Lost in the Tule Fog of Elder and Dependent Adult Abuse Reporting

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1 Lost in the Tule Fog of Elder and Dependent Adult Abuse Reporting David G. Jensen, JD Staff Attorney March/April 2013 It remains one of the more bewildering experiences of my life. While driving through California s glorious Central Valley, I encountered the infamous Tule fog, and the physical world I had perceived just disappeared. Seeing the road was difficult. Determining when to turn left and when to turn right was difficult. I felt lost and vulnerable. I hoped that others on the road, if there be any, were being as cautious as I was while attempting to navigate the dreaded Tule fog. It felt like me and my mid-sized rental car, with its low beams and flashing emergency lights, against an uncaring and forbidding world. In light of some drastic changes to the elder and dependent (E/DA) abuse laws, which went into effect January 1, 2013, especially in the areas of where and when to report physical abuse that results in serious bodily injury, many of you will likely feel that you yourself are having your own Tule fog experience. The E/DA abuse reporting laws have gotten foggier, no doubt. But, knowledge of these laws, some common sense, and some caution will help dissipate that fog and enable you to fulfill your E/DA abuse reporting responsibilities. ARE MFT TRAINEES, INTERNS, AND LICENSEES MANDATED REPORTERS OF E/DA ABUSE? Yes. Trainees, interns, and licensees are health practitioners (California Welfare & Institutions Code ), and health practitioners are mandated reporters of E/DA abuse when they are working within their professional capacities or the scope of their employment [California Welfare & Institutions Code 15630(a)]. This means, however, that a licensee, intern, or trainee is not a mandated reporter when he or she is not wearing his or her professional or employment hat. When not wearing the requisite hat, a licensee, intern, or trainee, just like any other citizen, may report E/DA abuse, but he or she is not mandated by law to do so. This issue of what hat you are wearing at the time is more subtle than you may suspect. It is very important to be cognizant of the role you are playing when interacting with third parties, especially when interacting with them outside of the office. Has someone turned to you for advice because you are a therapist? Or, has someone turned to you for advice because you are a friend or a neighbor? You should clarify with third parties the particular hat you are wearing when interacting with them. WHO IS AN ELDER? WHO IS A DEPENDENT ADULT? An elder is any person residing in California who is 65 years of age or older (California Welfare & Institutions Code ). Residing in California means that the person intends to make California his or her home. Vacationing or conducting business in California does not make one a resident of California for reporting purposes. A dependent adult is a person between the ages of 18 and 64 who resides in California and who has physical or mental limitations that restrict his or her ability to carry out normal activities or protect his or her rights, or a person between the ages of 18 and 64 who is admitted into a twenty-four hour health facility (California Welfare & Institutions Code ). The Therapist - March/April 2013 Page 1

2 Restrictions on one s abilities to carry out normal activities would include cooking, bathing, toileting, or operating an automobile or telephone. The restriction on normal life activities can be the result of physical or developmental disabilities, or simply because the person s physical or mental abilities have diminished because of age. Notice, however, that the person does not have to be completely disabled to be a dependent adult; a restriction on one s ability to carry out normal life activities or protect one s rights is enough for reporting purposes. REPORTING = KNOWLEDGE OR REASONABLE SUSPICION The duty to report E/DA abuse is triggered when you acquire knowledge, which usually means either the perpetrator or the victim has confessed to you that E/DA abuse has occurred, or when you gather factual information that causes you to reasonably suspect that E/DA abuse has occurred (California Welfare & Institutions Code ). The concept of reasonable suspicion does not mean you must be certain about whether E/DA abuse has occurred. Oftentimes you will not be. You are merely wondering if it has occurred, and if that wondering is based on facts that cause you to reasonably suspect that E/DA abuse has occurred, especially in light of your education, training, experience, the duty to report has been triggered (California Welfare & Institutions Code ). When it comes to reporting E/DA abuse, do not think in terms of whether it is right or wrong to report; just concern yourself with whether it is reasonable to report based upon the factual