Friday, April 24, 2015
For me, a chilling moment in the trial of State of Iowa v. Henry Rayhons came during the prosecution's case-in-chief, with the reported testimony of a physician at Mrs. Rayhons' nursing home. According to the coverage of the trial, the doctor testified that based on her decreasing score on the BIMS (Brief Interview for Mental Status), he determined Donna Rayhons lacked the cognitive ability to give consent to sex. In contrast, a defense expert was reported to have testified it was a "medical mistake" to have used such minimal evaluations of capacity to draw an arbitrary line between permission to kiss or hug, as opposed to engaging in more intimate relations.
The contrasting testimony put a spotlight on the very serious questions of who makes decisions -- and how decisions are made -- about "capacity" to engage in essential behaviors such as sex for persons with dementia. This topic is further explored, with great prescience, by a law student at the University of Illinois in the current issue of the Elder Law Journal, written well before the Rayhons trial. Stephanie Tang, who was also the managing editor for the journal in 2014-15, writes:
To best balance the interests of the elderly with those of the states, states should develop and adopt a model assessment tool that employs a clinical perspective to evaluate a person’s capacity to consent to sexual activity. Model assessment tools provide courts with a clear and objective standard, which would increase predictability and uniformity of court decisions.
Moreover, identifying specific cognitive functions that need to be assessed would constitute a major step forward in those states that have not yet done so.This Note advocates for the use of two tests: 1) the Socio-Sexual Knowledge and Attitudes Test (SSKAT) and 2) Cognisat. Authors have previously argued for the adoption of the SSKAT to assess sexual capacity to consent among mentally retarded patients. The American Bar Association and American Psychological Association cited use of Cognistat to assess cognitive capacity to consent to sexual activity among hypothetical patients with diminished capacity.
To put this simply, in her article,When "Yes" Might Mean "No": Standardizing State Criteria to Validate The Capacity to Consent to Sexual Activity for Elderly with Neurocognitive Disorders, Ms. Tang is arguing that far more sophisticated and appropriate tools are available and should be used to assist in evaluating capacity to participate in sex. Brava, Ms. Tang!
Ms. Tang's article draws in major part on the detailed factual reporting of Bryan Gruley for Bloomberg News, in his important series on rights of the elderly with dementia. Mr. Gruley's articles began to appear as early as 2013, and became even more relevant with his investigation of the events underlying the 2014 charges against Mr. Rayhons.
Wednesday, April 22, 2015
On Wednesday, April 22, 2015, at approximately 2:30 p.m. central time, after almost two full days of deliberations on a single count of statutory sexual abuse of his wife, a nursing home resident with dementia, the jury found 79-year-old former Iowa legislator Henry Rayhons NOT GUILTY.
As shown with pictures posted by KIMT.com Twitter, there are many tears in the courtroom.
Interestingly, as another indication of the State's aggressive prosecution of this case, the prosecutor filed a "Statement" with the court in Garner, Iowa yesterday, while the jury was still deliberating, asking that in the event of a conviction, Mr. Rayhons be taken immediately into custody. The explanation? The state contended that under Iowa law, sexual abuse in the third degree is covered by Iowa Code Section 709.4.(2)(a), and that any exception to "forcible felony" treatment for criminal sexual acts occurring between husband and wife does not apply, because they were not "cohabiting," at the time.
Therefore, argued the state, if convicted Mr. Rayhons would have been barred from posting bail pending appeal. Further, the prosecution argued the defendant would not have been eligible for a deferred or suspended sentence, and, once released, would be subject to restrictive, special parole terms for the rest of his life. See Iowa Code Section 701.11(1) on "forcible felony." See also Iowa Code Section 811.1. See also Iowa Code Section 907.3.
Fortunately for this defendant, the incarceration arguments are now moot.
This case has demonstrated, all too clearly, that we need better understanding of the relationship between dementia and legal capacity. The Rayhons case challenges us to consider carefully the appropriate balance between protection of individuals with Alzheimer's and recognition of fundamental human rights.
