Client A, a 73-year-old indigent defendant, has been referred to you for representation after having been charged with a misdemeanor criminal offense. She is living independently on her own, although she requires some assistance with paying her bills each month. During her conversation with you, Client A demonstrates the ability to express a consistent choice of how she would like you to address her case, but occasionally has some difficulty remembering minor details. Although you feel that she is probably competent to stand trial, you worry about her memory issues regarding certain critical details of her arrest and subsequent questioning. What can you do to help this client?
What Is Dementia?
As people continue to live longer due to advances in medicine, a great proportion of the population will become afflicted by diseases that affect the brain and impair various aspects of thinking. These diseases are typically seen in the elderly, although advanced age is not synonymous with such conditions. (Andrea Schaffner, Understanding Dementia, 23 Quinnipiac Prob. L.J. 372 (2010).) Understanding the prevalence, presentation, and impact of this phenomenon is important, as more of the client base in criminal proceedings will have a potentially higher risk of being affected.
Dementia is a broad term that encompasses a multitude of diseases, all of which involve the brain, leading to an acquired decline in thinking that worsens over time. (Carolyn Reinach Wolf et al., Distinguishing Dementia from Mental Illness and Other Causes of Decline, 89 NYSBA J. 22 (2017).) This deterioration in several domains of cognition can affect the ability to perform what are known as activities of daily living, such as paying bills, cooking, and showering. (Monica Franklin & Susie Stiles, Senior Moments: Dealing with Dementia: Part 2, 46 Tenn. B.J. 31 (2010).) In addition are behavioral disturbances that include impulsivity and agitation, which take a huge toll not just on dementia sufferers but also on their family members, who often are the caregivers tasked with aiding their loved ones in navigating the cognitive, physical, and emotional impacts of dementia. (Tex. Bar Ass’n, Dealing with Dementia, 74 Tex. B.J. 264 (2011).)
The hallmark of dementia is significant impairment in one or more of the following domains: memory, language, visual spatial functioning, and executive functioning. Memory refers to the ability to recall past information and to learn new information. Impairments in memory may affect the ability to remember things that have occurred recently (short-term memory impairment) or long ago (long-term memory impairment). Language involves the ability to recall, produce, and understand written or spoken words. Visual spatial functioning refers to the ability of the brain to translate what one sees into an understanding of where things are in space, as well as the meanings of other forms of input like maps and symbols. (Franklin & Stiles, supra.) Impairments in this regard can result in difficulties in navigation. Executive functioning refers to the ability to plan, reason, solve problems, and focus on a task. Impairments in executive functioning can present as difficulties in planning, completing multistep tasks, and controlling one’s impulses. (Sharon B. Gardner et al., Dementia and Legal Capacity: What Lawyers Should Know When Dealing with Expert Witnesses, 6 NAELA J. 131 (2010).) The severity of the impairment in each domain depends on the type of dementia in question and the extent to which the individual’s condition has progressed.
In addition to the cognitive difficulties described above, persons with dementia can also exhibit psychiatric symptoms. Depression and anxiety are commonly observed, as individuals worry about their future in terms of an impending loss of function. Paranoia may surface as people forget where they placed things, and—having “forgotten that they forgot”—may accuse others of stealing from them. (Wolf et al., supra.) With certain forms of dementia, as detailed below, hallucinations may also be present. (Marshall B. Kapp, Legal Standards for the Medical Diagnosis and Treatment of Dementia, 23 J. Legal Med. 359 (2002).) In a majority of cases of late-stage dementia, apathy can occur, seeming on its surface similar to depression, but unresponsive to antidepressant medications or behavioral activation therapies.
What Other Conditions Can Look Like Dementia?