information you have, and what that factual information means to you in light of your education, training, and experience. Does it sound like someone is safe? Does it sound like someone has been taken advantage of? Does it sound like someone is being neglected or injured? If you suspect, first report the incident, and then let the government figure out what it means, if anything. The government may find that E/DA abuse did not occur, or that there was not enough evidence to make a determination about whether it occurred, but neither outcome would affect your underlying suspicion that it occurred. The bottom line is this: If you suspect, report! TYPES OF ELDER OR DEPENDENT ADULT ABUSE There are six types of E/DA abuse that mandate the filing of an E/DA abuse report (California Welfare & Institutions Code ). Before examining these six types of abuse, it is important to consider some warning signs of potential abuse. According to the California Department of Justice, in E/DA abuse situations, there may be physical or behavioral signs or indicators that may evidence abuse has occurred. In terms of physical signs of abuse, a health practitioner would look for things like uncombed or matted hair; poor skin condition or hygiene; unkempt or dirty; patches of hair missing or bleeding scalp; any untreated medical condition; malnourished or dehydrated; foul smelling; torn or bloody clothing; scratches, blisters, lacerations, or pinch marks; unexplained bruises or welts; burns; injuries that are incompatible with the explanations; and any injuries that reflect an outline of an object, such as a belt, cord, or hand. In terms of behavioral signs of abuse, the E/DA may be withdrawn, confused, extremely forgetful, depressed, helpless, angry, hesitant to talk freely, frightened, or secretive. The Therapist - March/April 2013 Page 2

3 Type 1: PHYSICAL ABUSE There are six types of physical abuse: assault; battery; assault with a deadly weapon; unreasonable physical constraint, or prolonged or continued deprivation of food or water; sexual assault; and, the use of chemical or physical restraints or psychotropic medications for improper purposes (California Welfare & Institutions Code ). Assault An assault occurs when an E/DA reasonably believes that he or she is about to be touched in a harmful or offensive manner (California Penal Code 240). Words alone are insufficient to constitute an assault [Tomlinson v. Nobil (1951) 103 Cal. App. 2d 266]. However, when words are combined with actions, such as the raising of a fist or the brandishing of a knife or firearm, an assault is likely to have occurred. Remember, for reporting purposes, you just have to reasonably suspect that an assault has occurred (California Penal Code 240). Battery A battery occurs when there has been a harmful or offensive touching of an E/DA, with offensive meaning a touching that would offend a reasonable person s sense of dignity (California Penal Code 242). Certainly, a punch in the nose would be a harmful or offensive touching, but the law does not require that the physical contact be that severe. A slight touching can be enough if the touching would offend a reasonable person s sense of dignity [Santa Clara County v. Willis (1986) 179 Cal.App.3d 1240]. A shove, for instance, could constitute a battery, just as a pat on the buttocks could constitute a battery. Assault with a Deadly Weapon An assault with a deadly weapon occurs when an assault is committed against an E/DA and such assault involves some type of deadly weapon, which means an object, instrument, or weapon that can be used in such a manner as to be capable of producing death or great bodily injury [People v. Aguilar (1997) 16 Cal.4 th 1023]. All sorts of things can be deadly weapons. For instance, firearms, knifes, automobiles, animals, razor blades, and beer bottles all constitute potential deadly weapons. However, hands and feet are not considered deadly weapons because they are not extrinsic to the human body. Of course, should an elder or a dependent adult be struck by the hand of another, it would be reportable as a battery but not as an assault with a deadly weapon. Physical Restraints/Deprivations of Food or Water Restraining an E/DA physically, or depriving an E/DA of food or water may also be a type of physical abuse. There are at least two situations where restraining someone physically may be lawful. The first is restraining someone so that the person cannot hurt oneself, or others. Such conduct would be lawful if it was reasonable under the circumstances, meaning of a temporary nature, and just to prevent the E/DA from harming oneself, or others. The second situation is when hospitals, skilled nursing facilities, and other care facilities use physical restraints to prevent patients from harming themselves or others. Physical restraints should only be used pursuant to a physician s orders, on a temporary basis, to prevent an elder or dependent adult from harming himself, herself, or others. If a physical restraint is being used to restrain an E/DA for any other purpose, such as for punishment or the convenience of staff, the incident should be reported as suspected E/DA abuse. The Therapist - March/April 2013 Page 3

