Elder mistreatment, defined as the abuse and neglect of older !persons, includes physical, psychological and sexual abuse, caregiver and self-neglect, and financial exploitation. Three types of state legislation address elder mistreatment: adult protective services (APS), elder abuse-specific statutes and institutional elder abuse laws (Tatara, 1995). Adult protective services and elder abuse-specific legislation provide similar services but vary in their age-specific foci: the minimiim age of persons served by elder abuse-specific laws is 60 years of age while that of APS laws is 18 years of age. Due to their overlapping objectives, APS laws will hereafter refer to bolli APS and elder abuse-specific legislation. This article focuses on the legislative response to mistreated elders living at home or in other communitybased settings. Institutional mistreatment in nursing homes or personal care facilities is not included because the legal contract defining the relationship between the provider and recipient of care is addressed by an entirely different set of statutes and case law (Capezuti & Siegler, 1996). We analyze the critical aspects of APS legislation affecting nursing practice with older adults and propose a framework for an ideal protective service system.
APS POLICY DEVELOPMENT
Approximately one million older Americans are mistreated annually (U.S. Congress, 1991). This number, calculated from a random telephone survey of 2,020 older persons in the metropolitan Boston area, found an annual incidence of 26 cases and a prevalence rate of 32 incidents of mistreatment per 1,000 persons (Pillemer & Finkelhor, 1988). Although the study provided new statistical evidence of elder mistreatment, the problem has been recognized for over 20 years. In fact, fifty states and the District of Columbia have passed legislation to establish adult protective service programs. State APS statutes provide APS agencies with the authority to investigate cases of mistreatment and, in some states, fund services to alleviate the abusive or neglectful situation (Tatara, 1995).
APS legislation was developed as a system for reporting mistreatment, investigating cases, and delivering services. While many states have created quality APS systems, few have established systems mirroring the ideal. Ideal APS legislation should include four key components to ensure the system's integrity. First, reporters should be immune from civil and criminal liability; that is, individuals should be able to report suspected mistreatment without fear of legal retribution. Secondly, the law should establish procedures for emergency orders of protection to involuntarily remove vulnerable adults from unsafe environments. To secure an order of protection, APS workers must provide evidence to the court of the emergent nature of a situation. The judge then authorizes involuntary intervention of time-limited and specific protective services. A cognitively impaired older person with severe malnutrition and dehydration who requires hospitalization for treatment is a prime example of an appropriate situation for an emergency order of protection. A third necessary component of APS legislation is the delivery of special services for victims of mistreatment. Provisions for emergency shelter, home care, food and transportation, as well as legal counsel and health evaluations by physicians, psychiatrists, and /or nurses, may be included. Finally, and most importantly, legislation should include the appropriation of adequate funds to sustain a quality APS system. Reporting cases of elder mistreatment is useless without the financial ability to effectively intervene. Few states have established such systems.
The problem of elder abuse was first brought to the public's attention through a U.S. House of Representatives Select Committee on Aging report in 1978. The report, Elder Abuse: The Hidden Problem, ultimately led to a proposed federal bui for elder abuse. Modeled after the Child Abuse Prevention and Treatment Act of 1974, the bill promised funding to states with mandatory reporting laws (Cravedi, 1986; Faulkner, 1982; Mathews, 1988). Although the bill has been reintroduced to Congress several times in the last 15 years, it has failed to pass on the national level. This has not diminished its statewide success, however. Twenty-six of twentyseven states enacting APS statutes between 1980 and 1986 chose a mandatory reporting requirement (Elder Abuse Project 1986a; Tatara, 1995). Most of the state statutes, however, similar to the proposed federal law, were modeled after child abuse laws. These elder abuse laws, often criticized for equating older adults with children, are overshadowed with controversy.
