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File Reporting Signs of Abuse |
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By
Karen Markus, JD, RN Each year about 225,000 incidents of elder and dependent adult abuse occur in California. This is an increase of more than 1,000 percent over the number of reported cases 12 years ago. In more than half of such incidents, the victims are not able to care for themselves due to frailty, health problems, mental or emotional problems, or family dysfunction.1 Domestic violence and child abuse are also on the rise. In primary care settings, home health care, case management, and many other fields of practice, nurses are the first, and sometimes only, healthcare professionals with whom patients have contact. Nurses who are aware of the common characteristics of patient abuse and take steps to report it can truly fulfill their role as patient advocates. Nurses also have a clear legal obligation to report abuse or neglect to the appropriate authorities. Failing to do so can lead to serious criminal penalties. Elder abuse In 1998, the California Legislature responded to the increase in elder and dependent adult abuse by enacting a law expanding the types of abuse that must be reported by healthcare professionals and establishing a statewide program to maintain the safety of elder and dependent adults. As of Jan. 1 there are now five categories of abuse that must be reported by licensed nurses if encountered in their professional capacity: physical abuse, abandonment, isolation, financial abuse, and neglect. The new law also defines the categories. For example, physical abuse includes using physical or chemical restraints for punishment or any other purpose not authorized by the patient’s physician, or for a longer period than authorized. Isolation includes preventing the victim from receiving visitors, phone calls, or mail. Neglect encompasses situations in which elder or dependent adults are not able to take care of themselves and are not receiving adequate care.1 Nurses are legally required to report any incidents they observe, reasonably suspect, or are told about by an elder or a dependent adult. However, there are two exceptions to this rule. If a nurse knows a report has been made by another staff member, then there is no legal requirement to report the incident. There is also no legal requirement to report if a nurse has been told about abuse by an adult diagnosed with mental illness or dementia and there is no independent corroborating evidence of abuse and the nurse reasonably believes that no abuse occurred.1 The nurse should, however, document what the patient said and the reasons for deciding not to report the alleged abuse. Reporting requirements Reports of abuse must be made by telephone as soon as possible after the abuse is perceived. Which agency to call depends on where the abuse occurred. In long-term care facilities the county ombudsman or local law enforcement agency should be contacted. The relevant state agency, such as the Department of Mental Health or the Department of Developmental Services, should be called for incidents in state facilities. All other incidents should be reported to the county adult protective services agency or to local law enforcement officials.1 Telephone reports must be followed up in writing within two working days on special forms available from county adult protective services agencies. The identity of a nurse who reports elder or dependent adult abuse is kept confidential and can be disclosed only to investigative and prosecutorial authorities. Nurses who report as required are immune from civil and criminal liability. Nurses who fail to report may be found guilty of a misdemeanor, which carries a penalty of up to $1,000 and six months in jail.1 Under California case law, nurses who fail to report abuse may also be held liable for damages suffered by the abuse victim. 2 Domestic violence California law requires nurses and other licensed healthcare providers to report incidents of domestic violence even when only minor injuries are sustained.3 This requirement is triggered whether the patient is treated for injuries caused by domestic violence or for other complaints. The reporting requirements and penalties are similar to those for elder and dependent adult abuse. Nurses should, however, be sensitive to the fact that a victim of domestic violence is often at greater risk when law enforcement authorities intervene, and they may wish to consult with other members of the healthcare team to make sure the victim is protected before making the report. Child abuse Nurses must also report known or suspected child abuse encountered in their professional capacity. The law lists five categories of child abuse that must be reported: physical abuse, sexual abuse or exploitation, willful cruelty or unjustifiable punishment, corporal punishment, and neglect. A telephone report to the local law enforcement agency must be made as soon as possible, followed up within 36 hours by a written report on special forms available from child protective services agencies.4 Because of the importance of reporting child abuse, the immunity given to nurses is even stronger than in other areas. Nurses who report child abuse have absolute immunity from civil and criminal liability. This means that even if a report is made negligently or recklessly, the nurse cannot be held liable. Nurses who fail to report suspected child abuse are subject to the same criminal penalties as those who fail to report adult abuse.4 Karen Markus, JD, RN, is an attorney at law specializing in legal nurse consulting. She teaches healthcare law at Santa Clara University School of Law in Santa Clara, California.
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