4 When it comes to deprivations of food and water, use your good judgment and let common sense be your guide. Given what is being described to you, does it sound like an E/DA is receiving adequate food and water? If not, you have your reasonable suspicion. Sexual Assault Although sexual assault constitutes a type of physical abuse, there are nine different types of sexual assault: sexual battery, rape, rape in concert, spousal rape, incest, sodomy, oral copulation, sexual penetration, and lewd or lascivious acts. The first type of sexual assault is sexual battery, which means the touching of an E/DA s intimate parts of the body for the purpose of sexual arousal or sexual gratification and without the E/DA s consent (California Penal Code 243.4). The concept of touching includes any physical contact with an E/DA, even if clothing covers the intimate part of the body being touched. Hence, the touching does not have to be skin to skin to constitute sexual assault. By an intimate part, the law means the sexual organ, anus, groin, or buttocks of a person, and the breast of a female. The second type of sexual assault is rape, which means an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator where the victim s will has been overcome because the victim could not consent because of a mental disorder, or a developmental or physical disability; through force, duress, or threats of violence, etc.; through the use of intoxicating substances; or, because the victim was unconscious of the nature of the act (California Penal Code 261). The third type of sexual assault is rape in concert, which means an act of rape that is committed by more than one individual against a victim (California Penal Code 264.1). The fourth type of sexual assault is spousal rape, which means an act of sexual intercourse that is committed against one s spouse without that spouse s consent (California Penal Code 262). The spouse/victim s consent can be overcome by force, duress, threats of violence, etc.; by giving the spouse/victim intoxicating or anesthetic substances; or, where the spouse/victim is unconscious of the nature of the act. The fifth type of sexual assault is incest, which means a sexual relationship between a parent and a child; ancestors or descendants of every degree; brothers and sisters (of the half or whole blood); or uncles and nieces or aunts and nephews (California Penal Code 2200). The sixth type of sexual assault is sodomy, which means an act of sexual contact in which the penis of one person contacts the anus of another person (California Penal Code 286). The seventh type of sexual assault is oral copulation, which means the act of copulating the mouth of one person with the sexual organ or anus of another person (California Penal Code 288a). The eighth type of sexual assault is sexual penetration, which means the penetration of a genital or anal opening, against a person s will, for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device (California Penal Code 289). The ninth type of sexual assault is lewd and lascivious acts, which, within the context of the Act, means that a caretaker has used force, duress, violence, or intimidation to get an E/DA to perform sexual acts for the caretaker s own sexual gratification (California Penal Code 288). January 1, 2013 and the Importance of the Concept of Serious Bodily Harm The Therapist - March/April 2013 Page 4

5 Because of changes to the E/DA reporting laws that went into effect in January 2013, when it comes to the issue of physical abuse, it is not enough, anymore, just to think about these nine types of physical abuse. There is now a much more nuanced issue that has to be considered. The question you must also think about now is whether the physical abuse resulted in serious bodily injury to an E/DA, which means an injury involving extreme physical pain, substantial risk of death, or protracted loss or impairment of function of a bodily member, organ, or of mental faculty, or requiring medical intervention, including hospitalization, surgery, or physical rehabilitation (California Welfare & Institutions Code ). If the physical abuse resulted in serious bodily injury, the time frames for reporting and the destinations of reports could change dramatically, depending on whether such injury occurred in a long-term care facility. We shall see that there are now six different scenarios for reporting E/DA abuse, and the issue of serious bodily injury is smack dab in the middle of a few of them. Type 2: ABANDONMENT Abandonment means deserting or willfully forsaking an elder or dependent adult under circumstances