Geordie Duckler: Good afternoon. Today, we will be holding an online seminar, entitled Oregon Elder and Child Abuse Reporting, and we'll be talking about the concerns, the requirements, and some general themes regarding what lawyers are expected and obligated to do in Oregon and around the country about issues of elder and child abuse reporting arising in their practice.
My name is Geordie Duckler. I'll be your presenter today. Just so you know, I have been a trial attorney for over 34 years. My licenses are in Oregon and California. I have been actively engaged in both the plaintiff and defense side of civil and criminal litigation in cases of all types across the country, in both the state and federal courts.
I have considered this specific topic in great detail throughout my career. I presented several different seminars on it, and today, I hope to get you well informed and up to speed about all that you need to know in this very interesting area of law.
We will focus on Oregon law in this area, but we will also compare rules and cases in other states as well, to get a better handle on where Oregon law fits into the national conversation.
First, let's start with child abuse reporting, and let's take an overview of some philosophical themes that apply. We can set the ground rules down about two core concepts, which make a difference to why we are concerned about this area at all, ethics, and reporting.
First with ethics, in a narrow sense, this seminar is, of course, about the obligations attorneys have regarding reporting abuse of children and of elderly people, but in a much larger sense, however, it is about ethical commands, in general, and the role that such commands play in society when affecting specialized institutions, such as the legal system.
Law, altogether, is a compromise. It's a compromise between moral ideas and practical possibilities, and the same is true of legal ethics. How lawyers reconcile the tension between some moral aspiration they might have, and some pragmatic constraint they might have is important, not just for the profession, but for the public, as well.
Lawyers play a crucial role in the structure of our private affairs, our social institutions, and this role carries multiple, sometimes competing, responsibilities to clients, and courts, and society, in general. Lawyers also face conflicts between their professional obligations and their own personal interests. A central challenge of legal practice is how to live a life of integrity in that tension, between those competing demands, ethics, and practice.
It's a fact of life that ethical dilemmas are always around to be resolved for lawyers. They never go away. Partly, that's a function of just a lack of consensus in the profession about what the problems are, what values should be central to a professional life. We can at least agree, in general, that clients deserve reasonable access to legal assistance and the legal processes that satisfy some minimum standard of fairness, effectiveness, and integrity, and that practitioners deserve conditions that identify what the standards are to provide that access.
It's in the day-to-day practice of law that we find difficulties arise, and it's where we use compromise to address the confrontation between the theory of moral commitment and the reality of doing law. For us, today, the ethics of mandatory reporting highlights that compromise. It draws on insights we might glean about those competing demands.
We are going to look at both the narrow, and the broad, and we are going to keep in mind the overall theme that any ethical command must create attention among and within both social and legal relationships, something that lawyers are heavily intricated in.
This is necessarily so, given political, sociological, and cultural order of a constitution-based democracy, such as ours, so when it comes to ethical commands to attorneys, in particular, and the protection of vulnerable people, in particular, things such as mandatory child and elder abuse reporting by attorneys, highlights a number of concepts involved in identifying those tensions that affect those relationships.
We're going to look at three. The first tension involves the subject of the reporting requirement, which is, in this case, the child. This is that tension between our communal interest in protecting the public at large, and our narrower interest in protecting certain subdivisions of the public, folks who might need special security measures provided for them, here, minors and clients.
We might need to find that protection taken from others who might take unfair advantage of them. That tension exists, because there is no realistic way to both protect everybody as if they were all truly equal, and yet at the same time, attach importance to certain inequalities, which we can't help but recognize as real.
The second tension involves the object of the reporting requirement. In this case, the attorney. This is the tension highlighted by making child abuse reporting a requirement for those specifically in the legal profession, people who are engaged, in part, in fundamentally different relationships with others than are, say doctors, or social workers, or law enforcement officers.
That second tension exists, because in our society, while some of our expectations of what is required of attorneys as licensed professionals are very similar to those expectations we have of what is required of other licensed professionals. For instance, a duty to affirmatively protect a personal interest. Still, other expectations are substantially distinct. A lawyer's duty to protect secrets, learned in the course of communications, for example, is quite distinct from an officer's duty to disclose those things.
The third tension we look at involves the mechanics of the requirement, that is, the act of reporting, itself. This tension reflects a pressure created among the interplay in interpretation of three types of overlapping in independent legal rules regarding public and private reports.
One, the state statutes requiring child abuse reporting, to the evidence codes, protecting the attorney-client privilege, in general, and three, the ethical rules regarding an attorney's professional responsibilities to others under certain circumstances. These rules intersect and compete with each other, at one in the same time.
Here is a slice of that first tension. The tension involving the subject, the child. One important principle in our country is that there is no general duty to come to the rescue of another. In short, that one cannot be held liable for simply standing around and doing absolutely nothing, while another person nearby is in peril.
No one, in other words, is really required in our country to be a good Samaritan, regardless of whether being so might seem, at a moral level, a good thing to be.
The case that best articulated that rule was L. S. Ayers and Company versus Hicks. It's in your outline materials. An Indiana case from 1942, where the plaintiff's fingers had got caught in the defendant's escalator and explaining that the rule of no duty to rescue is premised on the belief that there must be a legal duty in place, in order to impose liability.