As additional details emerge, we'll supplement this post.
Here are two early stories on the aftermath of the jury's verdict:
From Bloomberg News' Bryan Gruley: Iowa Man Accused of Raping Wife with Alzheimer's is Acquitted, noting that this case "offered a rare look at a complex dilemma that will become more common as the 65-and-over population expands."
From The Des Moines Register (Tony Leys): Jury finds Henry Rayhons Not Guilty.
And from Iowa Public Radio and the local Globe Gazette, a brief video interview with a tearful Henry Rayhons. (Note the comments posted by viewers after the interview.)
April 22, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)
Tuesday, April 21, 2015
Coverage of the closing arguments on Monday, from State of Iowa v. Henry Rahons, including video excerpts from each side's attorney, is provided here by the Des Moines Register.
According to KIMT.com's twitter feed, attorneys and Mr. Rayhons went into the judge's chambers at about 3:30 p.m. Central time on Tuesday, the second day of deliberations -- could a jury verdict be close?
UPDATE: Apparently the conference in the judge's chambers was to address jury questions. At approximately 4:15 on Tuesday, April 21, the jury "left for the day," to return to deliberations on Wednesday.
April 21, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
On April 20, while the jury was hearing oral arguments on the high profile case of State of Iowa v. Henry Rayhons, I joined an academic colleague, Dr. Claire Flaherty, a neuropsychologist from Penn State Hershey Medical Center, to discuss the implications of this criminal case, during a Smart Talk public radio program in central Pennsylvania. Claire and I have been engaged in a cross-discipline dialogue for about two years about a host of legal questions that can arise with a diagnosis of any form of dementia, including FTD and Alzheimer's Disease. This time we were talking about the challenges of finding the right balance between protection from harm and recognition of human rights when the issue is sexual intimacy. Dr. Flaherty's clinical background, including her experience counseling individuals and families who are coping with the realities of dementia, helped make this a very down-to-earth conversation on a sensitive subject for live radio.
Our half of the program, was preceded by Joanne Carroll, president of TransCentral PA, and therapist and social worker Alexis Lake, a therapist and social worker who counsels LGBT clients, who discussed challenges and rights for transgender, gay, lesbian, and bi-sexual people, and the progress that has been made in the last decade, even as more progress needs to be made. I was struck by their frankness, both about their personal journeys, and the potential costs for anyone transitioning, including simple costs associated with new documents of identity, to bigger questions about how to pay for any surgeries, including whether Medicare will pay for the older person's surgery.
UPDATE: Here is an alternative link to the Smart Talk Program described above, on "SoundCloud," and available in three segments, each about 15 to 20 minutes in length. Our discussion of dementia and consent to sexual relations starts at about the 9 minute mark of Segment B.
April 21, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Medicare, Science, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Monday, April 20, 2015
On Monday, April 20, prosecution and defense made closing arguments in the trial of State of Iowa v. Henry Rayhons, a former state legislator, for alleged sexual abuse of his wife with Alzheimer's.
KIMT.Com's twitter account has photos combined with excerpts from the arguments, here.
Bryan Gruley, whose detailed December 2014 feature article for Bloomberg News on the Rayhon couple's history and the charges, remains the best account of the anticipated issues, has written a follow-up story for Bloomberg News about the trial itself, pointing to the potential long-range impact from the case. See today's Questions about Sex and Dementia Go to Jury for the First Time.
As before, if new details become available on public media about the trial, including any jury verdict today, we'll capture them on this post, with an update.
UPDATE: According to Iowa media sources, the jury adjourned for the day about 5 p.m. central time, after approximately an hour and a half of deliberations, including two questions from the jury.
