(The pdf for the issue in which this article appears is available for download: Vol. 37, Issue 6.)
There are many situations in which an older person needs the services of both an attorney and a physician and communication and collaboration between members of those two professions would be highly advantageous to the older patient/client’s well-being. Unfortunately, the record thus far of interprofessional collaboration on behalf of the shared older patient/client in such circumstances generally is deficient and needs to be improved. The first step in the direction of remedying this deficiency must be recognition by both elder law attorneys and physicians (and other health care professionals) of situations in which positive engagement with each other would be valuable for everyone concerned. Many examples of such situations exist; this paper outlines six of the most major contexts for fruitful attorney/physician collaboration on behalf of shared older patients/clients.
1. Decisional Capacity Issues
Most older individuals—in fact and as presumed by the law—retain sufficient cognitive and emotional ability, if provided with adequate information, to make autonomous, authentic decisions about important aspects of their own lives. Sometimes, however, an older person’s capacity to make and express valid choices about personal (including medical or residential) or financial matters is questionable and/or questioned by others. Capacity is decision-specific rather than global and the distinction between adequate and inadequate capacity to make a particular decision often lacks a bright line demarcation. Assessing decisional capacity, determining the causes and extent of capacity impairment in individuals, figuring out a plan of action that supports or assists the individual’s meaningful involvement in decisions even when significant impairment is present (especially when the individual has no available family or friends), and properly documenting the various components of the assessment and possible intervention processes are all professional tasks with important medical and legal consequences.
The elder law attorney needs physician involvement to help recognize when decisional capacity may be compromised and to quantify the existence, degree, and reversibility or alterability (for example, through medication management) of decisional impairment. The physician could benefit by working with an elder law attorney who can identify and delineate the potential legal implications of the older person’s decisional impairment and then evaluate the authority for, limits of, and policy advisability of possible interventions such as guardianship, less formal types of decision making such as supported decision-making arrangements, or reliance on previously-created or implied advance directives or other prospective patient/client instructions.
2. Elder Mistreatment
Many older individuals, particularly those compromised by cognitive decline, are vulnerable to the risks of physical, psychological, and financial mistreatment at the hands of family members or others. In the health care sphere, elder mistreatment often takes the form of a pattern of acts or omissions, rather than a single instance. In addition to abuse and exploitation, elder mistreatment may be manifested in the form of neglect. These acts or omissions often occur in the older person’s home or that of a relative with whom the older victim resides.
The associated set of problems is compounded by the reluctance of many older persons to cooperate in reporting and investigating their own arguable mistreatment. For example, a decisionally-capable but physically-vulnerable older adult may passively accept physical or emotional abuse, financial exploitation, or neglect of basic needs like hygiene or medications at the hands of a family caregiver out of fear that making a report to Adult Protective Services (APS) might result in removal from the home environment to a nursing home.
Situations involving actual or potential neglect, exploitation, or abuse of an older person raise a constellation of medical-legal issues calling for interprofessional cooperation. The input of the patient’s physician to recognize and evaluate, as well as to medically treat, signs and symptoms of elder neglect, exploitation, or abuse is essential in the consideration and effectuation of legally permissible options or required actions.
Legal issues pertain to health care professionals’ responsibility to monitor the quality and safety of home care provided by family caregivers or others, the duty (or at least permissibility) of various professionals to report instances of suspected neglect, exploitation, or abuse to APS or other authorities, confidentiality considerations, the legal ramifications of failing to report, and what legal immunities attach to reporting or other interventions. These are all matters calling for legal advice by the elder law attorney that should benefit both the physician and the older patient/client.
Mistreatment of older persons by others is a serious problem. Both the medical and legal conundrums became more complicated, and thus even more amenable to interprofessional collaboration, when self-neglect is entailed. A significant percentage of older adults, mainly living alone, do not regularly attend to their own needs or well-being regarding health care, hygiene, nutrition, and other matters. The majority of cases reported to APS agencies by health and social service professionals and family members are triggered by suspected self-neglect. The health care system expends considerable efforts trying to intervene in these situations to prevent increased rates of hospitalization, nursing home placement, and even death.
In situations involving suspected elder self-neglect, the physician’s role is vital in recognizing the potential problem, characterizing the nature and seriousness of the risk posed, and trying to identify clinically and socially viable intervention strategies. Among other concerns, decisional capacity issues almost always arise in these cases. The physician may look to an attorney for advice about legal reporting requirements or options, as well as the legal boundaries within which interventions may be designed and implemented in a manner that best respects the older person’s dignity and autonomy while protecting the vulnerable at-risk individual from undue foreseeable, preventable self-generated harm.
