Social workers may limit clients’ right to self­-determination when, in the social workers’ professional judgment, clients’ actions or potential actions pose a serious, foreseeable, and imminent risk to themselves or others.
30. A Note on Visitors The Elderly Person Is Always In Charge Of Visitors NOT a relative NOT a person with Power of Attorney Only where Committed or Interdicted does this change
31. 1.06 Conflicts of Interest Hard to spot Where lawyers get into a lot of trouble
32. 1.06 Conflicts of Interest (a) Social workers should be alert to and avoid conflicts of interest that interfere with the exercise of professional discretion and impartial judgment. Social workers should inform clients when a real or potential conflict of interest arises and take reasonable steps to resolve the issue in a manner that makes the clients’ interests primary and protects clients’ interests to the greatest extent possible. In some cases, protecting clients’ interests may require termination of the professional relationship with proper referral of the client.
33. 1.06 Conflicts of Interest (b) Social workers should not take unfair advantage of any professional relationship or exploit others to further their personal, religious, political, or business interests.
34. 1.06 Conflicts of Interest (c) Social workers should not engage in dual or multiple relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client. In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries. (Dual or multiple relationships occur when social workers relate to clients in more than one relationship, whether professional, social, or business. Dual or multiple relationships can occur simultaneously or consecutively.)
35. 1.06 Conflicts of Interest (d) When social workers provide services to two or more people who have a relationship with each other (for example, couples, family members), social workers should clarify with all parties which individuals will be considered clients and the nature of social workers’ professional obligations to the various individuals who are receiving services. Social workers who anticipate a conflict of interest among the individuals receiving services or who anticipate having to perform in potentially conflicting roles (for example, when a social worker is asked to testify in a child custody dispute or divorce proceedings involving clients) should clarify their role with the parties involved and take appropriate action to minimize any conflict of interest.
36. 1.06 Conflicts of Interest Let’s discuss: Gifts? How big is too big? How big will a family member see as too big? How big will law enforcement see as too big? Family Members Get close to Elder and their adult child?
37. Undue Influence Louisiana recognizes the concept of undue influence in La. C. C. Art. 1479. A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor.
38. Warning Signs of Undue Influence Isolation of elder from social contact, family, friends Control of elder’s mail, phone calls, visitors, outings Promises to elder she/he will be taken care of for life Elderly Protective Services will investigate complaints of Isolation
39. 1.07 Privacy and Confidentiality (e) Social workers should discuss with clients and other interested parties the nature of confidentiality and limitations of clients’ right to confidentiality. Social workers should review with clients circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. This discussion should occur as soon as possible in the social worker ­client relationship and as needed throughout the course of the relationship.
40. 1.07 Privacy and Confidentiality Does 1.07 allow disclosure to EPS? Nursing Home Ombudsmen? The Office of Aging and Adult Services (OAAS), Adult Protective Services (APS) DHH? Mandatory Reporting and “disclosure of confidential information may be legally required. “
41. 1.14 Clients Who Lack Decision­Making Capacity When social workers act on behalf of clients who lack the capacity to make informed decisions, social workers should take reasonable steps to safeguard the interests and rights of those clients. Reporting? Interdiction? Discussion?
42. C.C. Art. 362.  Persons subject to interdiction. Persons subject to mental or physical illness or disability, whether of a temporary or permanent nature, of such a degree as to render them subject to interdiction, under the provisions of Title IX hereof, remain subject to interdiction as provided in Articles 389 to 399, inclusive, and such other laws as may relate thereto. Acts 1966, No. 496, §2.
43. Art. 389.  Full interdiction A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.
44. Art. 390.  Limited interdiction A court may order the limited interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity is unable consistently to make reasoned decisions regarding the care of his person or property, or any aspect of either, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.
45. Art. 391.  Temporary and preliminary interdiction When a petition for interdiction is pending, a court may order a temporary or preliminary interdiction when there is a substantial likelihood that grounds for interdiction exist and substantial harm to the health, safety, or property of the person sought to be interdicted is imminent.
46. Ask yourself Does it feel right? Not just ‘not wrong’ but “right” Would I be proud of this on the front page of the paper?
47. Over 50% Of Perpetrators are Family Caregiver Stress, Is There Help?
48. Caregiver Stress and Elder Abuse Caregiver Stress and Elder Abuse Lisa Nerenberg, M.S.W., M.P.H This publication was produced under a contract with the Institute on Aging for the National Center on Elder Abuse. The NCEA is funded by grant No. 90-AP-2144 from the U.S. Administration on Aging, and consists of six partner organizations: National Association of State Units on Aging, which is the lead agency: Commission on Legal Problems of the Elderly of the American Bar Association; the Clearinghouse on Abuse and Neglect of the Elderly of the University of Delaware; the San Francisco Consortium for Elder Abuse Prevention of the Institute on Aging; National Association of Adult Protective Services Administrators; and National Committee for the Prevention of Elder Abuse. www.ncea.aoa.gov/main_site/pdf/family/caregiver.pdf
49. National Center on Elder AbuseFact Sheet Caregivers can: ■ Get help. Making use of social and support services, including support groups, respite care, home delivered meals, adult day care and assessment services, can reduce the stress associated with abuse. ■ Learn to recognize their “triggers,” those factors that cause them the greatest stress or anxiety.