April 20, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, April 17, 2015
On April 17, the trial continued in State of Iowa v. Henry Rayhons. The evidence included:
- Testimony by a Des Moines geriatrician, Robert Bender: Testified as an expert witness for the defense to explain that Alzheimer's patients often retain sexual desire, even after losing other brain functions such as speech or memory, and can make a "meaningful decision" to be intimate with the person. According to the Des Moines Register, Dr. Bender testified that it would be a "medical mistake" for a doctor to draw an arbitrary line between allowing a patient to kiss and hug but not allowing her to have sex, unless there was evidence the patient was being harmed by the activity.
Further, the defendant Henry Rayhons testified, giving his memory of key events, stating he did not have "sexual intercourse" with his wife on the night in question, while also describing what he means by their "playing." A video segment of his trial testimony is available here. Additional print media coverage of the final day of testimony on Friday is available here.
Additional audio-recording evidence was reportedly presented, from a care conference between Henry, his wife's daughters, and the nursing home staff at which the prosecution alleges Mr. Rayhons was advised of the doctor's conclusion about his wife's inability to consent to sexual activity. Both parties rested their cases on Friday, and according to media reports, the trial is scheduled to resume on Monday, April 27, with closing arguments by both the prosecution and defense.
As additional media reports from the trial today become available, I will supplement this post.
Additional, more comprehensive coverage of the testimony of Henry Rayhons is provided by Bloomburg News' Brian Gruley in Sex with your Wife or Rape? Husband of Alzheimer's Patient Takes the Stand.
In addition, Bloomberg News has "Let's Talk About Sex ... in Nursing Homes," an infographic that charts state policies on sexual rights of nursing home residents and other relevant demographics on population aging.
April 17, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)
Thursday, April 16, 2015
April 16, 2015 was the sixth day of trial in the criminal prosecution for sexual abuse in the third degree, in State of Iowa v. Henry Rayhons. The prosecution completed its case-in-chief, the trial judge denied defense counsel's motion for judgment of acquittal, and the defense counsel called several witnesses for Mr. Rayhons. Today's evidence, as described by various media sources linked below, included:
- Final Witness for the Prosecution: The state called a state criminologist to explain testing on various items of physical evidence,from the night in question. According to media coverage of the trial, the criminologist testified that "she did not find any seminal fluid in the sexual assault kit [on swabs from Donna taken on the night in question] but says that is not uncommon." She testified there "appeared to be a seminal fluid stain in the inside of Donna’s underwear," the same underwear that was alleged to have been deposited in a laundry hamper by the defendant on the night in question. Tests on the stain "detected DNA from [the defendant]."
- The First Witness for the Defense, the "Roommate:" The woman who shared Donna Rayhons' room in the nursing home the night on question, was reported as testifying that "Donna had become a good friend. Someone who she could count on to go to activities and speak with." She is reported to have testified she’s "uncomfortable talking about that day but says she does remember something happening, but only assumed that it was sex on the other side of the curtain."
- A Clinical Physician (and Assistant Professor of Medicine from the University of Iowa): The defendant's expert witness is reported as having given opinion testimony to the effect that based on review of evidence, ""I believe Donna would've been more likely to give consent than not."
- Patricia Wright, a Daughter of Donna Rayhons (called by the Defense): Reported as saying her mother "lit up" whenever Henry Rayhons entered the room.
- The Son and Daughter of Henry Rayhons: Describing their relationship with their father, their father's relationship with Donna, and their own respect for Donna.
As described by the Globe Gazette, there appeared to be especially poignant testimony from one of Donna's daughters, Patricia:
In July, Donna Lou Rayhons asked her daughter, Patricia Wright, if she had seen Henry. “He can’t come anymore,” Wright remembered her mother saying.
“Mom was talking very softly. Much more softly than she usually did and she kept putting her hand to her head. My impression was she was very sad,” Wright told the jury. “Then she would say things like ‘I love him. I love my girls. I love him. I love my girls.’ And she would say that kind of repeatedly.”
As more reports are published from the 6th day of the Rayhons trial, I will try to capture them here with a supplement to this Blog Post.
