Seven categories of elder abuse have been described by the National
Center on Elder Abuse (NCEA), formerly the National Aging Resource Center
on Elder Abuse. Categories include the following:
- Physical abuse is defined as any act of violence that causes pain, injury,
impairment, or disease, including striking, pushing, force-feeding, and
improper use of physical restraints or medication.
- Psychological or emotional abuse is conduct that causes mental anguish.
Examples include threats, verbal or nonverbal insults, isolation, and humiliation.
Some legal definitions require identification of at least 10 episodes of
this type of behavior within a single year to constitute abuse.
- Financial abuse is misuse of an elderly person's money or assets for personal
gain. Acts such as stealing (eg, money, social security checks, possessions)
or coercion (eg, changing a will, assuming power of attorney) constitute
financial abuse.
- Neglect is the failure of a caretaker to provide for the patient's basic
needs. As in the previous examples of abuse, neglect can be physical, emotional,
or financial. Physical neglect is failure to provide eyeglasses or dentures,
preventive health care, safety precautions, or hygiene. Emotional neglect
includes failure to provide social stimulation (eg, leaving an older person
alone for extended periods). Financial neglect involves failure to use
the resources available to restore or maintain the well-being of the aging
adult.
- Sexual abuse is defined as nonconsensual intimate contact or exposure or
any similar activity when the patient is incapable of giving consent. Family
members, friends, institutional employees, and fellow patients can commit
sexual abuse.
- Self-neglect is behavior in which seniors compromise their own health and
safety, as when an aging adult refuses needed help with various daily activities.
When the patient is deemed competent, many ethical questions arise regarding
the patient's right of autonomy and the physician's oath of beneficence.
- The miscellaneous category includes all other types of abuse, including
violation of personal rights (eg, failing to respect the aging person's
dignity and autonomy), medical abuse, and abandonment.
The following is a California statute dealing with elder abuse:
- (a) Any person who has assumed full or intermittent
responsibility for care or custody of an elder or dependent adult,
whether or not he or she receives compensation, including
administrators, supervisors, and any licensed staff of a public or
private facility that provides care or services for elder or
dependent adults, or any elder or dependent adult care custodian,
health practitioner, clergy member, or employee of a county adult
protective services agency or a local law enforcement agency, is a
mandated reporter.
- (b) (1) Any mandated reporter who, in his or her professional
capacity, or within the scope of his or her employment, has observed
or has knowledge of an incident that reasonably appears to be
physical abuse, as defined in Section 15610.63 of the Welfare
and Institutions Code, abandonment, abduction, isolation, financial
abuse, or neglect, or is told by an elder or dependent adult that he
or she has experienced behavior, including an act or omission,
constituting physical abuse, as defined in Section 15610.63 of
the Welfare and Institutions Code, abandonment, abduction, isolation,
financial abuse, or neglect, or reasonably suspects that abuse, shall
report the known or suspected instance of abuse by telephone
immediately or as soon as practicably possible, and by written report
sent within two working days, as follows:
- (A) If the abuse has occurred in a long-term care facility,
except a state mental health hospital or a state developmental center, the
report shall be made to the local ombudsperson or the local law
enforcement agency. Except in an emergency, the local ombudsperson and the
local law enforcement agency shall, as soon as practicable, do all of the
following:
- (i) Report to the State Department of Health Services
any case of known or suspected abuse occurring in a long-term health care
facility, as defined in subdivision (a) of Section 1418 of the Health
and Safety Code.
- (ii) Report to the State Department of Social Services
any case of known or suspected abuse occurring in a residential care facility
for the elderly, as defined in Section 1569.2 of the Health and
Safety Code, or in an adult day care facility, as defined in
paragraph (2) of subdivision (a) of Section 1502.
- (iii) Report to the State Department of Health Services
and the California Department of Aging any case of known or suspected abuse
occurring in an adult day health care center, as defined in
subdivision (b) of Section 1570.7 of the Health and Safety Code.
- (iv) Report to the Bureau of Medi-Cal Fraud and Elder
Abuse any case of known or suspected criminal activity.
- (B) If the suspected or alleged abuse occurred in a state
mental hospital or a state developmental center, the report shall be made
to designated investigators of the State Department of Mental Health or
the State Department of Developmental Services, or to the local law
enforcement agency. Except in an emergency, the local law enforcement agency
shall, as soon as practicable, report any case of known or suspected criminal
activity to the Bureau of Medi-Cal Fraud and Elder Abuse.
