Norman Abeles, PhD
Your dad is 82 years old and the two of you have not been getting along very well. Your mom died about five years ago and you have been wondering whether it is time for him to be in an assisted-living setting. You are wondering how much longer he can live alone safely. For instance, he recently got his first speeding ticket. In addition he sometimes forgets where he parked his car in the supermarket parking lot. He worries too much about money even though his pension is very good and he has a portfolio of stocks, bonds and mutual funds. You would encourage him to move into your house but you have two young children and your spouse would not be happy having your dad living there. Besides, your dad is very independent. He still likes to take trips out of town in his car to visit friends. Just the other day you and dad had a big argument about his out of town trips. You think he should not drive out of town because you are worried about his driving but he did not want to listen to you. Your dad told you several years ago that you and your brother will inherit his money. However, yesterday he said that he was going to see his attorney to discuss finances. You wanted to go with him but he insisted that he could take care of his own business. You have the following concerns: You wonder whether to call his attorney, who happens to be a family friend, and explain your concerns regarding your dad’s memory and his driving. You question whether he needs a guardian. Most importantly, you wonder whether the attorney will recognize your dad’s limitations.
This vignette presents typical concerns by a family with an older adult whose functioning is questioned. What guidance is available to assist us in facing these concerns? We have guidelines for psychologists from the American Psychological Association and from APA’s joint efforts with the American Bar Association (ABA) for attorneys, as attorneys are often involved in helping to sort out the various issues. Let’s take a look at what they suggest we consider, in light of the APA Ethics Code.
The American Bar Association (ABA) and the American Psychological Association (APA) published a handbook (2005) which discusses legal standards for specific legal transactions. An attorney has to determine whether an individual client has diminished capacity according to Rule 1.14 of the ABA’s Model Rules of Professional Conduct. To do so, the attorney works toward the goal of maintaining a normal client-lawyer relationship. However, the attorney can take protective action related to diminished capacity and confidential information can be released if it is necessary to protect the client’s interests ( p 2). But, how is the attorney to assess diminished capacity? After all, an attorney is not a geropsychologist trained to assess older adults. In addition, the handbook specifically advises against the use of clinical psychological screening such as the administration of psychological tests but instead describes a process.
First there is a preliminary screening based on the interaction between the attorney and their client. The preliminary screening may show mild, minimal or no evidence of diminished capacity. In those instances, representation continues. Obviously if the attorney perceives that dad’s capacity to proceed is significantly diminished, representation cannot proceed.
The attorney can seek professional consultation to assist in the deciding of whether to continue representation. The ABA’s Rules of Professional Conduct include a paragraph which permits an attorney to seek consultation when the client is deemed to have diminished capacity and is “at risk of substantial physical, financial or other harm unless action is taken”( 2002, p 2).
Third, individuals are assumed to be legally competent to make decisions about themselves unless a court of law has determined otherwise (Moye, 2003 p 310). There is a difference between clinical and legal competence. Clinical evaluations are useful as assessments of abilities and capacities for the purpose of judicial rulings about competence but the clinical assessment itself does not substitute for a declaration of competence or incompetence.
In that light, what does the family member do concerning dad? Does dad show beginning signs of dementia or is he just like others over a certain age who have occasional memory problems and forget where the car is parked? But what about the other issues? How many speeding tickets signal dementia? Secondly, is dad really overly concerned about money and is this a function of his age? Should dad stick closer to home and not travel out of town as much? Is it just possible that dad has a friend he is visiting?
Other questions that this vignette suggests: Is dad likely to change his will and could that be part of the reason the family worries about dad’s mental state? Is it even conceivable, you ask yourself, that dad might reduce an offspring’s inheritance? Could that be related to some possible misperceptions? Is it reasonable to ask whether there are signs of diminished capacity that someone not trained in geropsychology could evaluate?
As we noted above, lawyers are often placed in a position where they note signs that may indicate reduced capacity. These include cognitive, emotional and behavioral indicators. Among the cognitive problems, there may be indications of short term memory loss, problems in comprehension, calculation, communication and disorientation. Emotional problems can include anxiety, depression, and great variability in the range of emotions. Behavioral problems include delusions and hallucinations as well as poor grooming and hygiene. Nevertheless there may be mitigating signs which include individual differences as a function of background, education and life experiences. Vision and hearing loss may also contribute to appearance of diminished capacity. There may also be reversible medical factors. Numerous medications can affect mental status. Finally, normal grief and stress reactions can temporarily affect mental capacity (2002, pp14-17). Thus, attorneys need to focus on decisional capacities rather than cooperativeness or likeability, be aware that there is no single factor that necessarily accounts for peculiar behaviors, and recognize that such behaviors may not be indicators of diminished capacity.