THE CONTROVERSY OVER MANDATORY REPORTING LAWS
Forty-two states have APS laws containing mandatory reporting requirements directed toward health care and social service professionals (Elder Abuse Project 1986a; Stiegel, 1995a; Tatara, 1995). Mandatory reporting laws require the disclosure of suspected elder mistreatment despite the adult victims' wishes. In addition, APS agencies must investigate reported elder mistreatment cases by interviewing victims and others who may be knowledgeable about the case. Both the initial reporting and the subsequent investigation, conducted without the older adult victim's consent, are deemed necessary components of case discovery. This practice is based on the ethical principle of beneficence; reporters and investigators are obligated to act in a way that will benefit those who have been mistreated or are at risk of harm. The lack of consent implicit in mandatory reporting of elder mistreatment, however, is in direct opposition to the ethical principle of autonomy. Autonomy means respect of an individual's self-determination; both voluntary consent and confidentiality are derived from this principle (Gilbert, 1986).
The tradeoff between beneficence and autonomy can be partially explained by the history of mandatory reporting and its origins in child abuse statutes. Under the law, children are unable to protect themselves or make decisions in their own best interests. As such, the state, through child protective services, is authorized to evaluate suspected child mistreatment without the child's consent. In contrast to children, adults of all ages have the right to accept or reject medical treatment or social services. Despite this, APS legislation establishes the reporting and investigation of suspected elder mistreatment without an adult's consent.
APS laws that override adult consent negate presumed competence to make judgments concerning the consequences of their decisions (Regan, 1981). Protection of an older person's rights also includes the individual's right to make decisions that may be viewed by others as wrong or eccentric. Decisionally capable older adults have the right to refuse treatment even if doing so is potentially harmful (Dubler, 1988). In cases of an individual's refusal to consent for what is viewed by the health professional as necessary medical treatment, a psychiatric examination must provide the court with adequate evidence of mental incompetence. A temporary or permanent guardianship can be granted to allow others to decide "what is best" for the individual. One study, however, documented that guardianships were often granted by the court without adequate evidence of mental incompetence (Stevenson & Capezuti, 1991), thus, mandatory reporting can conflict with an older person's right to due process. This has been the impetus for many legal arguments against mandatory reporting (Faulkner, 1982; Formby, 1992; Garfield, 1991; Horstman, 1975; Krauskopf & Burnett, 1983; Lee, 1986; Lewis, 1986; Lynch, 1985; Macolini, 1995; Mathews, 1988; Metcalf, 1986; Regan, 1978, 1981).
Further complicating the question of mandatory reporting are situations in which victims chose to protect their abusers. There are several reasons why a mistreated person may select this recourse including fear of retaliation, self-blame, economic dependency, or a previous pattern of co-dependent behavior between victim and abuser. The older person may have a long history of protecting and "saving" the abuser, often an alcohol, drug dependent or mentally ill adult child. The victim fears that APS intervention will lead to criminal action against the offending family member. Although some family situations may seem suboptimal, the alternatives available to the victim may be perceived as worse (Kapp, 1995). For example, victims may hesitate to report because the abuser provides personal care assistance, which, if taken away, may result in the victim's institutionalization (Garfield, 1991; Quinn, 1985).
Given the complex interaction between family or interpersonal dynamics and elder mistreatment laws, nurses involved in the care of suspected abused elders are often faced with an ethical dilemma. Not reporting violates the nurses' mandated responsibility, however, reporting mistreatment may damage the therapeutic nurse /patient relationship (Jones, 1994). Since there is no guarantee that reporting will result in successful APS intervention, nurses may actually place reported elders in a more vulnerable position. This dilemma may prevent nurses from reporting.
EMPIRICAL EVIDENCE AGAINST MANDATORY REPORTING
The major impetus behind mandatory reporting legislation is to enhance case detection. Several surveys demonstrated an increase in the numbers of reported elder mistreatment cases after passage of mandatory reporting. However, many other studies show that increased caseloads without increased funding for staff or services create numerous problems.
