Even when a person can satisfy these criteria, social considerations and societal biases will influence many determinations. The capacity to make decisions is most often sought when the outcomes are high stakes and the patient’s wishes do not conform to the clinician’s recommendations. Stated differently, patients may be perceived to be competent to say “yes” to a clinician but not competent to say “no.”

In one view, great weight should be given to a marginally competent patient’s stated preferences unless there is avoidable suffering or a clear risk of severe and avoidable harm; in these circumstances, coercive activity is more easily acceptable. Defining what level of risk is unacceptable may still remain a cause of argument.

In another view, a patient’s dignity (and the social contract) may require action if the patient’s situation surpasses some level of offensiveness even if no physical harm results [4]. Extreme squalor, indifference to personal hygiene, and very odd social behaviors or relationships may provoke some clinicians to diagnose abuse or self-neglect and alert the authorities. Ignoring a cognitively impaired or mentally ill person who is being exploited or simply can no longer care for herself is unconscionable. But certifying that someone is incapacitated and then depriving her of her freedom simply to enforce a socially acceptable lifestyle is also wrong. Personal as well as societal biases will influence many determinations.

The idea of capacity is closely linked to philosophical ideas about free will and personal responsibility; this is one reason the determination of capacity will remain controversial and difficult. The practical importance of this observation is that for any person who is conversational, the only valid way to judge capacity is to have a conversation with that person. Documentation of capacity is best done by a careful record of that conversation. Scores on popular cognitive tests have little additional value. The ability to describe the consequences of the proposed options and to explain why a particular option is being chosen is enough to satisfy most clinicians.

A sample note is given in Box 11.1. For patients whose communication abilities are limited, the determination of capacity will be more difficult. A plain English description of the patient’s understanding of and reasoning about treatment options is generally the best way to document how the clinician judged the patient to have or lack decisional capacity about the specific management plan in question.

Box 11.2 is taken from the court record of a man with severe traumatic brain injury suffered 4 years earlier. The proceeding is to determine whether his feeding tube should be replaced to prolong his life (which would arguably have violated his previously expressed wishes). His competence is at issue. Under life-and-death circumstances, experts could not decisively determine whether the patient had capacity. Questions about competence may range from the trivial to the unsolvable [5].

On this shaky platform are built the legal, ethical, and clinical frameworks for both elder mistreatment and advance directives.

Tolstoy begins Anna Karenina, “All happy families are alike. But every unhappy family is unhappy in its own way.” Most care at home is provided with dedication and generosity and much of it in highly constrained circumstances. Some degree of caregiver impatience, burnout, and anger are probably common. Patient, caregiver, and circumstantial factors may increase the risk of decompensation. When the patient is somehow too vulnerable and the interactions are too cruel, a patient may be said to suffer “abuse.” As with the concept of capacity, some cases are clear-cut and beyond dispute. In many situations, however, there is no bright line but rather a continuous gradation from niceness to criminal behavior occurring in the context of a family with its history and a cultural understanding that may differ from the clinician’s.

In this section, we will consider homebound, vulnerable adults of any age. Because most such adults are elderly, the term “elder abuse” is commonly used.

The federal National Center on Elder Abuse notes that “Federal definitions of elder abuse first appeared in the 1987 Amendments to the Older Americans Act, however, these definitions are guidelines. Each state defines elder abuse according to its unique statutes and regulations, and definitions vary from state to state. Researchers also use varying definitions to describe and study the problem” [6]. Definitions are variable and generally unhelpful; focused on risk, harm, and safety; and often discussed in the language of rights and victims. Table 11.2 shows a common schema for subtyping abuse and neglect.

Table 11.3 lists a variety of definitions [7–10]. Purported signs of abuse and neglect include pressure sores, weight loss, and medication nonadherence. The first two of these are common among chronically ill patients who are receiving absolutely good care. The third is highly prevalent in all care settings and patient groups. Here are three situations which might be classified differently according to the different definitions:
Each of these three interactions meets at least one of the definitions of elder abuse. How long a person may be left wet in a diaper, if there are no adverse medical consequences, before a finding of neglect should be made is a very complex question indeed.