50. National Center on Elder AbuseFact Sheet ■ Learn to recognize and understand the causes of difficult behaviors and techniques for handling them more effectively. ■ Develop relationships with other caregivers. Caregivers with strong emotional support from other caregivers are less likely to report stress or to fear that they will become abusive. ■ Get healthy. Exercise, relaxation, good nutrition and adequate rest have been shown to reduce stress and help caregivers cope. ■ Hire helpers. Attendants, chore workers, homemakers or personal care attendants can provide assistance with most daily activities. Caregivers who cannot afford to hire helpers may qualify for public assistance. ■ Plan for the future. Careful planning can relieve stress by reducing uncertainty, preserving resources and preventing crises. A variety of instruments exist to help plan for the future including powers of attorney, advanced directives for health care, trusts and wills.
51. http://www.ncea.aoa.gov/ncearoot/Main_Site/index.aspx
52. http://www.ncea.aoa.gov/NCEAroot/Main_Site/Find_Help/State_Resources_Directory.aspx?state_id=la http://www.ncea.aoa.gov/NCEAroot/Main_Site/Find_Help/State_Resources_Directory.aspx?state_id=la
53. Caregiver Ethics Is There Guidance?
54. A Code Of Ethics
55. Rule 1 - Decision-Making: General Principles: Rule 1 - Decision-Making: General Principles: A GUARDIAN SHALL EXERCISE EXTREME CARE AND DILIGENCE WHEN MAKING DECISIONS ON BEHALF OF A WARD. ALL DECISIONS SHALL BE MADE IN A MANNER WHICH PROTECTS THE CIVIL RIGHTS AND LIBERTIES OF THE WARD AND MAXIMIZES INDEPENDENCE AND SELF-RELIANCE.
56. 1.1 The guardian shall make all reasonable efforts to ascertain the preferences of the ward, both past and current, regarding all decisions which the guardian is empowered to make. 1.2 The guardian shall make decisions in accordance with the ascertainable preferences of the ward, past or current, in all instances except those in which a guardian is reasonably certain that substantial harm will result from such a decision.
57. 1.3 When the preferences of the ward cannot be ascertained, a guardian is responsible for making decisions which are in the best interests of the ward. 1.4 The guardian shall be cognizant of his or her own limitations of knowledge, shall carefully consider the views and opinions of those involved in the treatment and care of the ward, and shall also seek independent opinions when necessary.
58. 1.5 The guardian must recognize that his or her decisions are open to the scrutiny of other interested parties and, consequently, to criticism and challenge. Nonetheless, the guardian alone is ultimately responsible for decisions made on behalf of the ward. 1.6 A guardian shall refrain from decision making in areas outside the scope of the guardianship order and, when necessary, assist the ward by ensuring such decisions are made in an autonomous fashion.
59. Rule 2 - Relationship Between Guardian and Ward: THE GUARDIAN SHALL EXHIBIT THE HIGHEST DEGREE OF TRUST, LOYALTY, AND FIDELITY IN RELATION TO THE WARD.
60. 2.1 The guardian shall protect the personal and pecuniary interests of the ward and foster the ward’s growth, independence and self reliance to the maximum degree. 2.2 The guardian shall scrupulously avoid conflict of interest and self-dealing in relations with the ward. 2.3 The guardian shall vigorously protect the rights of the ward against infringement by third parties. 2.4 The guardian shall, whenever possible, provide all pertinent information to the ward unless the guardian is reasonably certain that substantial harm will result from providing such information.
61. Rule 3 - Custody of the Person; Establishing a Place of Abode: THE GUARDIAN SHALL ASSUME LEGAL CUSTODY OF THE WARD AND SHALL ENSURE THE WARD RESIDES IN THE LEAST RESTRICTIVE ENVIRONMENT AVAILABLE.
62. 3.1 The guardian shall be informed and aware of the options and alternatives available for establishing the ward’s place of abode. 3.2 The guardian shall make decisions in conformity with the preferences of the ward in establishing the ward’s place of abode unless the guardian is reasonably certain that such a decision will result in substantial harm.