Fredriksen (1989) compared a random sample of adult mistreatment cases in the year before and after the mandatory reporting requirement was instituted in Washington state. While there was an increase in referred cases after legislation, statistically significant increases were also noted in "the number of cases re-referred, clients being served by few as opposed to many agencies prior to referral, referred clients with no psychological or physical problems, and a number of cases resulting in no service as case outcomes" (Fredriksen, 1989, p. 59). These data, consistent with another study (Wolf & Pillemer, 1989) suggest that reporters are neither evaluating the clienf s situation adequately nor making appropriate APS referrals. Mandatory reporting places sole responsibility for intervention on APS. This is an unrealistic goal considering that funding for elder mistreatment intervention is absent or limited in most APS legislation (AMA, 1987; Cravedi, 1986).
The most disturbing finding of Fredriksen's (1989) research was the large number of re-referred cases. This finding suggested that initial APS contact was ineffective and that APS was unable to monitor its caseloads over time. When reporters realized that their re-referred cases were not successfully resolved, they stopped reporting altogether. This phenomenon was also demonstrated by Clark-Daniels, Daniels, and Baumhover (1989, 1990) in their analyses of three groups of mandated reporters in Alabama.
Nurses and physicians, practicing in bom community-based and hos-
pital settings, demonstrated negative attitudes toward the mandatory reporting law in Alabama (ClarkDaniels, Daniels, & Baumhover, 1989, 1990). Nurses believed they were abandoning older persons to a system that investigated but failed to provide necessary services to alleviate or prevent further abuse (ClarkDaniels, Daniels, & Baumhover, 1989). These findings and others Qones, 1994; O'Brien, 1986) demonstrate that knowledgeable evaluation and reporting of appropriate cases to APS was not in the sole domain of mandatory reporting laws. Instead, educating health professionals and other critical reporters about elder mistreatment has been found more effective in raising awareness and promoting active intervention (General Accounting Office, 1991; Hyman, Schillinger, & Lo, 1995; Tilden, Schmidt, Limandri, Chiodo, Garland, & Loveless, 1994). After reporters are trained and encouraged to report cases to APS, however, their efforts must be reinforced by successful outcomes for referred victims. A continuously understaffed and poorly funded APS system will eventually discourage reporting. Mandatory reporting alone will not solve the problem of elder mistreatment.
Although 41 states enacted mandatory reporting legislation before or just after proposed federal legislation, ten states did not immediately follow suit. After 1987, five of those ten states enacted APS legislation with voluntary reporting laws. Responding to problems encountered in states that had quickly passed mandatory reporting legislation in the early 1980s, several states conducted studies and /or commissioned task forces to examine the issue (Fiegener, Fiegener, & Meszaros, 1989; Gioglio, 1982; Sargentini, 1988). For example, Illinois enacted a voluntary reporting law based on the rationale that "a voluntary-reporting system, supplemented with public-education materials developed for those professional groups most likely to encounter abuse situations, is the least restrictive approach to assisting abused older persons in Illinois and can be more effective man mandatory reporting (Healek, Hill, & Stahl, 1989, p. 202)." The issue between mandatory and voluntary reporting remains controversial.
APS STATUTES IN THE UNITED STATES
The Table provides a summary of the essential aspects of APS laws in each of the 50 states and the District of Columbia. The Table was compiled using findings from two surveys of state elder mistreatment laws (Stiege!, 1995a; Tatara, 1995) and a review of each state's statutes. The statute search was conducted using Westlaw, the computer-assisted legal research service of West Publishing Company. It provided the laws and any amendments current through the last legislative session of each state.
Beside differences in reporting requirements, the statutes vary widely in purpose, definition, immunity and confidentiality provisions, implementation agency, investigation procedures, and service components (Salend, Kane, Satz, & Pynoos, 1984). The types and definitions of mistreatment covered by the law is important information for potential reporters. This is especially significant in self-neglect cases which result from "an adult's inability, due to physical and /or mental impairments or diminished capacity, to perform self-care tasks...to maintain physical health.. .general safety and /or manage financial affairs" (Duke, 1991, p. 27). Self-neglect is a unique category of mistreatment when compared to child abuse or domestic violence. In states where the APS statute includes self-neglect, it is the most frequently reported type of mistreatment (Salend, Kane, Satz, & Pynoos, 1984). Most selfneglecting elders have functional or mental impairments and a poor social network (Lachs, Berkman, Fulmer, & Horwitz, 1994; Longres, 1995). In the 11 states in which the APS law excludes self-neglecting elders, there are few options for appropriate referrals, especially during crisis situations (Table).