UPDATE: Here is a link to a more detailed account of the trial testimony on Thursday from The Des Moines Register, explaining that Donna Rayhons had three daughters, including Patricia, from a prior marriage. One of the other daughters testified for the prosecution.
April 16, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 15, 2015
On April 15, the trial proceedings in State of Iowa v. Henry Rayhons continued, after a day without courtroom proceedings.
The day started with testimony from an "Iowa DCI Agent" about a secret recording, two hours in length, that the agent made of his interview with Henry Rayhons on June 12, 2014, during which they discussed the couple's relationship and events surrounding the night of May 23, 2014 (the date of the alleged sexual abuse). Reading between the lines of early news reports, it appears the prosecution was planning or wanted to play excerpts from the recording as part of its case-in-chief, and the defense lawyer took the position that if anything comes in, the whole recording comes into evidence.
Here's a KIMT.com link to a story about this recording, including Rayhon's emotional reaction to the playing of the recording in the courtroom. Here's a link to KIMT's live twitter posts on the trial.
The above was available from the morning session of court. More updates on later proceedings will be posted here, if additional information on today's session becomes available.
Here is an "update" from news media in Iowa, focusing on alleged details from the tape-recorded interview by the DCI (Department of Criminal Investigations) Agent with Henry Rayhons a few days after the night in question. The prosecution appears to be offering segments as evidence that Rayhons "confessed" during the interview, while other segments appear to show his confusion and lack of awareness (or perhaps understanding) about the doctor's diagnosis.
I'm not clear whether this "interview" triggered Miranda warnings, or whether they were waived, but it appears the agent did not tell Rayhons it was being recorded.
More and more lessons seem to be emerging, regardless of the eventual verdict in this case. The more I hear of details from the trial, the more it amazes me how a March 2014 admission to a care facility, that apparently followed the daughters' reasonable concerns about the behavior of the wife, can fail to involve deeper family counseling, discussion and support for both the wife and the husband. This was a dramatic change in their relationship. My head is spinning with all of the missed opportunities for counseling, and, if necessary, mediation.
I'm seeing far more time spent on a criminal investigation about the night of May 23, 2014, than on counseling a 78-year-old man about what it might mean to have a wife in a nursing home in Iowa, where there are Iowa-specific laws about sexual conduct between married partners no longer cohabiting. I'm thinking the wife's daughters could have been assisted by sensitive counseling as well, both before and after March 23. But, I also suspect that there is no Medicare or insurance "billing code" for counseling the family members in this scenario.
And finally, here is late-day coverage by the Des Moines Register from the trial, also focusing on the investigator's recording: Rayhons told investigator he didn't force sex on wife.
April 15, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | TrackBack (0)
Tuesday, April 14, 2015
UPDATE: The jury trial of State of Iowa v. Henry Rayhons is scheduled to continue on Wednesday, April 15. There were no proceedings on Tuesday, April 14. In the meantime, here are additional relevant discussions, from several sources:
- New York Times: Sex, Dementia and a Husband on Trial at Age 78. The electronic version of the NYT on April 14 also carried the following as the Quotation of the Day:
QUOTATION OF THE DAY
"So much of aging and so much of being in a long-term care facility is about loss, loss of independence, loss of friends, loss of ability to use your body. Why would we want to diminish that?"
DANIEL REINGOLD, chief executive of the Hebrew Home in the Bronx, which pioneered a "sexual rights policy" for residents in 1995.
- From JUSTIA.Com: When Does an Alzheimer's Patient Lose the Capacity to Consent to Sex? by Cornell Law Professor Sherry F. Colb.
- From the Washington Post: When the Mind Falters, is Sex A Choice? by Marie-Therese Connolly, a thoughtful opinion piece written in 2009, discussing several challenging scenarios, some involving more casual relationships, or arguably more "extreme" facts, such as a "Wisconsin minister who regularly came to the nursing home to have sex with his comatose wife."
