Tuesday, June 30, 2015
On June 23, 2015, Martha Brosius, a "retired" attorney who once held herself out as an "elder law attorney," pled guilty in New York to stealing $797,322 from clients. In one alleged instance of breach of fiduciary duties and embezzlement, she was the court-appointed guardian for a 77-year-old disabled man. It was alleged she used client funds to pay office, payroll and personal expenses.
The mother of two minor-aged children and the wife of a district attorney, Brosius is scheduled to be sentenced in August. According to The Long Island Press, the special prosecutor has sought a sentence of between six to eighteen years plus restitution; the defense counsel says some moneys have already been repaid.
Friday, June 26, 2015
On June 24, 2015, a Florida intermediate appellate court reversed the 2013 conviction of Tyrone Javallena for "financial exploitation of an elderly person or disabled adult," ruling that there was no evidence the defendant in question, who was the husband of a financial advisor for a 94-year-old woman who made late-in-life changes to her estate plan benefitting the couple, had the requisite knowledge of any plan to exploit. In Javallena v. State, the 4th DCA ruled:
The [elderly woman's estate] documents were amended so that, ultimately, the defendant and his wife were residual beneficiaries of the estate. The defendant and his wife served as witnesses to Teris' execution of some of the amendments, and at some point in time, his wife became aware of the substance of the amendments. However, there was no evidence that the defendant, who also chauffeured Teris on errands, had any knowledge of a plan to exploit the victim. As for Teris' mental capacity at the time she executed the amendments to her estate documents, there was conflicting evidence before the jury.
On appeal, the defendant argues that his conviction under a principals theory constituted error as there was no evidence he participated in the exploitation. We agree.
"To convict under a principals theory, the State is required to prove that the defendant had a conscious intent that the criminal act be done and . . . the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime."Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (citation and internal quotation marks omitted).
The original conviction of Javallena and his wife in 2013 was high profile news, in part because of the estate in question -- referred to in the appellate opinion as "vast" -- was reported to be $10 million. No word on the status of any appeal on the separate conviction of Javallena's wife.
June 26, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Saturday, June 13, 2015
The New York Times' "On this Day" squib reminded us today:
"On June 13, 1966, the Supreme Court issued its landmark Miranda vs. Arizona decision, ruling that criminal suspects must be informed of their constitutional rights prior to questioning by police."
That triggered memories, as the day the landmark decision first became known in Arizona, the father of one of my friends offered everyone in the neighborhood a glass of champagne, even us kids. At the time I did not fully appreciate the reason. It was only years later that I put it together that the celebrant was John P. Flynn, the lawyer who successfully argued the Miranda case before the U.S. Supreme Court.
Even more years later, in the 2000 Supreme Court decision of Dickerson v. U.S., another man from that same Phoenix, Arizona neighborhood would confirm the importance of "Miranda warnings" as an accepted mainstay of protection for individuals suspected of crimes. Chief Justice William H. Rehnquist did not share the legal or political philosophies that generated the original ruling, but he could be persuaded to respect the role of stare decisis. I have often been bemused by the fact that John Flynn, a bold advocate and life-long Democrat, had once celebrated his biggest victory with the children of the neighborhood, including the children of a future Supreme Court Justice, well known for his conservatism. Phoenix, especially the legal community, was a very small town in those days.
My trip down memory lane took me to a colorful account of John P. Flynn's life. It is the story of a creative and talented lawyer, from an era much more tolerant of personal flaws. Read "Remembering John Flynn" by his one-time law partner Tom Galbraith.
Wednesday, June 3, 2015
On March 17, 2015, Missouri executed "convicted cop killer Cecil Clayton." Clayton's prosecution was a matter of much legal commentary from the very outset of his arrest and prosecution in the 1990s, because of the documented history of removal of 1/5 of the frontal lobe of his brain following a sawmill accident in the 1970s.
However, as his prosecution, appeals, and post-conviction challenges wended their way through state and federal courts on issues of effective assistance of counsel, insanity and mental defect, an additional cognitive impairment was underway. By the time of his execution Clayton was reported to be Missouri's "oldest death row prisoner" at age 74 and at least five years before his last day, he had been diagnosed with progressive, neurological deterioration, consistent with "dementia."