in which a reasonable person would continue to provide care and custody (California Welfare & Institutions Code ). Type 3: ABDUCTION Abduction means taking an elder or a dependent adult out of California or preventing them from returning to California without their consent (California Welfare & Institutions Code ). Type 4: ISOLATION Isolation means preventing an elder or a dependent adult from receiving their mail; receiving their phone calls; meeting with their visitors; preventing an elder or dependent adult from leaving; or telling a visitor that the elder or dependent adult is not present or does not want to interact with the visitor when such information is false (California Welfare & Institutions Code ). Type 5: FINANCIAL Financial abuse occurs when a person or entity takes, secretes, appropriates, or retains real or personal property for a wrongful use or with intent to defraud (California Welfare & Institutions Code ). It can be as simple as taking money out of an elderly person s pocket, or as complex as tricking an elder into signing over the Trust Deed to the elder s home as part of an estate planning service. This type of abuse can be particularly devastating because an elder s life savings can be wiped out in a matter of minutes. The California Department of Justice specifically cautions elders about telemarketing fraud; identity theft; home improvement scams; predatory lending schemes; and estate planning schemes. Any facts evidencing a conflict of interest between the E/DA and such professionals should be reported as abuse so that the government can investigate the situation to determine whether abuse has occurred. Type 6: NEGLECT Neglect occurs when someone who is caring for an E/DA fails to assist in personal hygiene or in the provision of food, clothing, or shelter; fails to provide necessary physical or mental health care; fails to protect from health or safety hazards; or, fails to prevent malnutrition or dehydration. Neglect is also present if an E/DA cannot take care of themselves because of poor cognitive functioning, mental limitations, substance abuse, or chronic poor health. The Therapist - March/April 2013 Page 5

6 WHAT ABOUT MENTAL SUFFERING? Mental suffering is a special type of E/DA abuse. By mental suffering, the Act means such things as fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the E/DA (California Welfare & Institutions Code ). The reporting of mental suffering experienced by an E/DA is not mandated, meaning not required, by the Act. It is permitted to be reported. AN EXCEPTION FOR REPORTING ELDER OR DEPENDENT ADULT ABUSE The reporting of elder or dependent adult abuse is different than the reporting of child abuse because the Act creates an exception from one s reporting responsibilities. This exception allows practitioners to sift potentially real cases of E/DA from ones that may have been imagined by an E/DA. However, this exception is limited to a specific set of circumstances. If an E/DA tells a psychotherapist that he or she has been abused physically or financially, abandoned, abducted, isolated, or neglected, the psychotherapist does not have to report the incident if all of the following things are true: The psychotherapist is not aware of any independent evidence that corroborates the alleged abuse; The E/DA has been diagnosed with a mental illness or dementia, or is the subject of a courtordered conservatorship because of a mental illness or dementia; and, In the exercise of clinical judgment, the psychotherapist reasonably believes that the alleged abuse did not occur. Note, however, that this exception is only applicable when an E/DA tells a psychotherapist that he or she has been the victim of physical or financial abuse; isolation; abduction; abandonment; or, neglect. This exception is not available if the psychotherapist observes independently or has knowledge of an incident from other sources that reasonably appears to be physical or financial abuse; isolation; abduction; abandonment; or neglect. MAY TWO OR MORE HEALTH PRACTITIONERS FILE A SINGLE REPORT? Two or more health practitioners may file a single report if the practitioners are all present and agree that E/DA abuse has occurred or conclude that at least a suspicion of E/DA abuse has arisen. It is possible for a trainee and a supervisor, or an intern and a supervisor, or a licensee in conjunction with other health practitioners, to combine their reporting obligations and file a single report. However, if the health practitioner who is supposed to file the single report fails to do so, then each of the other practitioners must file his or her own report. Thus, it is important for practitioners to make sure that the report is actually filed when reports are filed jointly. WHEN, HOW, AND WHERE TO REPORT? In light of the changes made to the E/DA abuse reporting laws that went into effect January 1, 2013, there are now six different reporting scenarios. With some of these scenarios, the time frames for reporting, and the destinations of the reports, have changed dramatically. You must have a workingknowledge of each of these scenarios to comply with your E/DA abuse reporting responsibilities. The Therapist - March/April 2013 Page 6