63. 3.3 When the preferences of the ward cannot be ascertained or where they will result in substantial harm, the guardian shall make decisions with respect to the ward’s place of abode which are in conformity with the best interests of the ward. 3.4 The guardian shall not remove the ward from his or her home or separate the ward from family and friends unless such removal is necessary to prevent substantial harm. The guardian shall make every reasonable effort to ensure the ward resides at home or in a community setting.
64. 3.5 The guardian shall seek professional evaluations and assessments wherever necessary to determine whether the current or proposed placement of the ward represents the least restrictive environment available to the ward. The guardian shall work cooperatively with community based organizations which may be available to assist in ensuring that the ward resides in a non-institutional environment. 3.6 The guardian shall have a strong preference against placement of the ward in an institution or other setting which provides only custodial care.
65. 3.7 The guardian shall monitor the placement of the ward on an on-going basis to ensure its continued appropriateness, and shall consent to changes as they become necessary or advantageous for the ward. 3.8 In the event that the only available placement is not the most appropriate and least restrictive, the guardian shall advocate for the ward’s rights and negotiate a more desirable placement with a minimum of delay, retaining legal counsel to assist if necessary.
66. Rule 4 - Custody of the Person: Consent to Care, Treatment and Services THE GUARDIAN SHALL ASSUME RESPONSIBILITY TO PROVIDE INFORMED CONSENT ON BEHALF OF THE WARD FOR THE PROVISION OF CARE, TREATMENT AND SERVICES AND SHALL ENSURE THAT SUCH CARE, TREATMENT AND SERVICES REPRESENTS THE LEAST RESTRICTIVE FORM OF INTERVENTION AVAILABLE
67. 4.1 The guardian shall make decisions in conformity with the preferences of the ward when providing consent for the provision of care, treatment and services, unless the guardian is reasonably certain that such decisions will result in substantial harm to the ward. 4.2 When the preferences of the ward cannot be ascertained or will result in substantial harm, the guardian shall make decisions with respect to care, treatment and services which are in conformity with the best interests of the ward.
68. 4.3 In the event the only available treatment, care or services is not the most appropriate and least restrictive, the guardian shall advocate for the ward’s right to a more desirable form of treatment, care or services, retaining legal counsel to assist if necessary. 4.4 The guardian shall seek professional evaluations and assessments whenever necessary to determine whether the current or proposed care, treatment and services represent the least restrictive form of intervention available.
69. 4.5 The guardian shall work cooperatively with individuals and organizations which may be available to assist in ensuring the ward receives care, treatment and services which represent the least restrictive form of intervention available and are consistent with the wishes or best interests of the ward. 4.6 The guardian shall not consent to sterilization, electro-convulsive therapy, experimental treatment or service without seeking review by the court or the ward’s attorney or other representative.
70. 4.7 The guardian shall be familiar with the law of the state regarding the withholding or withdrawal of lifesustaining treatment. 4.8 The guardian shall monitor the care, treatment and services the ward is receiving to ensure its continued appropriateness, and shall consent to changes as they become necessary or advantageous to the ward.
71. Rule 5 - Management of the Estate: THE GUARDIAN OF THE ESTATE SHALL PROVIDE COMPETENT MANAGEMENT OF THE PROPERTY AND INCOME OF THE ESTATE. IN THE DISCHARGE OF THIS DUTY, THE GUARDIAN SHALL EXERCISE INTELLIGENCE, PRUDENCE AND DILIGENCE AND AVOID ANY SELF-INTEREST.
72. 5.1 Upon appointment, the guardian shall take steps to inform himself or herself of the statutory requirements for managing a ward’s estate. 5.2 The guardian shall manage the income of the estate with the primary goal of providing for the needs of the ward, and in certain cases, the needs of the ward’s dependents for support and maintenance.
73. 5.3 The guardian has a duty to exercise prudence in the investment of surplus funds of the estate. 5.4 Where the liquid estate of the ward is sufficient, the guardian may make such gifts as are consistent with the wishes or past behavior of the ward, bearing in mind both the foreseeable requirements of the ward and the tax advantages of such gifts.
74. 5.5 There shall be no self-interest in the management of the estate by the guardian; the guardian shall exercise caution to avoid even the appearance of self-interest.
75. Role of Elderly Protective Services and Law Enforcement
76. Elderly Protective Services Elderly Protective Services acts to prevent, remedy, halt or hinder acts of abuse and neglect against an elder adult in the community, while promoting the maximum possible degree of personal freedom, dignity and self-determination. Only when other efforts fail will EPS recommend referral or admission to an appropriate care facility for the elder adult, or Seek judicial remedy to the situation, DA can file restraining order.
77. Records Available to EPS The statute also makes certain records available to Elderly Protective Services without an authorization or warrant. Note that E.P.S. does not pay a copying charge.