Other illnesses, such as depressive disorders, can mimic dementia, with a host of symptoms including low mood, loss of interest in previously enjoyed activities, disrupted sleep patterns, feelings of guilt, low self-worth, hopelessness, helplessness, and despair. In extreme cases, psychotic symptoms (such as paranoia and hallucinations) and suicidal thoughts may be present. Depression in older adults can be associated with a lack of attention to hygiene, a disinterest or decrease in eating, and delusional thinking, all of which can appear to reflect dementia until they are observed to resolve treatment specific to different disorders. (Wolf et al., supra.) The poor concentration and decreased motivation seen in depressive disorders can also mimic the apathy and cognitive decline seen in dementia. However, depressive disorders occur with a quick onset compared to dementias, which have a slow, insidious onset. Doctors need to obtain a thorough history of the presenting illness in order to distinguish depressive disorders and other psychiatric conditions from dementia.
Longer-standing psychiatric illnesses that are associated with cognitive difficulties include schizophrenia, schizoaffective disorder, bipolar disorder, ADHD, and other neurodevelopmental disorders. The age of onset of these disorders is typically much earlier than the age of onset of dementia, and primarily revolves around mood and/or psychotic symptoms. Individuals who already contain a diagnosis for any of the above conditions (depressive disorders, psychotic illnesses, and neurodevelopmental disorders) may also develop dementia, highlighting the importance of obtaining a careful history and collateral information to tease out an accurate diagnosis.
Another condition that may be mistaken for dementia is delirium. Delirium is a state of confusion marked by changes in ability to maintain consciousness and reduced ability to focus, sustain, or shift attention. By definition, however, delirium is not accounted for by an ongoing, longer-term disease process. It develops over a short period of time—typically hours to days—and fluctuates over the course of the day. Delirium can present with increased or decreased motor activity, and is typically caused by an underlying medical condition, by substance intoxication, or by medication. This disorder has a high prevalence among the elderly, especially those who are medically hospitalized. Dementia can make an individual more susceptible to delirium as well. Notably, in delirium, the impairment in these areas is short-lived and affected more by level of consciousness and ability to attend to these tasks. Further complicating attempts to distinguish dementia from delirium, individuals with delirium, too, can demonstrate difficulties with their thinking, including memory loss, disorientation, and difficulty with language and speech. (Peter Pompei et al., Detecting Delirium among Hospitalized Older Patients, 155 Archives Internal Med. 301 (1995).)
What Are the Official Diagnostic Criteria for Dementia?
Dementia is classified as a “major neurocognitive disorder,” and must meet the following criteria:
A. Evidence of significant cognitive decline from a previous level of performance in one or more cognitive domains (complex attention, executive function, learning and memory, language, perceptual-motor, or social cognition) based on:
1. Concern of the individual, a knowledgeable informant, or the clinician that there has been a significant decline in cognitive function; and
2. A substantial impairment in cognitive performance, preferably documented by standardized neuropsychological testing or, in its absence, another qualified clinical assessment.
B. The cognitive deficits interfere with independence in everyday activities (i.e., at a minimum, requiring assistance with complex instrumental activities of daily living such as paying bills or managing medications).
C. The cognitive deficits do not occur exclusively in the context of a delirium.
D. The cognitive deficits are not better explained by another mental disorder (e.g., major depressive disorders, schizophrenia).
(Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013).)
The diagnosis is then further specified by whether it contains behavioral disturbance or not (i.e., psychotic symptoms, mood disturbance, agitation, apathy, or other), and also by its severity (mild, moderate, or severe). There is also a diagnostic category for individuals experiencing some cognitive decline, but not enough to impact functioning. (Id.) This intermediate status between no cognitive impairment and major neurocognitive disorder is deemed “mild neurocognitive disorder,” such that an individual with this disorder may be described as having “mild” cognitive impairment. Although mild cognitive impairment (MCI) can be a disorder that does not progress to dementia, individuals with MCI are three times as likely as other persons to develop dementia within the next two to five years after an initial MCI diagnosis. (Alex J. Mitchell & Mojtaba Shiri-Feshki, Temporal Trends in the Long Term Risk of Progression of Mild Cognitive Impairment: A Pooled Analysis, J. Neurology Neurosurgery & Psychiatry 1386 (2008).) In addition, while MCI does not always reflect the early stages of Alzheimer’s disease (a common form of dementia), MCI as a result of Alzheimer’s disease is the most common. (David A. Bennett et al., Natural History of Mild Cognitive Impairment in Older Persons, 59 Neurology 198 (2002).)