To most effectively assist incompetent self-neglecting elders facing life-threatening situations, state laws should include provisions for involuntary emergency intervention. To determine an individual's legal incompetence, a judge must base his decision on standards specific to each state's guardianship law (Stevenson & Capezuti, 1991). The criterion usually includes evidence of a person's clinical incompetence; an evaluation is made by a physician or other clinician that attests to the person's inability to make independent decisions. The court, depending on the state's APS law, may grant a petition for a time-limited emergency intervention without the victim's consent. Effective APS programs should provide substituted decision-making to assist incompetent persons out of dangerous situations (Regan, 1978). The underlying principle of APS practice, however, is the least restrictive alternative possible; this directs the investigators to find interventions that alleviate life-threatening situations while promoting victims' personal freedom and choice (Byers & Hendricks, 1993). Emergency intervention is considered a "last resort" and is used infrequently when APS investigators have other available options.
Elder Mistreatment Statutes
Nurses are specified as mandatory reporters in 23 states and as "health care professionals, or anyone with the knowledge or cause to believe" in 16 others with mandatory reporting requirements (Table; Elder Abuse Project 1986a; Tatara, 1995). Most mandatory reporting laws include civil and criminal penalties for failure to report including fines of $100 to $1,000 and /or 3 months to 6 years imprisonment (Elder Abuse Project 1986a; Formby, 1992; Tatara, 1995). Between 1989 and 1992 only five states (California, Florida, Montana, Utah, and West Virginia) prosecuted mandatory reporters for "failure to report" (Tatara, 1995). Nine states do not identify penalties for failure to report (Table). States without penalties do not provide a legal incentive for reporting and are more similar to states with voluntary laws that rely on the nurse's discretion in determining appropriate referral for APS intervention.
Eight states have voluntary reporting laws: Colorado, Illinois, New Jersey, New York, North Dakota, Pennsylvania, South Dakota, and Wisconsin. Voluntary reporting, like mandatory reporting, does not require that reporters know with absolute certainty whether mistreatment has occurred (Kapp, 1995; Palincsar & Cobb, 1982). Rather, the reporter refers cases under suspicion for abuse or neglect. The responsibility for substantiation of acts of mistreatment lies with the designated investigator, usually the APS unit of a state department of human/ social services or similar agency (Byers & Hendricks, 1993; Elder Abuse Project 1986a; Kapp, 1995; Tatara, 1995). In situations where the nurse believes the victim is being coerced by the perpetrator not to disclose the situation, the nurse may still report. The report, however, must include clear documentation of the nurse's suspicions. This is a necessary step to prevent potential liability since all APS laws provide immunity for those reporting in "good faith." The nurse must show that she acted with good intention and without malicious purpose against the victim or alleged perpetrator.
In some states, nurses cooperating with an investigation are protected from retaliation, discrimination, or disciplinary action by their employers (Table). For example, in Pennsylvania, a nurse may füe a civil lawsuit for compensatory and punitive damages if she is harassed at her place of employment after filing a report (Pennsylvania Act 79 Older Adult Protective Services: 35 P.S. § § 10211-10224). Most state APS laws assure confidentiality of the reporting records including the reporter's identity that further protect the nurse from liability or loss of employment (Table). Some states also allow anonymity for reporters (Elder Abuse Project 1986a; Tatara, 1995). In a study of state reporting systems related to elder mistreatment, 27% of reporters requested confidentiality (Elder Abuse Project, 1986b).