4. Medical Payment Issues
An unavoidable element in attaining appropriate medical and rehabilitative care for older patients is assuring that payment for needed services will be available. For the majority of people over age 65, this will mean working with the Medicare bureaucracy, although a specific state Medicaid program and/or private insurance policies also may be involved in particular circumstances. A number of issues potentially interfering with Medicare payment for a patient’s services, thereby jeopardizing the continuity of that patient’s care and well-being, may develop. Some of the most salient of these issues concern older patients who have entered hospitals through emergency departments and been held in Observational Status rather than admitted as in-patients prior to being transferred to nursing facilities, as well as hospital discharge and readmission practices that may jeopardize coverage for subsequent rehabilitation services. Other prominent issues involve the interpretation and application of Medicare rehabilitation payment policy regarding the standard of need for services rather than continuing potential for benefit, plus various aspects of coordinating benefits under Medicare with those services covered concurrently in whole or part by other third-party payers.
The elder law attorney seeking to obtain payment for an older client’s medical or rehabilitative care in the face of resistance by a governmental or private third-party payer needs the assistance of the patient’s physician to provide and/or augment documentation, and to clarify and argue questions regarding the older person’s medical condition, needs, prognosis, and potential when payment eligibility turns on those factors. Conversely, even when the older patient’s medical condition, needs, prognosis, and potential are known to the physician, prospectively assuring or subsequently obtaining reimbursement for appropriate services may require the assistance of an elder law attorney to assert and advocate for the rights of the older person.
5. Family Issues
In many situations, professional services of the medical or legal variety provided to older individuals are necessarily entwined with family issues. Families often act as caregivers (sometimes on a compensated basis but more frequently as volunteers) for older relatives lacking full independence. Looking at families functioning in that capacity, medical professionals are important in recognizing and trying to ameliorate problems of caregiver burden that may endanger both the caregivers and the person who is dependent upon their caring. The elder law attorney can inform the parties involved, including the patient’s physician, about public or private sources of financial or other kinds of support for family caregivers, such as any availability of benefits under the federal Family and Medical Leave Act and/or state counterparts.
For older individuals with significantly reduced decisional capacity, family members may be acting as surrogate decision makers making choices on behalf of the older person or as helpers to a person who is capable of exercising supported decision making. In either event, when decisions concern medical care, the physician must be centrally involved in providing information and recommendations to the family, as well as supporting them in the decision making and implementation process. The elder law attorney may be involved in working with currently decisionally capable individuals and their families in the advance health care planning process, for example counseling them about advance directive options and helping the client-family unit to effectuate its wishes and values. The elder law attorney may be useful to the physician by helping to delineate legally empowered surrogate decision makers or to employ the legal system to clarify questions regarding legal authority. The physician and attorney may work collaboratively in presenting cases to an institutional ethics committee or ethics consultant when there are serious disagreements among family members, between family members and patient preferences, or between families qua patient surrogates and professional caregiver opinions about the patient’s best interests.
Tying in to the earlier discussion of self-neglect, the family may be confronted with an older loved one who refuses to acknowledge mental decline and the need for help. That family, and ultimately their loved one, may benefit from the delineation and possible pursuit of more or less intrusive options identified through the collaborative efforts of the physician and attorney.
Sometimes, families have interests that conflict with those of a vulnerable older person and they seek to act upon their own interests to the detriment of that older person. In those situations, the physician may be the one to call the problem to the attention of the individual’s attorney and/or provide contextual information about the conflict and its consequences. The attorney, in turn, may initiate or threaten legal action to protect the rights and welfare of the older person in a manner that also serves the ethical and legal interests of the person’s physician.
Intertwined with each of the issues already discussed, as well as many others, are concerns about the permissible handling of personal information that the physician or attorney learns about a particular older patient/client solely as a direct result of the formal relationship between professional and older patient/client. For example, what are the confidentiality ramifications of a physician’s suspicion that an older patient is being neglected, exploited, or abused? The physician can educate the attorney about the kinds of health care information collected pertaining to a client, how and where that information is documented and stored, how to interpret the meaning of documentation, the clinical uses to which the information may be devoted, and who normally has access to that information (and under what circumstances). The attorney can educate and counsel the physician about the legal parameters of information collection, maintenance, and sharing under common law confidentiality principles, state statutes and regulations, and the federal Health Insurance Portability and Accountability Act (HIPAA), among other legal provisions. For example, the attorney can explain differing expectations and rules for protecting patient privacy applicable to members of different professions, such as when a social worker employed as staff in an elder law office suspects elder mistreatment and may be subject to reporting requirements that do not compel action by the attorney.
Enhanced interprofessional communication about confidentiality can be beneficial to the older patient/client. Accurately informed physicians and attorneys are well-positioned to protect the legitimate autonomy and privacy interests of older persons to whom they owe fiduciary duties, while at the same time facilitating the permissible and salutary transmission of relevant person-specific information to authorized recipients so that the continuity of service provision is optimized.
The foregoing discussion describes some of the key needs and opportunities for physician/attorney cooperation and collaboration in contexts involving older patients/clients whom the members of the two professions both serve. Other examples abound, such as managing situations involving unsafe driving by an older person who resists voluntarily restricting personal use of the motor vehicle. It is incumbent on the medical and legal professions to take advantage of the enumerated available collaborative opportunities to serve both their own prudential self-interests and the ethical obligations that they owe their patients/clients as practicing members of learned professionals. ■