How Do We Diagnose Dementia?
Diagnosis of the various dementia entities vary widely, but all clinical assessments begin with taking a thorough history of the presenting symptoms, including collateral information from a family member or someone else who is close to the examinee. This collateral information is key, as oftentimes the individual with dementia does not recognize his or her own symptoms. Following the history and collateral interviewing, a physical examination, mental status examination, and clinical assessment of cognition—along with lab and imaging studies—are performed. (Schaffner, supra.) The lab and imaging studies are often used to determine if the patient has any of the secondary causes of dementia, described below. Brain magnetic resonance imaging can help determine any structural diseases, such as a brain bleed, tumors or normal pressure hydrocephalus, strokes, or shrinkage of the brain in certain areas, aiding in a specific diagnosis.
Several instruments can be used by properly trained mental health professionals as screening measures when dementia is suspected. The Montreal Cognitive Assessment (MoCA) utilizes a one-page form that investigates the domains of visual and spatial functioning, language (including naming, fluency, repetition, understanding), and memory—specifically, short-term recall of words, attention, abstract reasoning, and orientation. (Ziad S. Nasreddine et al., The Montreal Cognitive Assessment, MoCA: A Brief Screening Tool for Mild Cognitive Impairment, 53 J. Am. Geriatrics Soc’y 695 (2005).) The Mini-Mental State Examination (MMSE) assesses similar domains to the MoCA, but often takes less time to complete, affording a quick determination of an individual’s ability for short-term recall, computation, comprehension, and visual spatial problem solving. (Marshal F. Folstein et al., “Mini-Mental State”: A Practical Method for Grading the Cognitive State of Patients for the Clinician, 12 J. Psychiatric Res. 189 (1975).) The Saint Louis University Mental Status (SLUMS) examination only takes around seven minutes to administer, and may in fact be better than the MMSE at detecting MCI. (Syed H. Tariq et al., Comparison of the Saint Louis University Mental Status Examination and the Mini-Mental State Examination for Detecting Dementia and Mild Neurocognitive Disorder: A Pilot Study, 14 Am. J. Geriatric Psychiatry 900 (2006).) Lawyers working with clients for whom there is concern for cognitive impairment should be sure to review scale results with the help of a mental health professional who has expertise with interpreting such results.
What Are Some Specific Forms of Dementia?
Of the various diseases that comprise the broad umbrella term of dementia, some of them are designated as primary neurodegenerative disorders of the brain, while others are secondary. The more common primary neurodegenerative diseases include Alzheimer’s disease, vascular dementia, dementia with Lewy bodies (DLB), Parkinson’s disease, and frontotemporal dementia. The overall most common dementia is Alzheimer’s disease. (James H. Pietsch, Becoming a “Dementia-Capable” Attorney—Representing Individuals with Dementia, 19 Haw. B.J. 1 (2015).) The second most common is vascular dementia. (Franklin & Stiles, supra.) Mixed dementia refers to having dementia due to more than one disease, which often is the norm rather than the exception.
Alzheimer’s disease typically occurs in adults over the age of 65, and presents with the initial symptom of memory difficulty, particularly involving short-term memory. (Clive Ballard et al., Alzheimer’s Disease, 377 Lancet 1019 (2011).) Individuals with Alzheimer’s disease may have difficulty remembering recent events, such as what they had for breakfast earlier that day, while still remembering events that occurred far in the past. Specifically, the memory impairments in Alzheimer’s disease affect memory of events in a particular time and place, whereas the memory of how to do tasks and vocabulary are affected much later in the course of the disease. Other impairments that may develop over time in Alzheimer’s disease are impairment in executive functioning as well as in the individual’s ability to recognize any cognitive deficits in themselves, a condition also known as anosognosia. (Dylan G. Harwood et al., Frontal Lobe Hypometabolism and Impaired Insight in Alzheimer’s Disease, 13 Am. J. Geriatric Psychiatry 934 (2005).) Impairments in language and behavioral symptoms, such as apathy, social isolation, agitation, and delusions, typically occur much later on.