The last court to consider the Clayton's last (and last minute) challenges to the death penalty, the United States District Court for the Western District of Missouri, wrote on the same day as his execution:
Should the Atkins [v. Virginia, 536 U.S. 304 (2002)] reasoning be applied, by analogy, to cases involving persons with physical brain damage and progressive deterioration, and an Atkins-like evaluation performed to determine whether the death penalty may be properly imposed? It seems fair to analogize the diminished capacity of the mentally retarded that lessens personal culpability and prohibits execution of the mentally retarded...to those whose physical brain damage and progressive deterioration have, for example, lessened their capacity to meaningfully participate in legal proceedings. Using a different analogy, it would be difficult to imagine, for example, that a civilized society would execute a person who was not mentally retarded at the time of the commission of a capital crime, but who subsequently developed advanced Alzheimer's disease by the time of the execution.
Ultimately, the court ruled that no relief was available to Clayton on the record before it, but the court clearly was concerned about the potential for evidence of post-conviction dementia to establish independent grounds for a valid 8th Amendment challenge. The court concluded:
Again, at this very late date, the question of whether the death penalty can be imposed against a person such as Clayton with physical brain damage—a hole in his frontal lobe—associated with progressive deterioration over time, has not been litigated here, and it may be too late. In the time available, the Court cannot conclude under the deferential AEDPA standard that the Missouri Supreme Court's decision should be disturbed.
For more on the litigation history of Clayton's mental impairment(s), see Clayton v. Al Luebbers, 2015 WL 1208786 (W.D. Mo., May 17, 2015).
Saturday, May 30, 2015
The Washington Post recently profiled Alzheimer's activist Michael Ellenbogen, including the possibility that the very disease he's urging public authorities to confront by committing to find a cure, has impaired his ability to use sound judgment about his tactics:
When Michael Ellenbogen calls for a more aggressive fight against Alzheimer’s disease, he speaks with passion that comes from experience. As someone who was diagnosed with early-onset dementia, Ellenbogen can convey firsthand the pain and frustration at what he sees as insufficient government support for research to find a cure or better treatments.
But to some, Ellenbogen’s passion recently went too far.
After he submitted remarks to the national Advisory Council on Alzheimer’s Research, Care and Services that mentioned the Columbine massacre — asking whether it would require a mass shooting by someone with dementia to draw more attention to the crisis — the Department of Health and Human Services deemed Ellenbogen a security threat. The federal agency, which hosts the council’s meetings, banned him from its premises.
For the full story, see Frederick Kunkle's article More People with Alzhemier's Are Becoming Activists -- Which Brings Its Own Challenges.
Tuesday, May 12, 2015
We've written on this blog several times about successful prosecutions connected to so-called "off label" drug use, including the use of antipsychotics for agitation in dementia patients. See here and here, for example. Now, courtesy of a New York Times article, there is news of a pharmaceutical company's lawsuit to preempt such prosecutions, raising First Amendment free speech rights as grounds for off-label advocacy:
On Thursday, Amarin Pharma took the unusual step of suing the Food and Drug Administration, arguing that it has a constitutional right to share certain information about its product with doctors, even though the agency did not permit the company to do so. Lawyers for the company said that they believed their case was the first time a manufacturer had pre-emptively sued the agency over the free-speech issue, before it had been accused of any wrongdoing. Other companies have sued the agency only after they have gotten into trouble....
Lawyers for Amarin say the company is not proposing to market Vascepa to a wider population of patients, merely to share with doctors the results of a 2011 company-sponsored clinical trial that showed the drug lowered triglycerides in patients with “persistently high” levels....
More details about the suit available here.
Monday, May 11, 2015
I'm catching up on news items after being away for a few days. There are additional insights about the sad trial of Henry Rayhons in Iowa, that ultimately resulted in his acquittal, from one of the jurors, who also happened to be a reporter. Too often it is easy to focus about what is wrong with the court system, but here is a reminder of just how seriously most jurors take their duties.
Read, "The Rayhons Trial: A Juror's Perspective," by Angela Nelson. And my thanks to Bryan Gruley who made sure we did not miss this powerful coda to the trial.
May 11, 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)
Friday, May 1, 2015
Criminal Record? Is Life-Time Ban from Care Industry Employment Necessary to Protect Older, Vulnerable Persons?
