Hostname: page-component-78c5997874-xbtfd Total loading time: 0 Render date: 2024-11-02T22:46:00.516Z Has data issue: false hasContentIssue false
  • English
  • Français

Adult Protective Services: Convincing the Patient to Consent

Published online by Cambridge University Press:  27 April 2021

Marshall B. Kapp
Get access Rights & Permissions [Opens in a new window]

Extract

Adult protective service systems in many of our states have been subjected to a good deal of public criticism. Much of this denunciation, particularly that emanating from civil libertarians who advocate on behalf of the legal and ethical rights of older citizens, centers on the legal aspects of protective services, and especially on the legal authority of the state to intervene unilaterally in the private life of an unwilling, protesting older individual.

Except in the most compelling of circumstances, society should avoid the coercive elements of protective services. Often overlooked, however, by commentators, policy-makers, and caregivers alike, is that protective services may be, and in the vast majority of instances are, accepted voluntarily (and gratefully) by the older recipient. A mentally competent individual may voluntarily give informed consent in the medical sphere, as well as in others, to the receipt of services that he or she currently needs. Additionally, legal mechanisms frequently enable a competent independent adult to foresee and prepare for the possibility that he or she might become incompetent and dependent, by providing for a substitute decisionmaking process of the individual's own choosing.

Type
Article
Information
Law, Medicine and Healthcare , Volume 11 , Issue 4 , September 1983 , pp. 163 - 188
Copyright
Copyright © American Society of Law, Medicine and Ethics 1983