Vascular dementia refers to any dementia that results from disease of the blood vessels in the brain leading to impairment of blood flow into the brain and resulting damage of a part of the brain, also known as a stroke. The diagnosis of vascular dementia is made with the combination of clinically observed cognitive impairment along with imaging findings or evidence of a stroke followed by cognitive decline. (Joanna M. Wardlaw et al., Neuroimaging Standards for Research into Small Vessel Disease and Its Contribution to Ageing and Neurodegeneration, 12 Lancet Neurology 822 (2013).) Vascular dementia is either the main cause or one of the contributors in 25–50 percent of all cases of dementia. (Julie A. Schneider et al., Mixed Brain Pathologies Account for Most Dementia Cases in Community-Dwelling Older Persons, 69 Neurology 2197 (2007).) A combination of vascular dementia along with Alzheimer’s disease accounts for around 30–40 percent of all dementia. (H. Feldman et al., A Canadian Cohort Study of Cognitive Impairment and Related Dementias (ACCORD): Study Methods and Baseline Results, 22 Neuroepidemiology 265 (2003).)
Risk factors for vascular dementia include high blood pressure, diabetes, high cholesterol levels, smoking, heart disease, and abnormal heart rhythms. Clinically, these individuals exhibit a stepwise decrease in cognitive functioning, with a clear correlation between the area of the brain affected and the loss of cognitive functioning. (Perminder Sachdev et al., Diagnostic Criteria for Vascular Cognitive Disorders: A VASCOG Statement, 28 Alzheimer Disease & Associated Disorders 206 (2014).)
DLB is characterized by visual hallucinations, abnormal movements, fluctuations in waking, excessive daytime sleepiness, and sleep disorders. (Ian G. McKeith et al., Diagnosis and Management of Dementia with Lewy Bodies: Fourth Consensus Report of the DLB Consortium, 89 Neurology 88 (2017).) DLB presents typically with impairments in attention, executive functioning, and visuospatial functioning—with memory affected much later on, in contrast to Alzheimer’s disease. (Martine Simard et al., A Review of the Cognitive and Behavioral Symptoms in Dementia with Lewy Bodies, 12 J. Neuropsychiatry & Clinical Neuroscience 425 (2000).) Fluctuations in awareness can present with moments of bizarre behavior, unconsciousness, confusion, or difficulty moving or speaking, which are all difficult to distinguish from other conditions, including strokes and delirium, and visual hallucinations occur in approximately two-thirds of individuals with DLB. (T.A. Ala et al., Hallucinations and Signs of Parkinsonism Help Distinguish Patients with Dementia and Cortical Lewy Bodies from Patients with Alzheimer’s Disease at Presentation: A Clinicopathological Study, 62 J. Neurology Neurosurgery & Psychiatry 16 (1997).) Of all individuals with DLB, 70–90 percent exhibit parkinsonism, which is a collective term describing abnormal movements of tremor, rigid limbs, and a slowed and shuffling gait. (Dag Aarsland et al., Comparison of Extrapyramidal Signs in Dementia with Lewy Bodies and Parkinson’s Disease, 13 J. Neuropsychiatry & Clinical Neuroscience 374 (2001).)
Parkinson’s disease is primarily manifested by tremor, slowed movement (including a slowed and shuffling gait), rigid limbs, and decreased balance, but differs from DLB in that the motor symptoms typically present before any cognitive impairment is detectable. Around 41 percent of individuals with Parkinson’s disease develop dementia, with impairments in executive functioning appearing as the first deficit. (Elin B. Forsaa et al., What Predicts Mortality in Parkinson’s Disease?, 75 Neurology 1270 (2010).) This stands in contrast to Alzheimer’s disease, where memory is the first domain to exhibit any impairment. Sleep disorders including insomnia, daytime sleepiness, restless leg syndrome, and REM sleep disorder can present in up to 80 percent of patients with Parkinson’s disease. (Elise Tandberg et al., A Community-Based Study of Sleep Disorders in Patients with Parkinson’s Disease, 13 Movement Disorders 1895 (1998).) Hallucinations, paranoia, and delusions can also be present. Depression, anxiety, and apathy are psychiatric complications common in individuals with Parkinson’s disease, and must be screened for carefully.
