Q&As

The Medical Perspective: Capacity and Elder Abuse with Dr Jane Lonie

Monday April 30, 2018

Dr. Jane Lonie is a Consultant Clinical Neuropsychologist with over twenty years of experience in the assessment and management of cognitive dysfunction in adults and older adults. She is author of over twenty peer reviewed articles in the areas of dementia and capacity, (the most recent paper appearing in the Australian Bar Review) and maintains a special interest in provision of medico-legal opinion in matters relating to legal capacity.  She regularly provides assessment and reports in matters of questionable testamentary capacity, guardianship disputes, financial management orders, capacity to instruct, give evidence or appoint powers of attorney. During her twenty years of experience in specialist Neuropsychological practice, Dr. Lonie has provided assessments and reports for in excess of 3,500 patients. She offers private consultations to patients at the request of patients themselves, carers, referring clinicians and legal practitioners.

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Dr. Lonie has substantial experience in assessment, report writing and court appearance for the purposes of provision of expert opinion relating to; Areas of Expertise: Assessment of Cognitive function (Adults and Older Adults); Assessment of testamentary capacity (contemporaneous and retrospective); Guardianship disputes/ application reports; Financial management Capacity; Assessment of capacity to grant/revoke Powers of Attorney; Return to work assessment; Total and Permanent Disability insurance claims; Neuropsychological function in criminal matters; Capacity to give evidence. She is regularly engaged to provide assessment & opinion to; NSW Civil and Administrative Tribunal; NSW State Insurance Regulatory Authority; The Supreme Court of NSW; Legal Practices (including Glass Goodwin, Teece Hodgson & Ward, Hicksons Lawyers, Ben Aulich & Associates, Matthews Dooley & Gibson); Insurers (including; GIO, Suncorp, CBA, Allianz). Previous Engagements: Clinical Neuropsychologist, Macquarie Neurosurgery & Neurology; Clinical Neuropsychologist, Royal Ryde Rehabilitation Centre; Honorary Associate, Macquarie Centre for Cognitive Sciences & Macquarie University Psychology Department.

We had the pleasure of sitting down with Dr Jane recently to discuss key challenges and opportunities facing the industry today.

Read the Q&A below and hear more from Dr Jane at the Elder Abuse Legal Symposium seminar, being held on Wednesday 06 June at the Primus Hotel Sydney, Sydney.

What are some of the key trends and developments in neuropsychology that may be relevant to those dealing with capacity issues in elder abuse situations?

Underlying cognitive impairment is a key feature of an elderly client’s susceptibility to financial abuse. The limitations of using brief cognitive screening instruments, such as the MMSE to assess for more subtle yet functionally (and legally) significant impairments in a client's cognition have become well recognised. Furthermore, the importance of assessing the client’s executive functioning within the context of questionable decision making (i.e. their ability to plan, judge, reason, problem solve, appraise, monitor themselves and others), and the inability of interview or cognitive screening alone to detect such cognitive difficulties, is now widely accepted among medical experts.

The neuropsychological literature has seen a recent interest in the impact that damage to the frontal lobes (front parts) of the brain can have on a client’s ability to recognise or read the emotions and intentions of others and to appreciate or empathise with others (skills referred to as Theory of Mind or Social Cognition). Research findings have demonstrated the presence of early impairment in these abilities in a range of different forms of dementia and other conditions that are associated with damage to the frontal portions of the brain.

These findings have significant implications for a range of legal capacity matters, including those of testamentary capacity and undue influence, where a client’s ability to read the intention of others, appraise family members and to appreciate the wider emotional impact of their actions play a central role in their decision making capacity. The findings are of additional relevance in criminal matters, (and extend our more common place knowledge of the potential influence of other frontal symptoms such as impulsivity and poor judgement) wherein the alleged offender’s behaviour relates to an inability, or inaccuracies in their ability, to read the social and emotional context in which they find themselves.

Briefly, what are some of the different methods of assessing capacity and what determines which method should be used in a given situation?