- From the Huffington Post: Iowa Case Sheds Spotlight on Whether People With Alzheimer's Can Consent to Sex.
I'll supplement the "Trial Reports" as additional information becomes available. Check back on Wednesday.
Monday, April 13, 2015
On April 13, the fourth day of the trial of State of Iowa v. Henry Rayhons, the prosecution continued presenting evidence in the state's case-in-chief. Here are links to news sources covering the day's events, including:
- From KIMT.com: Testimony of a physician from the care facility regarding his opinion regarding Donna's mental capacity, plus a description of video surveillance of the husband on the night in question, in which "you can see Donna being redirected to her room by Henry, after she had wandered through the halls. Nearly 30 minutes later, Henry is seen leaving the room [and depositing her underwear in a hamper]."
- From KIMT's Twitter feed: Excerpts of testimony from nurses and several staff members at the care center, including a report that a Care Center physician testified that "Just like an infant, a person can respond to stimuli. That doesn't involve any consent given."
- From the Des Moines Register: Reporting that a total of three doctors testified today and that "Dr. John Brady, who is medical director of Concord Care Center, testified that Donna Rayhons had severe dementia caused by Alzheimer's disease. He said any positive reaction to her husband's affectionate advances could be termed a 'primal response,' not a conscious decision to reciprocate."
Further, from the Des Moines Register, an account of the testimony of one of the physicians, a neurologist: "One of the doctors, neurologist Alireza Yarahmadi, disputed any notion that such an Alzheimer's patient could vary greatly in her ability to understand what was going on around her. 'When they're severe, they're going to stay severe,' Yarahmadi testified."
The trial is expected to continue on Wednesday, April 15 (corrected, after learning no proceedings on Tuesday).
April 13, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
University of Georgia Law Professor Elizabeth Weeks Leonard has a forthcoming article in the Minnesota Journal of Law, Science and Technology. Professor Leonard, working with graduate research assistants and colleagues from the University of Georgia's Institute of Gerontology, draws upon Georgia's recent experiences in implementing a state public health registry for Alzheimer's disease or similar dementias under legislation passed in 2014. The article provides guidance on how to navigate the legal and ethical issues that can arise in implementing such a registry.
This is a cutting edge program in its early stages, as described by the authors:
"This article offers a unique window into one state’s experience establishing an Alzheimer’s disease and related dementia registry. Georgia is the most recent of handful of states to adopt such a registry and, in doing so, has already committed to robust data collection practices along with clear commitment to protecting patients’ privacy. The authors were privileged to convene a group of stakeholders to brainstorm and submit rulemaking comments on Registry implementation to the Georgia Department of Public Health.
In addition, through further consultation with state leaders in gerontology and building on our own health law, public health, and legal services expertise, we offer additional recommended best practices for the Registry. We anticipate that Georgia is leading a nationwide trend in addressing the rapidly rising incidence of Alzheimer’s disease and related dementia with the aging population. Accordingly, our recommendations will be valuable not only for Georgia but also for other states that may decide to establish similar Alzheimer’s registries."
You can get an early look at "Best Practices for a State Alzheimer's Disease Registry: Lessons from Georgia," here on SSRN. Professor Leonard's research focuses on health care finance and regulation.
Friday, April 10, 2015
On April 10, the third day of the trial of State of Iowa v. Henry Rayhons, the prosecution offered its first witnesses. According to news sources, the evidence included:
- Testimony by an adult daughter of the alleged victim, the defendant's wife. She is reported as saying that she did not disapprove of the 2007 marriage between her widowed mother and the defendant, but that "in the years after the wedding, her mother began showing troubling signs of mental decline." By the spring 0f 2014, her mother appeared "very confused" and the daughter, who runs an agency for people with intellectual disabilities, observed disturbing behavior, including incidents of her mother's inappropriate and inadequate clothing, inability to use silverware, and an attempt to use a toilet to wash her hands. At a meeting a few weeks after her mother was moved from the couple's home to a care facility, the "doctor told the family," including the defendant, that Donna Rayhons "was no longer capable of consenting to sex." She is reported as testifying she did not remember Rayhons' exact response, but that "he indicated it wouldn't be a problem."