Frontotemporal dementia, previously known as Pick’s disease, is one of the more common causes of early-onset dementia. Frontotemporal dementia is an umbrella term for a host of diseases that affect the frontal and temporal regions of the brain. It is highly genetically inheritable. (Sonia M. Rosso et al., Frontotemporal Dementia in the Netherlands: Patient Characteristics and Prevalence Estimates from a Population-Based Study, 126 Brain 2016 (2003).) Frontotemporal dementia can present with or without behavioral disturbances, with one clinical presentation designated as a behavioral variant frontotemporal dementia and another with primary progressive aphasia, where gradually worsening difficulty with speech is the primary impairment. The behavioral variant is the most common and presents as a slow shift in personality and behavior. (Julene K. Johnson et al., Frontotemporal Lobar Degeneration: Demographic Characteristics of 353 Patients, 62 Archives Neurology 925 (2005).) Early behavior changes in frontotemporal dementia include disinhibition, exhibiting socially unacceptable behavior (such as invasion of personal space), apathy, loss of empathy, increased desire to ingest things (often leading to binge eating), and compulsive behaviors, such as hoarding, repetitive movements, checking, and cleaning. (Howard J. Rosen et al., Neuroanatomical Correlates of Behavioural Disorders in Dementia, 128 Brain 2612 (2005).)
Secondary causes of dementia include, but are not limited to, normal pressure hydrocephalus, vitamin B12 deficiency, hypothyroidism or hyperthyroidism, heavy metal toxins, viral infections including HIV and syphilis, drugs and alcohol, cancer, and head trauma. (Franklin & Stiles, supra.) Many of these secondary causes, particularly the vitamin deficiencies, endocrine abnormalities (thyroid abnormalities), viruses, drug effects, and normal pressure hydrocephalus are reversible, and are therefore important to screen for when doing a clinical assessment. (Gardner et al., supra.)
So, a Diagnosis Has Been Made . . . Now What?
After the diagnosis of a specific dementia is made, treatment options are often limited to symptomatic and behavioral treatments, as no cure exists at this time for the irreversible causes of dementia. Medications for the treatment of dementia include cholinesterase inhibitors (donepezil, rivastigmine, and galantamine), memantine, high levels of vitamin E supplementation, and selegiline. (Marshall B. Kapp, Legal Standards for the Medical Diagnosis and Treatment of Dementia, 23 J. Legal Med. 359 (2002).) All of these medications have only a modest symptomatic benefit. Behavioral management of the psychiatric symptoms of dementia, good nutrition, physical and mental exercise, occupational therapy work, risk factor control for stroke and heart disease, limiting alcohol consumption, and continued social interactions are all important in management of dementia. These non-medication-based treatments have been shown to be more efficacious than medications alone. Early referral to providers and resources for timely diagnosis and treatment is therefore key.
As dementia affects the way one thinks and behaves, individuals with dementia can have a decreased ability to make decisions. Dementia is the most common cause of impaired decision-making capacity of adults, excluding individuals in hospitals or other facilities. (James M. Lai et al., Everyday Decision-Making Ability in Older Persons with Cognitive Impairment, 16 Am. J. Geriatric Psychiatry 693 (2008).) Careful assessment of decision-making capacity on a decision-by-decision basis is important for both the safety and autonomy of the individual with dementia. Although impairment in thinking may result in decreased ability to make decisions, results on the cognitive tests mentioned previously alone are not sufficient to determine decision-making capacity. Decision-making capacity consists of four main tasks: ability for understanding, ability to express a choice, ability to appreciate how the situation affects oneself, and ability to make a rationale choice via reasoning skills. (Paul S. Appelbaum, Assessment of Patients’ Competence to Consent for Treatment, 357 New Eng. J. Med. 1834 (2007).) A thorough semi-structured interview with an individual, addressing the information needed for that person to be able to make a decision and then assessing each of the four domains listed above via open-ended questions, is the standard assessment modality utilized to assess capacity for making a specific type of decision.