Additionally, Joint Commission on the Accreditation of Health Care Organizations (JCAHO) standards require nurses working in emergency departments to make referrals for follow-up of elder mistreatment or domestic violence victims. AU emergency departments are required to have written policies and procedures concerning mistreatment, a current list of referral agencies, and annual education for employees in mistreatment identification and intervention (JCAHO, 1995). Several published resources are available that describe the standard of care for elder mistreatment detection and include sample policies and procedures (Aravanis et al., 1993; Beth Israel, 1986, Fulmer, Street, & Carr, 1984; Jones, Dougherty, Scheible, & Cunningham, 1988; Lachs & Fulmer, 1993; Lachs & Pillemer, 1995; Paris, Meier, Goldstein, Weiss, & Fein, 1995). JCAHO standards and case law also govern the hospital's duty to discharge patients to appropriate settings. For example, an older person "dumped" in an emergency department by neglectful family members who refuse to take the older person home cannot be discharged to the "street." (Conrad, 1992; JCAHO, 1995). Finally, all nurses should know the limits of their states' APS system and the resources available for victims of mistreatment. These vary considerably between states and may or may not include emergency intervention, case management, housing choices including emergency shelter, help with basics such as food, clothing, or heat, personal care services, medical/psychiatric care, and legal assistance (Table). Also, services for reporters can include a 24-hour, statewide, and /or toll-free telephone system for reporting and a central registry for reports (Table). Legislative endorsement of such services, however, does not guarantee adequate funding for service delivery (Byers & Hendricks, 1993; Gottlich, 1994). Nurses need to advocate for laws that provide adequate funding and services for mistreated elders to ensure a responsible and effective APS system.
Despite the limitations of some APS systems, nurses can make a significant contribution to the outcomes experienced by mistreated older persons. The report submitted to APS can assist the APS worker's assessment as well as facilitate an effective plan. Minimally, the nurse's report needs to describe the nature of the suspected mistreatment, as well as the older person's cognitive, functional, and health status. The nurse may also include observations or reports of other providers. For example: "impaired cognition as demonstrated by inability to choose appropriate dress for the season as per Ms. Jones, personal care assistant and Folstein Mini-Mental State Examination score of 15/30 on 1/12/97 during home visit by Ms. Smith, RN." Physical evidence, such as pressure ulcers, need to be described thoroughly. Drawings and especially photographs can be helpful. The health professional's role in the comprehensive evaluation of mistreated elders has been well described (Aravanis et al., 1993; Capezuti, Yurkow, & Goldberg, 1995; Lachs & Pillemer, 1995; Paris, Meier, Goldstein, Weiss, & Fein, 1995). Because most APS workers are not health professionals but intervene with older persons with complex mental and /or physical health problems, the nurse's report can provide vital information for the APS worker's investigation.
Additionally, the nurse's can help in formulating a care plan to meet the elder's unique situation. The should include the names, es, and phone numbers of all care and social service involved in the care of the mistreated older person as well as the "informal support network" such as tives, friends, neighbors, and members. Also, information ing what services (formal and mal) have "worked" and those have not (including the should be described. The should incorporate the older son's response to the nurse's seling efforts regarding the situation and the nurse's of the victim and perpetrator's tion to APS investigation. If nurse fears reprisal by the tor, APS will need to assist the in making arrangements for ued visits while ensuring for safety needs of both the nurse the APS worker. This often requires coordinated effort with law ment.
Passage of legislation is a public response to social such as elder (Callahan, 1988). Unfortunately, statutes are meaningless without inclusion of an adequately funded and coordinated broad-based vice strategy (Callahan, 1988; 1994). It is unrealistic to believe APS can be the sole agency respond to elder Many national projects have strated the need for and multidisciplinary cooperation with APS to most effectively deal with the problem (Bergeron, 1989; Capezuti, Yurkow, & Goldberg, 1995; Hwalek, Williamson, & Stahl, 1991; Nerenberg et al., 1990; Stiegel, 1995a, 1995b). Although every state now has some legislation, it is not a fait accompli; 31 states have passed amendments to clarify or modify varying aspects of their original law between 1990 and 1993 in response to outdated or unworkable provisions (Tatara, 1995). Nurses need to focus their efforts toward promoting collaboration between those most likely to detect and report elder mistreatment and those who carry out investigations and interventions.
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Elder Mistreatment Statutes