In 2003, in Nixon v. Commonwealth, Pennsylvania's Supreme Court struck down a provision of the state's Older Adult Protective Services Act that imposed an absolute bar on designated care "facilities," including nursing homes, personal care homes, and home health agencies, prohibiting them from hiring "new" employees who had been convicted of certain crimes. The Court concluded that the prohibition, which affected only "new" employees, or those working at a covered facility for less than one year, did not bear a real and substantial relationship to the Commonwealth's interest in protecting the elderly, disabled, and infirm from victimization, and therefore unconstitutionally infringe[d] on the Employees' right to pursue an occupation."
Twelve years later, the Pennsylvania legislature, despite consideration of many proposals to "fix" the "Nixon case problem," still had not amended the statute. (This is the second time in a week that Pennsylvania's speed -- or lack thereof -- in enacting important reforms has attracted media attention.) As explained by NPR in a feature story by Carrie Johnson, a new lawsuit again challenges Pennsylvania's employment ban:
In 1981, when he was just 18, [Tyrone] Peake was arrested with a friend for trying to steal a car to take a girl home after a long weekend. "No, we never got the car," Peake said. "We broke the ignition column and then the cops came."
Peake couldn't even drive back then. He says he was just along for the ride. He never went to prison. Instead, he got probation. But that single charge years ago still haunts him, sometimes even after he's gotten work....
"I've been fired from three jobs," Peake said, "because [of] having a criminal record. And my record is like 32 years old, and I haven't been in trouble since then." A lot's happened since the 1980s for Peake. He went back to school, and he's been working part time as a counselor for men addicted to drugs and alcohol. But the law prevents him from being hired full time to work in a nursing home or long-term-care facility because of that single criminal conviction.
Peake's history of attempting to get on the right side of the law presents a dramatic contrast between the law's laudable purpose of protection of vulnerable adults and its sometimes harsh effect. For more, see NPR's Can't Get A Job Because Of A Criminal Record? A Lawsuit Is Trying To Change That.
May 1, 2015 in Crimes, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Tuesday, April 28, 2015
U.S. Department of Justice and Fraud Schemes Targeting Older Americans
- Wed, May 27, 2015 1:00 PM - 2:30 PM CDT
Rich Goldberg (Assistant Director, U.S. Department of Justice, Consumer Protection Branch); Kate Drenning (Trial Attorney, U.S. Department of Justice, Consumer Protection Branch); Ann Entwistle (Trial Attorney, U.S. Department of Justice, Consumer Protection Branch)
Additional sponsorship for this Webinar is provided by a grant from the Administration on Aging/Administration for Community Living. This webinar is part of a series of National Elder Rights Training Project webinars for the National Legal Resource Center.
There is no charge for this webinar.
All time listings are in Eastern Time.
If you have any questions email email@example.com
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)
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)
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.
ElderLawGuy Jeff Marshall alerted us to this week's ruling by the Third Circuit Court of Appeals, affirming the conviction of Eugene Goldman, M.D. for several counts of taking "kickbacks" for referral of Medicare and Medicaid patients for hospice services. Dr. Goldman's sentence of 51 months, followed by three years of supervised release during which he is barred from practicing medicine, was affirmed. The facts, as set forth in the opinion, are interesting:
"Goldman had a geriatric medicine practice in Northeast Philadelphia. In December 2000, he secured the position of Medical Director of Home Care Hospice ('HCH'). Alex Pugman served as Director of HCH, and his wife, Svetlana Ganetsky, was the Development Executive, responsible for marketing HCH to doctors and other healthcare professionals. According to his contract, Goldman was responsible for quality assurance, consultations, and the occasional meeting. In reality, his job was to refer patients to HCH.
Goldman was paid for the number of patients he referred to HCH and the length of their stay. Early in his relationship with HCH, Goldman was paid $200 per referral. By 2011, he received $400 per referral, with an additional $150 for each patient who stayed longer than a month. Ganetsky paid Goldman each month by check. Between 2002 and 2012, Goldman referred more than 400 Medicare patients to HCH and received approximately $310,000 in return.
In 2006 the FBI and Department of Health & Human Services began investigating HCH for Medicare fraud. The FBI followed up in 2008 by obtaining a search warrant and seizing over 500 boxes of documents and information from HCH’s servers. Shortly after the raid, Ganetsky and Pugman approached the FBI and agreed to cooperate in the investigation. Ganetsky then recorded several meetings at which she paid Goldman for his referrals. Ganetsky made these payments with funds drawn from an account opened by the FBI for the investigation."