Finally, psychologists need to follow the APA Ethics Code. They need to safeguard the welfare and rights of those with whom they interact professionally and seek to promote accuracy, honesty and truthfulness in their practice. They should exercise reasonable judgment and respect the rights of others, and recognize that special safeguards may be necessary to protect vulnerable individuals. Age may be just one of many factors and should not be singled out as the primary cause of problematic behavior. (APA, 2002b, pp 3-4).
What Help Can the APA Provide?
The APA Council of Representatives approved guidelines for psychological practice with older adults in August, 2003. These guidelines recognize that although a large percentage of psychologists in general practice have contact with older adults there are few who received education and training in the psychology of aging as part of their academic or clinical training in psychology. A survey of APA members who are practicing psychologists noted that 58% reported that they needed further study for their work with older adults and 70% showed interest in obtaining further training in clinical geropsychology (Qualls, Segal, Norman, Niederehe & Gallagher-Thompson, 2002). A study by Hinrichson (2000) indicated that 90% of those surveyed indicated interest in serving older adults (APA 2003, p 7). However, guideline 1 states that “psychologists are encouraged to work with older adults within their scope of competence, and to seek consultation to make appropriate referrals when indicated” (p 4).
The APA Ethics Code states that psychologists offer services in areas only within their area of competence based on education, training, supervised experience, consultation, study or professional experience (p 2). Note that the guidelines encourage psychologists to work within their area of competence and suggest methods by which to achieve competence. Of course, guidelines are aspirational, not standards, nor subject to enforcement.
At about the same time, APA passed a resolution on ageism which focuses on discrimination, prejudice and other negative behaviors solely as a function of age. The resolution addresses discriminatory attitudes and behaviors toward older adults (APA, 2002a). Examples include policies such as mandatory retirement age for office workers, lower salary increases for older workers, and stereotyping. Some assume that most, if not all, older adults will eventually suffer from depression, loneliness, inability to cope and frailty. Other stereotyping assumes that older adults are set in their ways and unable to deal with physical and mental declines which occur as a result of aging.
Not all stereotyping is negative. Sometimes ageism manifest itself through positive stereotyping which takes the position that either there are no changes that occur as part of aging or one should make allowances for observable significant deficits that occur as a function of age (Braithwaite, 1986). Let us briefly evaluate those assumptions.
As pointed out by Abeles, et al, in 1997, adults living in the community tend to have lower rates of diagnosed depression than do younger adults. Most older adults maintain relationships with other members of their family and live independently. With regard to older adults being set in their ways and unable to cope with age-related declines, data suggest that older adults do adjust to physical changes brought on by aging. Studies suggest that personality traits show considerable stability and this stability across the second half of the adult lifespan may be stronger than across the first half.
Others worry that the growing number of older adults increases health costs disproportionately and that eventually these health care costs will bankrupt our country. Accordingly, some institutions have decided that retired adults should pay increased costs for their health care and other institutions have decided to reduce health care payments for their retirees. This assumption was addressed by the Alliance for Aging Research (1997). Their analysts conclude that while health care costs have increased in the past 30 years, the aging of the population will add less than one percent per year to the growth of personal health expenditures (p 13). This is true despite the fact that older adults tend to spend more on health care than do younger adults. Further, the proportion of health care dollars spent on older adults who died is about the same for those who survived. New techniques, inflation, greater intensity of care and overall increases in Medicare expenditures have affected the cost of care but not population aging (p 13).
Of course we can not predict the future with the same accuracy as looking at the past. Baby boomers are now turning 60 and by 2011 they will be 65 and will represent 20% of our population. Cross cultural studies note that health care spending has not risen disproportionately for older adults. Among industrial countries Sweden has 18% of the population over the age of 65 but health care costs (in terms of percentage of gross domestic product spent on health care) are about the same as that of other countries where the population of older adults is smaller. In Japan, where the older adult population increased more than 30% from1980 to1990, health care costs increased by only 1.6% (p 15). Thus, it is much too early to assume that health care costs for the elderly will have a negative impact on our economy.
We have noted how lawyers might address diminished capacity. Similarly, psychologists have additional ethical issues to consider, especially informed consent prior to assessment. Clearly psychologists should educate their patients concerning the intended services, potential risks, financial arrangements and the limits of confidentiality. Patients need to be competent to give consent and when there is evidence that they are not competent, legal guardians and or family members are needed (APA,1998, p 5).
For the assessment of age-related cognitive decline, psychologists should possess specialized competence not only in interviewing but also in the administration of specialized tests. However, as pointed out by the APA guidelines on the assessment for the evaluation of dementia and age-related cognitive decline (1998), that competence may not be sufficient. These guidelines strongly encourage advanced education and preparation and the use of current scientific and professional developments. Psychologists should also be aware of possible underlying medical disorders or consult with medical personnel familiar with evaluating older adults. The guidelines further suggest that psychologists should be aware of personal and societal biases and strive to overcome such biases or withdraw from the evaluation (p 6).