7 Reporting Scenario Number One If the physical abuse of an E/DA results in serious bodily injury to an E/DA, and such abuse occurred in a long-term care facility, such as a skilled nursing facility, a community care facility, or a residential care facility, among others, except a state mental hospital or a state developmental center, the mandated reporter must telephone local law enforcement immediately, which means within two hours of observing, obtaining knowledge of, or suspecting such abuse and injury occurred, and the written report must be made to local law enforcement, the local ombudsman, and the long-term care facility s licensing agency within two hours of acquiring the information [W&I 15630(b)(1)(A)(i)]. Reporting Scenario Number Two If the physical abuse does NOT result in serious bodily injury to an E/DA, but it occurred in a longterm care facility, but not a state mental hospital or a state developmental center, the mandated reporter must telephone local law enforcement within 24 hours of observing, obtaining knowledge of, or suspecting such abuse occurred, and the written report must be made to local law enforcement, the local ombudsman, and the long-term care facility s licensing agency within twenty-four hours of acquiring the information [W&I 15630(b)(1)(A)(ii)]. Reporting Scenario Number Three When the suspected abuse is allegedly caused by a resident of a long-term care facility, and the resident has a physician s diagnosis of dementia, and there is no serious bodily injury, as reasonably determined by the mandated reporter, drawing upon his or her training or experience, the reporter must report the suspected abuse to the local ombudsman or to local law enforcement by telephone immediately or as soon as practicably possible, and by written report within twenty-four hours of acquiring the information [W&I 15630(b)(1)(A)(iii)]. Reporting Scenario Number Four If the suspected abuse is abuse other than physical abuse, meaning financial, isolation, or abandonment, etc., and such abuse occurred in a long-term care facility, except a state mental health hospital or a state developmental center, a telephone report and a written report must be made to either local law enforcement or the local ombudsman. With this option, the immediately or as soon as practicably possible standard for the telephone report and the within two working days rule for the written report seem to be the principles to follow since no other time periods are mentioned [W&I 15630(b)(1)(C)]. Reporting Scenario Number Five If the suspected abuse occurred in a state mental hospital or a state developmental center, the report must be made to designated investigators of the State Department of State Hospitals, the State Department of Developmental Services, or to local law enforcement [W&I 15630(b)(1)(D)]. With this option, the immediately or as soon as practicably possible standard for the telephone report and the within two working days rule for the written report seem to be the principles to follow since no other time periods are mentioned [W&I 15630(b)(1)(C)]. Reporting Scenario Number Six If the suspected abuse occurred in any place other than a long-term care facility, a state mental hospital, or a state developmental center, the mandated report can be made to Adult Protective Services or to local law enforcement, with the immediately or as soon as practicably possible standard applying for the telephone report and the within two working days rule applying for the written report since no other time periods are mentioned [W&I 15630(b)(1)(F)]. IMMUNITY Health practitioners are sometimes fearful of reporting E/DA abuse because they think they will be The Therapist - March/April 2013 Page 7

8 sued or prosecuted if a subsequent investigation reveals they were wrong. The law has addressed this subject by granting immunity from civil liability and criminal prosecution to health practitioners who make E/DA abuse reports. This immunity insulates a practitioner from liability or prosecution even if a subsequent investigation reveals that the practitioner was wrong about what he or she suspected. CONCLUSION When it comes to reporting E/DA abuse, the air is foggier than it used to be. As a mandated reporter of E/DA abuse, you must understand what types of things constitute E/DA abuse as well as the six different scenarios for reporting E/DA abuse. The Tule fog is thickening be careful! David Jensen, JD, is a staff attorney at CAMFT. He is available to answer members questions regarding legal, ethical, and licensure issues. The Therapist - March/April 2013 Page 8