CO-ORDINATED CARE & QUESTIONABLE CAPACITY. Introductions Joan Braun - Lawyer and Social Worker Maria...

CO-ORDINATED CARE & QUESTIONABLE CAPACITY

Introductions

Joan Braun - Lawyer and Social Worker

Maria Denholme – Social Worker

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.

Vancouver Coastal Health Coordinated Response Flow Sheet for staff caregivers

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

The Journey through Care – A Lifelong Journey

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.

Contact Information

Maria DenholmeSocial Worker/Designated Responder

[email protected]

http://wwwelmsbc.ca

[email protected] 604-780-4870

Contact Information

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.



Social Work:





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.



Social Work:






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)

CO-ORDINATED CARE & QUESTIONABLE CAPACITY. Introductions Joan Braun - Lawyer and Social Worker Maria...

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