- Testimony of a doctor who met with Donna Rayhons in March 2014. He reportedly testified she was unable to answer "basic questions, including the names of her daughters." According to one news report, he testified that "it wouldn't be likely that a 78-year-old suffering from dementia would be able to consent to sex."
- Testimony of a social worker from the care center where Donna Rayhons was a resident. According to news reports, the social worker testified about a staff meeting with the family in May, saying that she "wrote up a one-page list of suggestions, including limits on outside activities, and had Donna Rayhon's doctor go over it beforehand." At the bottom of the document, the social worker reportedly wrote: "Given Donna's cognitive state, do you feel she was able to give consent to any sexual activity?" And according to the news reports, it was the doctor who wrote, "No." She is reported as testifying that she'd "never written such a statement for a family in 18 years on the job," but that she also said she never had a spouse seem to want to continue having sexual contact with a resident who was severely cognitively impaired." According to the Des Moines Register, on cross examination, the social worker said that no one at the meeting explained to Henry Rayhons what sexual activity meant, and that "she never saw any evidence that Rayhons harmed his wife, or that she was afraid of him or angry with him." She was reported as saying his wife was "always pleased to see Henry," and were very affectionate.
The testimony on Day 3 appears to raise interesting questions about the admissibility and effect of opinion testimony regarding the mental capacity of the alleged victim, potentially bringing into play prior Iowa case law.
Thursday, April 9, 2015
During the second day of State of Iowa v. Henry Rayhons, the court seated a jury of 6 men and 8 women. According to early news reports, during voir dire both the prosecution and the defense gave hints of their theories of the case, where the 79-year-old former state legislator is accused of sexual abuse on his wife, who had Alzheimer's. The Des Moines Register reported:
Several potential jurors indicated they'd read or seen some of the extensive news coverage of the unusual case. [Prosecutor] Krisko told them that if they are picked to hear the case, they will be expected to set aside concerns about how their decision would be viewed or what punishment it might bring to the defendant. "We're not here about making public policy. We're here about one incident — one man, one woman," she said.
On Thursday afternoon, defense lawyer Joel Yunek talked extensively to potential jurors about the issues of dementia and sex among the elderly. Yunek noted that his mother has Alzheimer's disease, and he asked how many of the potential jurors had someone in their families with the disease or other types of dementia. Many raised their hands. The defense lawyer expressed sympathy as he led them through discussion of the effects.
When one man recounted how a relative with dementia has good and bad periods, Yunek said: "It's a baffling disease, isn't it?" "Yes, sir," the man replied.
Later on the same day, the two attorneys gave their opening statements, as reported here.
The trial is expected to last about a week.
Wednesday, April 8, 2015
Day one of the sexual abuse trial of State of Iowa v. Henry Rayhons was Wednesday, April 8. News report of the first day here. Coverage of pretrial motions here, with the husband's lawyer describing potential expert testimony about how individuals with Alzheimer's could be capable of consent, while the prosecution argues consent is impossible as a matter of law, making an analogy to sexual contact with a minor or an individual who was unconscious or passed out. More background here.
Today, April 8, is the scheduled day for jury selection to begin for the trial of State of Iowa v. Henry Rayhons. We've written about the charges here and here, but to summarize, Mr. Rayhons, now age 79, was charged last year with "sexual abuse" of his wife, Donna Rayhons (78 at the time), who was residing in a nursing home with Alzheimer's. Iowa law has several different ways in which a "sexual act without consent" between a "husband and wife" can constitute "sexual abuse in the third degree." See Iowa Code Section 709.4(2).
