cause of the break or the bruise is the starting point for any legal action. Thus, even where there are clear bad outcomes (harm to an older person), absent a causal link and evidence to support a hypothesis of illegal abuse or neglect, the law will provide no remedy or accountability.
The most extreme cases of abuse and neglect are not diagnostic dilemmas. In some cases—gunshot wounds, knife wounds, or rope burns, for instance—it is clear that the older person has been abused. In other cases multiple large decubiti or starvation may indicate severe neglect. Bite marks, too, are established evidence of abuse (Rawson et al., 1984; American Board of Forensic Odontology, 1986). But most cases fall into a gray area where abuse and neglect are not so nearly clear-cut, often because of subtle physiologic and psychological changes that occur in old age.
No gold standard test for abuse or neglect exists, and those working with abused or neglected elderly victims rely on forensic markers. The difficulty with this approach is that there is often a great overlap among the markers of disease and neglect (and sometimes abuse). Although abuse often is considered to require an overt act, whereas neglect is considered to require an omission, it sometimes is difficult to distinguish between the two. There are cases in which neglect is so profound and widespread, and the caretaker is knowledgeable of what was needed but not provided, that many would consider it abuse. For example, if a case includes apparently preventable decubiti, neglect may be indicated. The line between abuse and neglect becomes murkier, however, when a person presents with multiple serious decubiti, and the caregiver was aware of the decubiti and of what care was needed but still failed to render adequate care. The ambiguity between abuse and neglect is similarly demonstrated in scenarios where caregivers, particularly those who know better, either withhold necessary medication or fail to perform needed care (for example, fail to change a bandage and cause the loss of part of a limb and/or sepsis, or cause illness and death by not giving needed insulin).
The absence of clear and consistent legal definitions of neglect limit our ability to address the phenomenon. Liability for neglect is dependent on the ability to assign blame, and blame is easier to assign with acts of commission than acts of omission (Phillips, 1988). Definitional (and legal) distinctions also are necessary in determining when self-neglect evolves into caregiver neglect. This is a combined medical-legal inquiry: Is the person physically or mentally incapacitated? At what point does the legal responsibility for the care of that person shift from self to another? What are the legal responsibilities of a caregiver under law such that failure to render such care in a home or community setting subjects the caregiver to civil or criminal liability? What types of documentation must exist to justify a failure by caregivers to intervene in the face of self-neglect (e.g., refusal to eat) in an institutional setting? The answers to these questions, to the