Other functionalities that are important to assess as an individual’s cognitive abilities decline include ability to drive, to handle finances, to cook, and to continue living independently. Ability to drive can be affected by not only cognition, but also visual and motor impairments, medications, and sleep disorders. (D.J. Iverson et al., Practice Parameter Update: Evaluation and Management of Driving Risk in Dementia, 74 Neurology 1316 (2010).) Impairment in financial capacity can occur fairly early in the disease course of dementia, with possible solutions including a durable power of attorney, online banking, automatic payments, joint bank accounts, and overdraft protections. (Eric W. Widera et al., Finances in the Older Patient with Cognitive Impairment, 305 JAMA 698 (2011).) Ability to cook can lead to injuries, burns, or fires. Finally, impairment in one’s activities of daily living can progress to the point that it is no longer safe for an individual with dementia to live on his or her own without assistance. There are a range of services including visiting nurses for homebound individuals, aides, assisted living facilities, and nursing homes for individuals who are no longer able to take care of themselves on their own.
Following are some recommendations that will be fleshed out in far greater detail in “Advocacy and the Age-Related Mental Health Issues of the Older Client” by Vince Aprile, in the upcoming Spring 2020 issue of Criminal Justice.
The client with dementia is still a client. Just like the client with lower back pain and the client with a sore throat are still clients. As much as counsel may wish to emphasize the client’s relevant impairments when addressing competency, sanity, and mitigation, this does not amount to an assumption that counsel should be acting more like a guardian ad litem than a trial attorney. As with children and with adults with other disabilities, counsel is ethically obligated to afford the client with dementia his or her due input and control regarding the full spectrum of legal decision-making.
Dementia is not an inevitable consequence of the natural aging process. Counsel should not assume that the elderly client is someone who is going to experience dementia as a matter of course. Special care should be taken—with clinical feedback where reasonably obtainable—to ensure that what may initially appear to be dementia is not one of the other diagnostic conditions described in this article.
The progressive nature of dementia has considerable implications for a determination of trial competency. Functional capacity as assessed some years, months, or even weeks ago may have deteriorated at a pace not predicted on the basis of other forms of mental illness. Follow-up forensic mental health examinations may be necessary. Inverting these concerns, current manifestations of dementia—no matter how severe—do not lead inexorably to the conclusion that the client lacked criminal responsibility in the distant, intermediate, or even relatively recent past.
Dementia is a relevant diagnostic construct for fact witnesses as well as for clients. The courts will be justifiably suspicious that counsel is conducting a “fishing expedition” if a testimonial capacity evaluation is being requested for all elderly witnesses as a matter of course. This having been noted, counsel will want to remain alert to any medical documentation, anecdotal evidence, or courtroom observations that raise the specter of witnesses who may not be capable of taking the stand and performing in an appropriate fashion.
Expert witnesses should be clinically savvy. Given the highly specialized nature of dementia assessment and treatment, counsel must take exceptional care to ensure that expert witnesses—as retained by either side—possess the requisite knowledge, skill, experience, training, and education to conduct these evaluations competently and to make suitably informed recommendations. As with juvenile evaluations, expert witnesses seasoned in assessing young and middle-aged adults will need to demonstrate more relevant clinical savvy than merely pledging to purchase additional test measures normed on persons in this extended age range.
Client A’s ability to state consistent choices and to understand the information you are presenting her suggests a relatively intact decision-making capacity at this time. However, given Client A’s cognitive concerns with respect to forgetting important case-related details, you are concerned about MCI. Erring on the side of caution, you decide to commission a brief competency evaluation from a trusted forensic clinician. You then prompt Client A to identify a trusted individual who might potentially assume a power of attorney role, and you also encourage her to seek further assessment from her physician to identify any areas of potential assistance from which she could benefit while still maintaining her independence.