Here, because the husband and wife were not "cohabitating," a conviction would appear to depend on the state's ability to prove that the sex act was with a person suffering from a "mental defect or incapacity which precludes giving consent." It appears the state takes the position that "consent" was impossible because Mrs. Rayhons had been diagnosed with a mental defect, the advanced stages of Alzheimer's. Further, it appears the state expects to prove that her husband was aware of the diagnosis, and further, that at some point before the evening in question, he "agreed" she was incapable of giving consent because of her condition. But at the core, isn't there still an essential question about whether, assuming the state can prove those statutory elements, the law is intended to prevent a married couple from having "consensual" relations because one partner has Alzheimer's?
There apparently was no evidence of physical or emotional damage to Mrs. Rayhons, including no evidence of cries for help or protestations on her part. It appears there will be testimony about the close and loving relationship the couple had before the night in question. It will be interesting -- and sad -- to hear whether there is evidence of a "sexual act."
The Washington Post's Sarah Kaplan has drawn together a history on the case to this point, including details first reported by Bryan Gruley for Bloomberg News. At one point the prosecution tried to get a change of venue for the trial -- a very unusual request from a prosecutor -- which the trial court denied.
I've been hearing from a lot of folks lately about this case, including several medical professionals. I think that after the charges were first announced in August 2014, many people expected the case to quietly disappear, especially as Mrs. Rayhons has passed away, and her husband, then a state legislator, had retired from office.
Yesterday, I had the interesting experience of being interviewed for a KABC radio show in Los Angeles by "Dr. Drew." It was pretty clear that with his background, board certified in internal medicine and a clinical professor of psychiatry at USC, Dr. Drew Pinsky was troubled by the possibility that a medical diagnosis could, without more, be treated as prohibiting legally effective consent to sexual relations. (A guardian was appointed for Mrs. Rayhons, but those proceedings were begun after the night in question.) As Dr. Drew commented during the radio show, even in advanced dementia, there may be core functions that a person continues to be able to enjoy and therefore seek, including eating, drinking and ... intimacy.
April 8, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, April 2, 2015
Here is a recent ruling (February 2015), based on a fact pattern that many elder law attorneys will appreciate as both familiar and challenging.
In Runge v. Disciplinary Board, the Supreme Court of North Dakota reversed a disciplinary board "admonishment" of an attorney for "violating" the Rules of Professional Conduct, Rule 1.14. North Dakota's Rule 1.14, addressing representation of a "client with limited capacity," is similar to the ABA Model Rule 1.14 on clients with "diminished capacity."
At issue in the disciplinary proceeding was the lawyer's representation of a 79-year-old man who was residing in a "Care Center." The man wished to leave the nursing home, against "medical advice" and, apparently also in opposition to his daughter's apparent belief about what was best for him. The man had, before experiencing a heart attack, named his daughter as an agent under a durable POA.
By the time the attorney met with the man, the man had been living in the care center for several months. After meeting with the older man (and a female friend of the man), at the man's request the attorney prepared a revocation of the POA. The lawyer explained to the care center that absent someone holding a guardianship or custodianship for the man, and as long as the lawyer was persuaded his client had sufficient capacity, the revocation of the POA was effective and neither the center nor the daughter had grounds to prevent him from leaving.
Unhappy with this outcome, the daughter filed a Disciplinary Board complaint against the attorney, asserting the lawyer had acted improperly by failing to consult with her as her father's named agent, and taking the position her father's "incapacity" for purposes of an earlier "emergency care" statement was conclusive of his incapacity. The Court, however, observed:
"Here no guardianship or conservatorship existed that withdrew Franz's authority to act for himself. Rather, Franz shared his authority to act and he remained free to withdraw the authority conferred under that power of attorney, which, in any event, precluded anyone from making his medical decisions. This record reflects [Lawyer]Runge talked with Franz by telephone and in person to ascertain his wishes before Franz revoked the power of attorney. Runge's recitation of his conversations with Franz does not clearly and convincingly establish Franz was incapacitated in April 2013. This record does not reflect any subsequent attempt to obtain a court-ordered guardianship or conservatorship for Franz, which belies any suggestion that he was incapacitated in April 2013."