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Regan, J., Intervention Through Adult Protective Services Programs, Gerontologist 18(3): 250, 251 (1978) [hereinafter referred to as Intervention], citing Mathiasen, G., Guide to the Development of Protective Services for Older People (National Council on Aging, Washington, D.C.) (1973); Regan, J. Springer, G., Protective Services for the Elderly (Special Senate Committee on Aging, 95th Cong., 1st Sess.) (Committee Print, July 1977).Google ScholarPubMed
Intervention, supra note 1, at 251.Google Scholar
Id. See, e.g., Conn. Gen. Stat. Ann. §46a-17 (West Supp. 1983); Wis. Stat. Ann. §55.02 (West Supp. 1982). See generally Regan, J., Protecting the Elderly: The New Paternalism, Hastings Law Journal 32(5): 1111 (May 1981) [hereinafter referred to as Paternalism].Google Scholar
See Paternalism, supra note 3.Google Scholar
42 U.S.C.A. §§3021 et seq. (Supp. 1983).Google Scholar
42 U.S.C.A. §§1397 et seq. (Supp. 1983).Google Scholar
See, e.g., N.Y. Soc. Serv. Law §131 (McKinney 1982 & Supp. 1983). See generally Burr, J., Protective Services for Adults: A Guide to Exemplary Practice in States Providing Protective Services to Adults in OHDS Programs (Administration on Aging, Washington, D.C.) (1982).Google Scholar
Intervention, supra note 1, at 251.Google Scholar
See, e.g., Ala. Code §38-9-1 to −11 (Supp. 1982); Md. Ann. Code art. 88A §§106-110 (1979 & Supp. 1982); N.H. Rev. Stat. Ann. §§161-D:1:6, 465-A:12 (Supp. 1981). See also Paternalism, supra note 3, at 1117-19.Google Scholar
See, e.g., Ohio Rev. Code Ann. §2111.02 (Page 1982) (providing for assistance of legal counsel); Ohio Rev. Code Ann. §2111.04 (Page 1982) (requiring prior notice to the proposed ward). See generally Kapp, M., Legal Guardianship, Geriatric Nursing 2(5): 366 (October 1981). For arguments that current guardianship laws provide inadequate protection, see Mitchell, A., The Objects of Our Wisdom and Our Coercion: Involuntary Guardianship for Incompetents, Southern California Law Review 52(5): 1405, 1432–33 (July 1979); Mitchell, A., Involuntary Guardianship for Incompetents: A Strategy for Legal Services Advocates, Clearinghouse Review 12(8): 451, 459 (December 1978); Horstman, P., Protective Services for the Elderly: The Limits of Parens Patriae, Missouri Law Review 40(2): 215 (Spring 1975).Google Scholar
See, e.g., Fla. Stat. Ann. §410.104 (West Supp. 1983) (no mention of any procedural rights for the proposed ward).Google Scholar
See, e.g., N.C. Gen. Stat. §108A-106 (Supp. 1982) (emergency intervention may be ordered where “there is likelihood that the disabled adult may suffer irreparable injury or death if such order is delayed”) (emphasis added).Google Scholar
Paternalism, supra note 3, at 1117.Google Scholar
See, e.g., Tenn. Code Ann. §14-25-102(9) (Supp. 1980) (“services aimed at preventing and remedying abuse, neglect, and exploitation”).Google Scholar
Paternalism, supra note 3, at 1118.Google Scholar
See, e.g., Ohio Rev. Code §2111.13 (Page 1982) (duties of guardian of person); Ohio Rev. Code §2111.14 (Page 1982) (duties of guardian of estate).Google Scholar
See, e.g., Okla. Stat. Ann. tit. 43A §803(4) (West Supp. 1982-83).Google Scholar
See, e.g., Utah Code Ann. §55-19-1(1) (Int. Supp. 1983) (impairment described as “infirmities of aging”); Md. Est. & Trusts Code Ann. §13.705(b) (Supp. 1982) (“senility”); Fla. Stat. Ann. §410.102(1) (West Supp. 1983) (“advanced age”).Google Scholar
See, e.g., S.C. Code Ann. §43-29-30(1) (Law Co-op. Supp. 1982) (“individual is unable to provide for his own protection”).Google Scholar
See, e.g., Horstman, , supra note 10; Intervention, supra note 1.Google Scholar
See, e.g., Atkinson, G., Towards a Due Process Perspective in Conservatorship for the Aged, Journal of Family Law 18(4): 819 (1979–80); Frolik, L., Plenary Guardianship: An Analysis, A Critique, and a Proposal for Reform, Arizona Law Review 23(2): 599 (1981); Rohan, P., Caring for Persons Under a Disability: A Critique of the Role of the Conservator and the “Substitution of Judgment Doctrine,” St. John's Law Review 52(1): 1 (Fall 1977); Sherman, R., Guardianship: Time for a Reassessment, Fordham Law Review 49(3): 350 (December 1980).Google Scholar
See Alexander, G., Premature Probate: A Different Perspective on Guardianship for the Elderly, Stanford Law Review 31:1003 (July 1979); See Gutheil, T. Appelbaum, P., Clinical Handbook of Psychiatry and the Law (McGraw-Hill Co., New York) (1982) at 241 (the primary negative impact on the individual of involuntary guardianship is the experience of coercion).Google ScholarPubMed
See, e.g., Ala. Code §38-9-4(a) (Supp. 1982) (“All protective services shall be in conformity with the wishes of the person to be served unless the person is unable or unwilling to accept such services….”).Google Scholar
Black, H., Black's Law Dictionary (West Pub. Co., St. Paul, Minn.) (5th ed. 1979) at 1055.Google Scholar
Regan, J. Springer, G., supra note 1, at 45.Google Scholar
See Restatement (Second) of Agency, §122 (American Law Inst. Publishers, St. Paul) (1958).Google Scholar
Uniform Probate Code §§ 5-501 to −505, Uniform Laws Ann. 8:28 (West Supp. 1983)Google Scholar
Uniform Durable Power of Attorney Act, Uniform Laws Ann. 8:81 (West Supp. 1983).Google Scholar
See Alexander, supra note 22; Libow, L. Zicklin, R., The Penultimate Will: Its Potential as an Instrument to Protect the Mentally Deteriorated Elderly, Gerontologist 13(4): 440 (Winter 1973); Miller, B., The Michigan Medical Decision Treatment Act, in Dilemmas of Dying: Procedures and Policies for Decisions Not To Treat (Wong, C. Swazey, J., eds.) (G. K. Hall & Co., Boston) (1981); Relman, A., Michigan's Sensible “Living Will,” New England Journal of Medicine 300(22): 1270 (May 31, 1979).Google ScholarPubMed
See generally Rosoff, S., Living Wills and Natural Death Acts, in Legal and Ethical Aspects of Treating Critically and Terminally Ill Patients (AUPHA Press, Ann Arbor) (1982) at 186. See also Kapp, M., Response to the Living Will Furor: Directives for Maximum Care, American Journal of Medicine 72: 855 (1982).Google Scholar
National Conference of Commissioners on Uniform State Laws, Uniform Health Care Consent Act, approved and recommended for enactment in all the states at its annual conference, Monterey, California, July 30–August 6, 1982, reprinted in President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment (U.S. Gov't Printing Ofc., Washington, D.C.) (1983) at 423-28 [hereinafter referred to as Deciding to Forego Treatment].Google Scholar
Id. at 145-48. “The Commission therefore encourages the use of existing durable power of attorney statutes to facilitate decisionmaking for incapacitated persons….” Id. at 149. Lombard, J., Legal Problems of the Aged and Infirm — The Durable Power of Attorney — Planned Protective Services and the Living Will, Real Property, Probate and Trust Journal 13(1): 1 (Spring 1978).Google ScholarPubMed
See, e.g., Va. Code §§11-9.1, 11-9.2 (Supp. 1983).Google Scholar
Cal. Civ. Code §§2400-2407 (West 1983); Kan. Stat. Ann. §§58-610 to −617 (Cum. Supp. 1982); Mass. Gen. Laws Ann. ch. 201B, §§1-7 (West 1983–84); Wis. Stat. Ann. §243.07 (West 1982).Google Scholar
Uniform Durable Power of Attorney Act, supra note 28.Google Scholar
Meyers, D., Medico-Legal Implications of Death and Dying (Lawyers Coop., Rochester, N.Y.) (Cum. Supp. 1982) at 50-51.Google Scholar
National Conference of Commissioners on Uniform State Laws, Uniform Law Commissioners’ Model Health Care Consent Act (Chicago, Ill.) (1982) at 4.Google Scholar
Id. at 16.Google Scholar
Deciding to Forego Treatment, supra note 31, at 145-48. “[T]he Commission's conclusion that both instruction and proxy directives are important for medical decisionmaking that respects patients’ wishes….” Id. at 145.Google Scholar
Delaware's natural death act explicitly provides for the appointment of an agent for medical decisionmaking if the patient becomes incapacitated. Del. Code Ann. tit. 16 §2502(b) (1982).Google Scholar
Returning the Mentally Disabled to the Community: Government Needs to Do More (Comptroller General's Office, Washington, D.C.) (1976).Google Scholar
See generally on abandonment, Annas, G. Glantz, L. Katz, B., The Rights of Doctors, Nurses and Allied Health Professionals (Avon Books, New York) (1981) at 249-51.Google Scholar
See generally on the caregiver/patient relationship, Fiscina, S., Medical Law for the Attending Physician (Southern Illinois University Press, Carbondale, Ill.) (1982) at 3-32.Google Scholar
See Kapp, M., Promoting the Legal Rights of Older Adults: Role of the Primary Care Physician, Journal of Legal Medicine 3(3): 367 (September 1982).Google ScholarPubMed