78. Investigation R.S. 15:1507.  Investigation of reports, assessment, actions taken, and court orders Elderly Protective Services or Dept. Health & Hospitals (fact dependent) shall investigate Face to face interview with adult Access to any records or documents, including client-identifying information and medical, psychological, criminal or financial records necessary… Agency is exempt from payment of fees for records
79. The following slides on what EPS does and does not do are taken from the presentation of Ms. Lutricia McDonald done at the St. Tammany SALT sponsored World Elder Abuse Day Seminar in June 2009. Please see her entire presentation available on the St. Tammany SALT web site.
80. What EPS Does: Locate and refer individuals to community agencies and facilities that offer the services they need. When necessary, advocate ( that is recommend, support and /or defend their rights.)
81. What EPS Does: Provide short-term, limited , case management services. That is monitor the case for stability Work with law enforcement to provide protection
82. What EPS Does: Work with the judiciary system to remedy problems that require legal action from the D.A. or Judge when legal intervention is warranted. Methods of Legal intervention are
83. What EPS Does: Order to Enter Home Interdiction - full/limited Order for Injunctive Relief- Restraining Order
84. What EPS Does: Order for Mandatory Counseling Order for Medical/Psychiatric/Psychological Evaluation Power of Attorney Admission by Emergency Certificate Order for Protective Custody
85. What EPS Does: Judicial Commitment Protective Service Order- temporary custody by EPS to place elder in a protected environment until a more permanent solution can be arranged. Provide information and referral service to individuals who do not meet the criteria for elderly protective services.
86. What EPS does not do: EPS does not remove elders from their homes against their will unless it is determined that they are a danger to themselves or others. If this is determined, our office request an Order for Protective Custody from the Coroner or a District Judge and if granted, the elder is transported by a law enforcement officer to a facility for evaluation and/or treatment.
87. What EPS does not do: EPS does not force nursing home placement unless a doctor/psychiatrist determines that the elder is no longer mentally capable of making decisions, there is no family member/s available or willing or capable of caring for the elder and a court of law deems the elder incapable of caring for themselves or having the mental capacity to know.
88. What EPS does not do: EPS does not provide discharge planning for medical or other facilities.
89. What EPS does not do: EPS does not provide crisis intervention on an emergency basis. Not on 24 hour call.
90. Law Enforcement Law Enforcement may receive calls from EPS, DHH, other government agencies, nursing homes, social workers, physicians, or private individuals. There are many special laws protecting the elderly.
91. Elder Abuse is Exploding Fastest growing age group No known cure for dementia Victims often do not report Third fastest growth job is home care Minimal background checks High temptation, low risk
92. Multiple criminal statutes apply specifically to elderly victims 14:35.2 Simple battery of the infirm. Minimum 30 days 14:42 Aggravated Rape. 14:50.2 Perpetration or attempted perpetration of certain crimes of violence against a victim sixty-five years of age or older. Adds 3 years to maximum, at court’s discretion. Consider putting this in the Bill of Information. 14:67.16 C. (1) (b) Identity theft. If victim 60 years of age or older, minimum goes from 0 years to 2 years. 14:67.21 Theft of assets of aged person,
93. Multiple criminal statutes apply specifically to elderly victims, cont’d 14:93.3 Cruelty to the infirmed, 14:93.4 Exploitation of the infirmed, 14:93.5 Sexual battery of the infirm, 14:403.2 Abuse and neglect of adults; reports; investigation; waiver of privileges; penalties; immunity. Makes reporting of elder abuse mandatory, and empowers District Attorneys to take steps to protect the elderly. C.E. Art. 803, Hearsay Exceptions. Keep (5) Recorded Recollection in mind where the elderly person is available for trial, but has an impaired memory.
94. Multiple criminal statutes apply specifically to elderly victims 14:35.2 Simple battery of the infirm. Minimum 30 days 14:42 Aggravated Rape.
95. Multiple criminal statutes apply specifically to elderly victims 14:50.2 Perpetration or attempted perpetration of certain crimes of violence against a victim sixty-five years of age or older. Adds 3 years to maximum, at court’s discretion. . 14:67.16 C. (1) (b) Identity theft. If victim 60 years of age or older, minimum goes from 0 years to 2 years.
96. Multiple criminal statutes apply specifically to elderly victims 14:67.21 Theft of assets of aged person, 14:93.3 Cruelty to the infirmed,
97. Multiple criminal statutes apply specifically to elderly victims 14:93.4 Exploitation of the infirmed, 14:93.5 Sexual battery of the infirm,
98. Enhanced Penalties La. R.S. 14:50.2, Perpetration or attempted perpetration of certain “crimes of violence” against a victim sixty-five years of age or older. Adds 3 years to the maximum sentence for crimes of violence