- (C) If the abuse has occurred any place other than one described in subparagraph (A), the report shall be made to the adult protective services agency or the local law enforcement agency.
- (2) (A) A mandated reporter who is a clergy member who
acquires knowledge or reasonable suspicion of elder or dependent adult
abuse during a penitential communication is not subject to paragraph (1).
For purposes of this subdivision, "penitential communication" means
a communication that is intended to be in confidence, including, but
not limited to, a sacramental confession made to a clergy member who,
in the course of the discipline or practice of his or her church,
denomination, or organization is authorized or accustomed to hear
those communications and under the discipline tenets, customs, or
practices of his or her church, denomination, or organization, has
a duty to keep those communications secret.
- (B) Nothing in this subdivision shall be construed to
modify or limit a clergy member's duty to report known or suspected elder and
dependent adult abuse when he or she is acting in the capacity of a
care custodian, health practitioner, or employee of an adult
protective agency.
- (C) Notwithstanding any other provision in this section,
a clergy member who is not regularly employed on either a full-time or
part-time basis in a long-term care facility or does not have care
or custody of an elder or dependent adult shall not be responsible
for reporting abuse or neglect that is not reasonably observable or
discernible to a reasonably prudent person having no specialized
training or experience in elder or dependent care.
- (3) (A) A mandated reporter who is a physician and surgeon,
a registered nurse, or a psychotherapist, as defined in Section 1010
of the Evidence Code, shall not be required to report, pursuant to
paragraph (1), an incident where all of the following conditions
exist:
- (i) The mandated reporter has been told by an elder or
dependent adult that he or she has experienced behavior constituting physical
abuse, as defined in Section 15610.63 of the Welfare and Institutions
Code, abandonment, abduction, isolation, financial abuse, or neglect.
- (ii) The mandated reporter is not aware of any independent
evidence that corroborates the statement that the abuse has occurred.
- (iii) The elder or dependent adult has been diagnosed with a
mental illness or dementia, or is the subject of a court-ordered
conservatorship because of a mental illness or dementia.
- (iv) In the exercise of clinical judgment, the physician
and surgeon, the registered nurse, or the psychotherapist, as defined in
Section 1010 of the Evidence Code, reasonably believes that the abuse
did not occur.
- (B) This paragraph shall not be construed to impose upon
mandated reporters a duty to investigate a known or suspected incident of
abuse and shall not be construed to lessen or restrict any existing
duty of mandated reporters.
- (4) (A) In a long-term care facility, a mandated reporter
shall not be required to report as a suspected incident of abuse, as
defined in Section 15610.07, an incident where all of the following
conditions exist:
- (i) The mandated reporter is aware that there is a proper
plan of care.
- (ii) The mandated reporter is aware that the plan of care
was properly provided or executed.
- (iii) A physical, mental, or medical injury occurred as
a result of care provided pursuant to clause (i) or (ii).
- (iv) The mandated reporter reasonably believes that the
injury was not the result of abuse.
- (B) This paragraph shall not be construed to require a
mandated reporter to seek, nor to preclude a mandated reporter from seeking,
information regarding a known or suspected incident of abuse prior
to reporting. This paragraph shall apply only to those categories
of mandated reporters that the State Department of Health Services
determines, upon approval by the Bureau of Medi-Cal Fraud and Elder
Abuse and the state long-term care ombudsperson, have access to plans
of care and have the training and experience necessary to determine
whether the conditions specified in this section have been met.
- (c) (1) Any mandated reporter who has knowledge, or reasonably
suspects, that types of elder or dependent adult abuse for which
reports are not mandated have been inflicted upon an elder or
dependent adult, or that his or her emotional well-being is
endangered in any other way, may report the known or suspected
instance of abuse.
- (2) If the suspected or alleged abuse occurred in a long-term
care facility other than a state mental health hospital or a state
developmental center, the report may be made to the long-term care
ombudsperson program. Except in an emergency, the local ombudsperson
shall report any case of known or suspected abuse to the State
Department of Health Services and any case of known or suspected
criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse,
as soon as is practicable.
- (3) If the suspected or alleged abuse occurred in a state mental
health hospital or a state developmental center, the report may be
made to the designated investigator of the State Department of Mental
Health or the State Department of Developmental Services or to a
local law enforcement agency or to the local ombudsperson. Except
in an emergency, the local ombudsperson and the local law enforcement
agency shall report any case of known or suspected criminal activity
to the Bureau of Medi-Cal Fraud and Elder Abuse, as soon as is
practicable.
