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 §
15610.37), 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 § 15610.27). 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 § 15610.23).
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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 § 15610.65).
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 § 15610.65).
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 § 15610.07).
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.
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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 § 15610.63).
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.4th 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.
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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”
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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 § 15610.67).
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 § 15610.05).
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 § 15610.06).
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 § 15610.43).
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 §
15610.30). 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.
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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 §
15610.53).
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.
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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
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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.
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