Ethicists Can Assist with Elder Mistreatment Cases

By Stacey Kusterbeck

Clinicians face many challenging ethical issues with patients experiencing elder mistreatment. “When a vulnerable patient is identified as likely being subjected to abuse or neglect, patient care may be impacted in a number of ways,” notes Barrie J. Huberman, PhD, HEC-C, a senior clinical ethicist and clinical director of the Division of Medical Ethics and Clinical Ethics Fellowship Program at Weill Cornell Medicine and NewYork-Presbyterian Hospital. Huberman and colleagues authored a paper exploring ethical issues that arise with elder mistreatment cases in the emergency department and inpatient settings.¹ “Elder mistreatment cases are often complex and unfold over time. Consulting ethics as soon as possible is ideal,” says Alyssa Elman, MSW, supervising social worker at Weill Cornell Medicine and NewYork-Presbyterian’s Vulnerable Elder Protection Team (VEPT). Here are some ethical dilemmas that frequently come up in elder mistreatment cases:

• Some patients want to return to living in an unsafe home environment.

“Clinical ethicists must consider the dignity of risk, which posits that a seemingly unsafe decision may still fulfill the needs of an autonomous older adult, and is, therefore, of value,” says Elman. Ethicists can sort out whether the patient’s expressed preference to return home is informed, voluntary, and authentic; and whether the home environment is deemed a safe enough option, when compared to alternative options.

“Good facts make good ethics,” says Huberman. Ethicists can help clinicians to engage effectively with those alleged to have mistreated a patient. This allows clinical teams to obtain a reliable medical history, and reliable information on other relevant factors (such as psychosocial variables, the home environment, and access to resources and support). Ethics consultants also work closely with VEPT social workers, to help clinical teams remain open-minded. For instance, it may seem as though home discharge is ethically unacceptable early on, but attitudes may change after more information is learned. Ethicists can explain why some discharges are ethical, even if they are not completely safe. An elderly person may have a very strong desire to continue to live in their own home, even when they may benefit from subacute rehab or otherwise are unable to care for themselves.

“Ethicists clarify for care teams that the patient’s authentic priorities can survive decisional capacity,” says Huberman. The desire to remain at home may be intact, even if the patient is unable to appreciate that the person who they rely on for meals, personal hygiene, medications, and companionship does not adequately provide those things.

When a good faith assessment reveals that home is of utmost priority to the patient, it can be ethically justified to discharge back to the home if enough resources can be mobilized to provide for at least basic needs.

“There is a degree of risk that the plan will fail,” acknowledges Huberman. “However, many similarly situated patients with capacity make similar choices for themselves to avoid unwanted circumstances.” Clinicians want to respect the patient’s wishes when possible. Ethicists remind clinicians that facility living is not without risk of harm, both physical and emotional. “This assures clinician colleagues that by supporting a ‘safe-enough’ discharge, they are not failing in their obligations to a vulnerable patient,” says Huberman.

• The alleged abuser may be the healthcare agent or surrogate decision-maker for an incapacitated patient.

Younger adults experiencing domestic violence typically are supported in the choices they make, since their ability to make independent decisions is unquestioned, observes Tony Rosen, MD, MPH, program director of the VEPT. In contrast, some older adults experiencing elder mistreatment lack decision-making capacity because of cognitive impairment or medical conditions. “Medical professionals must be cautious when deciding to take away a person’s right to participate in their decision-making, as this is a pillar of human rights,” warns Rosen.

Ethicists know that patients often are best suited to determine what is most important to them, even if their decision-making capacity is limited. “This is especially complex in the setting of alleged mistreatment,” says Huberman. The temptation to remove the patient from the home or separate the patient from the alleged abuser has the potential to create other kinds of harm. For instance, patients may lose familiar and comfortable home surroundings or end up isolated from their loved ones.

Ethicists can emphasize to clinicians that a surrogate is not necessarily “good” or “bad.”

“There are situations in which a surrogate displays behavior of concern, yet is also able to provide valuable information about the patient’s wishes that can inform care,” says Elman.

It often is the people who are closest to the patient, and, therefore, most likely to know their preferences, who are perpetuating mistreatment. Neglect can occur because of competing social or economic burdens (such as the need to be at work or care for children), because of lack of knowledge about resources that could help, or because of mistrust of the system. Alleged exploitation can occur when a family member or friend has no other access to housing or money or may suffer from untreated psychiatric illness. “Social determinants do not justify neglect, exploitation, or abuse. But it does help everyone involved to remain open to working on a problem with, rather than at, the people closest to the patient,” says Huberman.

Some patients repeatedly state a preference for keeping an abusive or neglectful surrogate involved in decision-making. “It is important to honor the values of the patient as safely as possible,” underscores Elman.

• Clinicians may want help determining how much they should rely on an alleged abuser’s report of pertinent history.

Ethicists can help clinicians to approach potential surrogates effectively, even if the individual is alleged to have abused or neglected the patient.

“Such individuals may have valuable information to contribute and may be willing and able to make ethically sound healthcare decisions, depending on the details of the particular situation,” says Huberman.

Elderly persons with cognitive or functional decline may or may not benefit from burdensome interventions (such as intubation or cardiopulmonary resuscitation) or may be faced with a decision around potentially lifesaving amputation of a limb.

“In such cases, clinicians rely upon surrogate decision-makers to provide information about the incapacitated patient’s values related to quality of life,” says Huberman.

Ethicists work with clinicians to make good faith assessments about whether any potential surrogate is able to put the patient’s interest first when contributing to healthcare decision-making. “Clinical ethicists recognize that when the patient has lost capacity and has no relevant advance directive, the goal is to uncover everything we can to help clarify the patient’s values and priorities. When the person alleged to have neglected or mistreated the patient is a family member or close friend, the individual can be a reservoir of available life narrative,” explains Huberman.

Ethicists attempt to elicit critical insight into the patients’ preferences and predilections, religious beliefs, or philosophy of life.

“This can be pivotal information. It is problematic to discount or categorically exclude this information,” says Huberman.²

Ethicists can clarify a harsh reality: If the surrogate is excluded, the alternative may be decision-making by a stranger. Clinicians might be forced to rely on a bureaucratic process involving people who may be well-meaning but know nothing about the patient as a unique person, and are not immune to conflicts of interest. There may be another, middle-ground option if another family member is available.

“As with all potential surrogates, sometimes it is not possible to facilitate patient-centered decisions with an alleged abuser, and so ethicists will recommend moving along to the next available surrogate,” adds Huberman.

REFERENCES

1. Bloemen EM, Gottesman E, Furfari K, et al. Examining ethical issues that arise in providing ED/hospital care for patients experiencing elder mistreatment and approaches to address them. J Elder Abuse Negl 2024;36:395-412.
2. Fins JJ, Huberman BJ. Decisional humility and the marginally represented patient. Amer Journ Bioethics 2020; 20:51-53.