- (4) If the suspected or alleged abuse occurred in a place
other than a place described in paragraph (2) or (3), the report may be
made to the county adult protective services agency.
- (5) If the conduct involves criminal activity not covered
in subdivision (b), it may be immediately reported to the appropriate
law enforcement agency.
- (d) When two or more mandated reporters are present and
jointly have knowledge or reasonably suspect that types of abuse of an elder
or a dependent adult for which a report is or is not mandated have
occurred, and when there is agreement among them, the telephone
report may be made by a member of the team selected by mutual
agreement, and a single report may be made and signed by the selected
member of the reporting team. Any member who has knowledge that
the member designated to report has failed to do so shall thereafter
make the report.
- (e) A telephone report of a known or suspected instance
of elder or dependent adult abuse shall include, if known, the name of the
person making the report, the name and age of the elder or dependent
adult, the present location of the elder or dependent adult, the
names and addresses of family members or any other adult responsible
for the elder or dependent adult's care, the nature and extent of
the elder or dependent adult's condition, the date of the incident,
and any other information, including information that led that person
to suspect elder or dependent adult abuse, as requested by the
agency receiving the report.
- (f) The reporting duties under this section are individual,
and no supervisor or administrator shall impede or inhibit the reporting
duties, and no person making the report shall be subject to any
sanction for making the report. However, internal procedures
to facilitate reporting, ensure confidentiality, and apprise supervisors
and administrators of reports may be established, provided they are
not inconsistent with this chapter.
- (g) (1) Whenever this section requires a county adult
protective services agency to report to a law enforcement agency, the law
enforcement agency shall, immediately upon request, provide a copy
of its investigative report concerning the reported matter to that
county adult protective services agency.
- (2) Whenever this section requires a law enforcement agency
to report to a county adult protective services agency, the county adult
protective services agency shall, immediately upon request, provide
to that law enforcement agency a copy of its investigative report
concerning the reported matter.
- (3) The requirement to disclose investigative reports
pursuant to this subdivision shall not include the disclosure of social services
records or case files that are confidential, nor shall this
subdivision be construed to allow disclosure of any reports or
records if the disclosure would be prohibited by any other provision
of state or federal law.
- (h) Failure to report physical abuse, as defined in Section
15610.63 of the Welfare and Institutions Code, abandonment,
abduction, isolation, financial abuse, or neglect of an elder or
dependent adult, in violation of this section, is a misdemeanor,
punishable by not more than six months in the county jail, by a fine
of not more than one thousand dollars ($1,000), or by both that fine
and imprisonment. Any mandated reporter who willfully fails to
report physical abuse, as defined in Section 15610.63 of the
Welfare and Institutions Code, abandonment, abduction, isolation, financial
abuse, or neglect of an elder or dependent adult, in violation of
this section, where that abuse results in death or great bodily
injury, shall be punished by not more than one year in a county jail,
by a fine of not more than five thousand dollars ($5,000), or by
both that fine and imprisonment. If a mandated reporter
intentionally conceals his or her failure to report an incident known
by the mandated reporter to be abuse or severe neglect under this
section, the failure to report is a continuing offense until a law
enforcement agency specified in paragraph (1) of subdivision (b) of
Section 15630 of the Welfare and Institutions Code discovers the offense.
- (i) For purposes of this section, "dependent adult"
shall have the same meaning as in Section 15610.23.
- 15631. (a) Any person who is not a mandated reporter under Section
15630, who knows, or reasonably suspects, that an elder or a
dependent adult has been the victim of abuse may report that abuse
to a long-term care ombudsman program or local law enforcement agency
when the abuse is alleged to have occurred in a long-term care
facility.
- (b) Any person who is not a mandated reporter under Section
15630, who knows, or reasonably suspects, that an elder or a dependent
adult has been the victim of abuse in any place other than a
long-term care facility may report the abuse to the county adult
protective services agency or local law enforcement agency.
- 15632. (a) In any court proceeding or administrative hearing,
neither the physician-patient privilege nor the psychotherapist-patient privilege applies to the specific information
reported pursuant to this chapter.
- (b) Nothing in this chapter shall be interpreted as requiring
an attorney to violate his or her oath and duties pursuant to Section
6067 or subdivision (e) of Section 6068 of the Business and
Professions Code, and Article 3 (commencing with Section 950) of
Chapter 4 of Division 8 of the Evidence Code.