When English is not the primary language, validity of testing is often compromised. It is also important to use well validated measures that have been developed especially for older adults. Psychologists should be aware that brief screening measures such as the Mini-Mental State Examination (MMSE) should not be the sole diagnostic tool (Abeles, et al, 1998). Tests that include normative data for older adults as well as both qualitative and quantitative indicators of performance should form part of the assessment of older adults.
Optimal performance should be sought and the examiner should inquire whether or not assistive devices like eyeglasses and hearing aids have been brought to the testing session. The examiner should also attempt to determine what medications the client is currently taking and the extent to which pain interferes with the ability to concentrate. Multiple testing sessions should be utilized to assess how the older adult is functioning throughout the day and testing times should be adjusted in order to permit optimal functioning.
Intervention, Consultation and Other Service Provisions
The guidelines for psychological practice with older adults note that psychologists should strive to be familiar with and develop skills in applying specific psychotherapeutic interventions and environmental modifications with older adults and their families (Guideline14, p 4).The treatment of choice concerning psychological interventions is guided by the nature of the problem, therapeutic goals, preferences of the older adult and practical considerations (Abeles, et al,1998). Psychological interventions most likely will be helpful no matter what the age of the patient but there are relatively few research studies looking at the efficacy of treatment for older adults. Niederehe and Schneider (1999) do point out that cognitive behavioral therapy and psychodynamic therapy have been shown to be effective for the treatment of depression in the elderly, as have antidepressant medications and electroconvulsive therapy. They note that a combination of psychosocial and pharmacological treatments should be considered the standard of care (p 270). However, controlled studies of anxiety in the elderly appear to be lacking and treatments for anxiety in older adults are based on extrapolation from studies done with younger adults.
Judy Zarit and Steven Zarit (1996) discuss ethical considerations in the treatment of older adults. They focus on two common issues that face practitioners who work with older adults. The first of these concerns confidentiality. It is not uncommon for therapists to hear from family members asking whether the older adult is being seen by the therapist. The authors suggest that the therapist listen to the information being provided without confirming whether the client is being seen by the therapist and state that a release from a client is necessary prior to communicating any information to an outside person. The next dilemma revolves around how information should be used. In cases where the client is likely to be in imminent danger to self or others, confidentiality may be waived, though therapists must first be familiar with the laws of the state wherein they reside. There may be other cases, where a therapist may judge that it is in the client’s best interest for the therapist to speak to the caller (p 271). In those cases the therapist may want to encourage their client to sign a release of information.
Zarit and Zarit point out that when clients are referred for evaluation of memory impairment and there is advance evidence of impaired competency, clients should be asked to sign a release so the psychologist can consult with other health professionals. If the client is unwilling to do so, it may be helpful to move to establish a therapeutic relationship and then re-introduce the possibility of a release of information. It should be noted that even if a power of attorney specific to health issues exists, the client should be asked by the psychologist to sign a release in order to send or receive information from other health care professionals. This is an ethical safeguard even if the patient release is not legally binding in the presence of a power of attorney.
Moody (1992) raises the problem of patient autonomy in long term care and how that issue affects quality of life. He points out that nursing home placement decisions are often final decisions and that being in a nursing home can be viewed as either care-giving or as a form of incarceration (p 95). What might seem to be a simple process of obtaining informed consent becomes complicated. Moody notes that in some nursing homes a staff member, usually a social worker or nurse, gets in touch with the family of the nursing home resident and these family members have a conversation with the physicians concerning the procedure. (p. 111). This appears to be contrary to the usual procedure of asking the patient first. He points out further that obtaining informed consent is complicated by the likelihood that a good proportion of the residents have some degree of cognitive impairment though capacity to give consent is not an all or none decision but can often be tailored to the ability of the patient to understand.
Zarit and Zarit (1996) point out that “Medicare requires that each visit by a health professional be documented with the date, type of service provided, length of service, some indication of the content of the service and a signature” (p. 276). In many nursing homes patients sign a consent form which permits staff members to discuss treatment issues with each other. These authors advise that when psychologists are asked to consult about behavior problems of patients with cognitive impairments or with significant personality disorders, suggestions should be made in general terms rather than particular to a patient. This permits the staff to apply the recommendations across a range of patients. For example, agitation in patients may be related to an underlying physical condition which requires a referral for a medical evaluation. Alternatively, agitation may be related to overstimulation and to chronic cognitive impairment. The patient may respond positively to changes in the environment and actions taken by staff, family members and other caregivers (Abeles, et al, 1998).
Norman Abeles, Ph.D., is the Director of the Clinical Neuropsychological Laboratory and Memory Assessment Center at Michigan State University. Dr. Abeles is a member of the National Register Board of Directors.
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