A medical assessment of capacity typically involves the administration of one or more cognitive screening measures such as the MMSE. This situation (i.e. the continuing inappropriate reliance on cognitive screening measures as a proxy for assessing capacity) reflects the absence of training in the administration of more formal and sensitive measures of cognitive function among most medical professions. Where clients score poorly on cognitive screening measures (i.e <20/30 on the MMSE), together with findings on clinical interview and questioning around the relevant legal criteria, this may provide sufficient evidence for formulation of an opinion around incapacity. In a majority of contested capacity cases, however, client’s exhibit a mild-moderate range of impairment on the MMSE i.e. scoring between 20/30 & 30/30. In these situations, the MMSE tells us nothing about the client’s ability to plan, judge, reason, ability to read emotion and intent in others or understand the emotional positioning of others, solve problems, remember events/information of relevance to the decision from the distant past, or hold information in mind in order to consider multiple things simultaneously.

Each of these cognitive processes are integral to decision making. Without these cognitive abilities, an elderly client becomes reliant on one or more trusted others to assist them or to perform the deficient function on their behalf.

In doing so, the client places themselves at risk of influence and exploitation.

“In the context of elder abuse, financial exploitation and will-making, the primary condition to be aware of is that of dementia. Three in every ten clients over the age of 80 years and one in every ten clients over the age of 65 will be suffering with dementia.”

What should legal practitioners keep in mind regarding the range of cognitive and psychiatric disorders that can impact capacity?

In the context of elder abuse, financial exploitation and will-making, the primary condition to be aware of is that of dementia. Three in every ten clients over the age of 80 years and one in every ten clients over the age of 65 will be suffering with dementia. Head injury and stroke may also affect brain function and legal capacity and render a client vulnerable to financial exploitation or abuse. It is important to be aware of the fact that cognitive deficits typically predate the point at which dementia is diagnosed by a number of years. As such, legal capacity may be lost prior to the point at which a client’s GP has diagnosed them as suffering with dementia.

Are there any misconceptions that you see some legal practitioners have regarding capacity?

In providing opinions of a retrospective nature around testamentary capacity, it is evident that solicitors at times equate the practice of reading aloud a will to a client with ensuring their understanding of the will and the client’s testamentary capacity. A similar course of action is often followed in respect of other business or legal transactions, where the solicitor or financial advisor ‘reads through’ the relevant documentation ‘with’ the client. It is important to realise that the practice of reading aloud ensures neither the comprehension nor the legal capacity of the client. It is entirely possible for a client to answer closed questions that are put to him/her, replying with ‘yes’ or ‘no’ or other stereotypical responses, without any understanding of what is being proposed. Similarly, it is entirely possible for a client to possess an awareness and understanding of the content and directions laid out in a will but not retain the required levels of judgement and problem solving ability to properly appreciate the effect of distributing the estate in the manner proposed, nor to seek out and consider alternative means of estate distribution. Many legal practitioners falsely assume that all medical professions (GPs, neurologists, psychiatrists and geriatricians) possess the training and skill set to objectively assess cognitive function at a level beyond cognitive screening. This aspect of neuropsychology sets the discipline apart from the other medical professions that are typically involved in the provision of expert opinion around matters of legal capacity. It is important to give proper consideration to the skill set required of the medical expert in relation to the circumstances of your individual clients in order to ensure that matters in question are appropriately and comprehensively addressed.

“It is important to give proper consideration to the skill set required of the medical expert in relation to the circumstances of your individual clients in order to ensure that matters in question are appropriately and comprehensively addressed.”

What’s something that legal practitioners should keep in mind regarding the relationship between capacity and elder abuse?

As noted above, cognitive impairment is a major, if not the most major, factor rendering elderly client’s susceptible to financial abuse.

Although the concepts of undue influence and capacity are held as separate considerations in law, a review of the case law over the past 10 years reveals a total of 7 cases in which undue influence was found. Of these 7 cases, only one saw the will overturned on the basis of undue influence without reference to the co-existence of cognitive impairment and potential loss of testamentary capacity.

Arguments have been made in support of an option for assisted or supported decision making in cases where a client lacks capacity to undertake a legal transaction of their own accord, although it is felt they would be capable of doing so with the assistance of another person.

Whilst many are attracted to the concept of supported decision making in a theoretical sense, the practical uncertainties of supported decision-making remain under explored. Of primary concern, is the task of differentiating between supported decision making and undue influence. On what basis would this be determined; the presence of red flags alone does not ensure undue influence. A similar set of cognitive limitations are likely to render an individual client as in need of support in decision making as those rending the client at risk of undue influence.