Therefore, the North Dakota Supreme Court dismissed the daughter's Disciplinary Board complaint.
Significantly, the Court observes that although the lawyer "could" have contacted the daughter before executing the revocation of the POA, the provisions of Rule 1.14 did not "require" him to do so.
Lots of potential lessons here. A key to the outcome seems to be the lawyer's persuasive testimony, showing the care he took in making the decision to represent the man and to prepare the revocation. As the court observed, "[The lawyer's] assessment of [the man's] capacity was within the range of a lawyer's exercise of professional judgment." This case is another demonstration that lawyers hold a lot of power -- and responsibility -- in matters involving client capacity.
Many thanks to Professor Laurel Terry at Dickinson Law for sending this decision our way.
April 2, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (2) | TrackBack (0)
Monday, March 30, 2015
While driving home from the grocery recently, I happened to catch "Press Play," a TED Radio Hour broadcast on the importance of play. It was such an interesting program that I ended up taking my groceries for another couple of spins around the block so that I wouldn't miss a segment!
One interview was with researcher Dr. Stuart Brown, who described his early work with (and about) criminals, including at least one mass murderer. While no single factor accounted for behavior, he noticed that in some of the worst histories, there was a distinct lack of opportunities for childhood imagination and healthy play. He brought this forward into research with the general population, with observations about the role of play throughout life, even for persons with deep dementia. He and other researchers on the program were convincing, to wit, that play, involving pure fun and engagement with others, stimulates the brain in important ways.
Tuesday, March 24, 2015
The Alzheimer's Association's 2015 Facts & Figures Report that many doctors fail to tell patients (or their family members) about a diagnosis of Alzheimer's is getting a lot of attention, including this Morning Edition story.
Why aren't doctors revealing their diagnoses? During my work in Northern Ireland on access to justice for older adults, we realized that the doctor's diagnosis is a key opportunity for families to receive early advice about "non-medical" planning, such as arranging for powers of attorney or other arrangements for financial management, while the patient has adequate cognition to help with decision-making. If communication of the diagnosis is delayed, the window for effective participation in planning may also be lost.
Monday, March 23, 2015
"Alzheimer's disease has been described as 'the great unlearning.' But what does it reveal about the nature of human identity? What remains when memory unravels? Alan Dienstag is a psychologist who has led support groups with early Alzheimer's patients, as well as a writing group he co-designed with the novelist Don DeLillo. He's experienced the early stages of Alzheimer's as a time for giving memories away rather than losing them."
The website offers poems and essays from the writing group.
Sunday, March 15, 2015
Attorney and author Steve Dale has published a new book, Achieving Independence- A Guide to Creating an Estate Plan Which Ensures Quality of Life for You and Your Loved One with a Disability. According to the author
The primary purpose of this guide is to assist families in the planning process of creating a special needs trust for a loved one with a disability. Stephen shares with the reader his experience as an attorney that has focused primarily on estate planning for persons with disabilities and their families for the past 25 years. He also illustrates some of the challenges that persons with disabilities and their families face by sharing his experiences growing up in California’s State Hospital System as a child of three generations of institutional workers and later as a Psychiatric Technician giving direct care in a variety of psychiatric hospitals for 17 years.
Stephen and his office developed the Achieving Independence System to educate clients on key issues and decisions commonly encountered in creating a special needs trust so clients can be better prepared before meeting with their attorneys and advisors to create a team that best serves their needs. After the plan is created, an effective plan will assist the trust management team to focus on what is really important; to assist a person with a disability to live as independently as possible and to experience a quality of life that many persons who are not disabled take for granted. In essence to achieve the highest level of independence possible free from abuse and neglect.
The book runs 133 pages and is available from Amazon as a paperback for $20.00. Steve's Independence project is explained on his website, Achieving Independence. Full disclosure, Steve is a friend and a regular speaker at Stetson's annual Special Needs Conference.