“Many individuals with cognitive impairment come to master the art of hiding their impairment through a combination of attributing lapses in memory to other causes and answering questions in a roundabout or off the topic manner, in order to give the impression of mental alertness whilst avoiding the need to provide information of a specific nature and/or details.”

Do you have any tips for working with a client with diminished capacity?

It is important to be aware of the possibility that clients with diminished capacity may not retain insight into their cognitive loss. As a result, it is unreasonable to expect that a client with diminished capacity will bring this to your attention of their ownaccord. Furthermore, many individuals with cognitive impairment come to master the art of hiding their impairment through a combination of attributing lapses in memory to other causes and answering questions in a roundabout or off the topic manner, in order to give the impression of mental alertness whilst avoiding the need to provide information of a specific nature and/or details.It is also worth being aware of the fact that family members of clients can have varying levels of insight and understanding around their parents cognitive function and the causes underlying any difficulties they may be exhibiting.

What are some strategies that can be used when dealing with tense situations involving conflict amongst a person with diminished capacity, their family or carers, and a third-party such as a medical or legal professional?

In my experience, a majority of such situations arise as a result of one or more of the following:

1. Inadequate communication between the relevant legal and medical professionals. This can occur in the context of the medical professional lacking the requisite knowledge of the relevant legal test and how to assess for this and a resultant ‘fear’ of undertaking work of a legal nature.

2. Inadequate assessment, investigation and communication between the relevant medical professional, the client and relevant members of the client’s family around matters of impaired cognitive function, its cause, course and manifestations.

3. An absence of insight on the part of the client around their cognitive impairment and the implications (legal and otherwise) thereof.

As a first step, it is therefore important to determine which of the above barriers are present. In the case of (1) and (2), further discussion and onward referral can help to remediate conflict. The situation at (3) is more difficult to resolve in a direct manner with the client and will often require the support of an intermediary (preferably a supportive family member).

How can a neuropsychologist assist in dealing with medico-legal issues related to capacity?

Neuropsychologists are in the unique position of being able to identify cognitive impairments underlying incapacity and measure their severity in an entirely objective and scientific manner. As a result, the opinions provided are of a scientific and psychometric as opposed to subjective basis. This is advantageous in a legal context. The discipline of neuropsychology is concerned with knowledge of brain behaviour relationships. Neuropsychologists have the training and skill set to not only assess for underlying cognitive impairment with the potential to impact upon capacity in a sensitive and objective manner, but also to understand and explain how impairment in one or more areas of a client’s brain function impacts upon their ability to meet the relevant legal criteria.

Neuropsychologists are therefore well-placed to provide an objective, robust scientific reasoning base for opinions put forward around matters of capacity within a legal context. Neuropsychologists who have experience working with the older adult population, possess a detailed understanding of which parts of the brain (and which cognitive functions) are affected by the various forms of dementia and other medical conditions giving rise to cognitive impairment that may affect a client’s capacity. Their expertise may be of value in both contemporaneous and retrospective capacity contests. Neuropsychologists receive formal training in the assessment of different aspects of legal capacity including those relating to issues of guardianship and powers of attorney.

What are some tips you can offer as to how legal practitioners can most effectively and efficiently work with medical experts on legal matters?

I would suggest that a helpful first step is to identify and clearly articulate the questions/matters around which you are seeking medical clarification or opinion. From here, it is important to identify the relevant skills set you require or which medical profession is best equipped to provide you with assistance or an opinion. It may be necessary to discuss the matter with a number of different fields of medical expert (depending on how honest they are!) prior to arriving at the relevant profession and the relevant professional within that profession. Where possible, engage with medical professionals who are comfortable and familiar with working in a legal context and providing reports and opinions for legal purposes. On receipt of an initial letter of instruction, and once the medical expert has had the opportunity to read the relevant background correspondence, it may be worthwhile exchanging preliminary thoughts prior to engaging the expert to assess the client and/or to complete a written report of opinion in the matter. There may be outstanding material that is required by the expert in order to offer an opinion. The expert may assist further in the formulation of additional issues of relevance that might be addressed in the report. Where instruction is provided to medical practitioner with limited medico-legal experience, it is important to ensure that the relevant legal criteria and supporting judgements are conveyed within the letter of instruction.

Know more about Dr Jane Lonie by visiting her website at www.janelonie.com.
Dr Jane Lonie, MSc, PhD
Clinical Neuropsychologist
Tel: 0449 670 754

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