"In short, with purely moral obligations, the law does not deal." That is a very famous quote from a New Hampshire case from 1898, that the L. S. Ayers court complied with. That's an odd, but a key idea for us in this seminar, that what is lawful or unlawful, in a core sense, has really nothing to do with what is moral or immoral.
Those are very different spheres of concern for society. Sometimes, they overlap. Yet, often, it's only coincidentally. For our specific purposes, we can observe this to be so under this American rule that a defendant can be liable for negligent conduct, but there is just no requirement that they independently be a good Samaritan.
Now, the American form of the rule is unusual, especially when compared to the rest of the planet. Most European countries do have a duty to rescue rule for strangers, France, Germany, Poland, Italy, Denmark, Russia. The list goes on. It's the rule that allowed the police to investigate and charge several photographers and drivers near Princess Diana's car, when she was killed for them failing to come to the rescue of the injured victims after that infamous crash.
Now, there are exceptions, and one of the exceptions to the American no duty to rescue rule, is where the two actors, the one in peril, and the one watching them flounder about, are in a special relationship with each other already. One, in which we recognize that there is such a close bond and a corresponding inequality of power between them, that some legislature has already imposed an express obligation on the latter to take care of the former anyway.
That exception has its roots in maritime law, where a duty was initially created, that required ship masters to make reasonable efforts to rescue seamen who had fallen overboard. The principal was rapidly applied to other employer-employee relationships, and then expanded to other uneven playing field relationships, such as common carrier and passenger, innkeeper and guest, legal custodian in charge ,jailer and prisoner teacher and student, shopkeeper and business visitor. Then, of course, attorney and client.
Now, child abuse is an emotionally charged topic, and as the conduct, itself, goes, the overlap of law and morality is very large. The act of abuse is both universally vilified on moral grounds, and universally criminalized on legal grounds, but child protection embraces a different theme than child abuse.
It doesn't involve condemning or punishing the act of abuse. It involves procedures implemented to hopefully prevent acts of abuse from ever occurring in the first place, or, alternatively, procedures to enable past acts of abuse that have been uncovered to eventually be punished.
Although the vast majority of people agree about the moral obligation imposed on them to not abuse a child, the harder philosophical question, which concerns us then is this, "Who should have the legal obligation imposed on them to protect a child from abuse by others?"
Now, at the very easy end of that who spectrum, are two obvious choices, one, the child's own parent, and two, law enforcement personnel. There are some social relationships that clamor loudly for a special relationship to be of that type, where protection is mandated. This is an understandable exception to the no duty to rescue rule. In criminal law, parents can be held responsible for failing to render aid to their own children, and spouses have even been charged with failing to rescue their partners.
Now, at the other end of the who, is on the hook spectrum are much more debatable choices, people such as the child's same age peers and complete strangers to the child. How far and to whom the obligation to protect extends, has not been uniformly decided to among the states, and Oregon, specifically, finds himself at something of an odd location on the spectrum.
With the reporting of child abuse, it seems somewhat harsh to the peers and stranger's part of the public, that we would break the basic rule, and simply force everyone to have to come to the aid of another whenever the other happens to be a child. That's the European model, which we've rejected. Yeah, some states have done so. Approximately 15 states require< "All persons," or, quote, "Everyone," to report child abuse.
For example, New Jersey has a statute, and Kentucky has a statute, demanding that, "Any person who knows or has reasonable cause to believe that a child is dependent, neglected, or abused, shall immediately cause an oral or written report to be made to a law enforcement agency."
Now, those types of broad commands are in direct conflict with the principles behind our no duty to rescue rule, and there has been some backlash in the affected states by those antagonistic to extensive government interference with individual freedoms, including this uniquely odd American version of freedom to stand around and do nothing, even if it seems morally questionable to be doing so.
Other states, therefore, temper that sort of blanket command, by limiting the obligation to those who are, at least, already burdened with some obligation anyway, to protecting minors in other circumstances. Twenty-five of the states require only specific persons such as social workers, psychologists, or physicians, primarily those already with statutory obligations to be the ones to report child abuse.
As to lawyers, a much smaller group of only five states, Arkansas, Montana, New York, Texas, and West Virginia, include in that specified list particular kinds of attorneys, notably district attorneys, judges, family law masters, guardian ad litems, public assistance attorneys, and those particular attorneys who might have direct contact with children in their daily activities.
An example is West Virginia, which has a code that states it is mandatory for any circuit judge, family, law master, or magistrate, having a reasonable cause to suspect child abuse or neglect to immediately report it to DHS.
Now, Oregon happens to be one of only four states along with Mississippi, Nevada, and Ohio, that extends that specified reach to all attorneys, doesn't restrict the category to only certain types of attorneys. That is in direct contrast to California, which is a state that actually goes out of its way to specifically dis-include attorneys from the list of mandatory reporters.
The relationship between these tensions is really one of implementing good public policies versus working out effective and practical procedures. Involving attorneys, thus raises that second tension, that of lumping lawyers in with all the other professionals who interact with children, when lawyers very clearly have a crucially different role to play than do other professionals.
In the realm of professionals, specialists, and public servants, it is first good to recognize that doctors, therapists, law enforcement officers, teachers, and clergy, often, A, have much more frequent day-to-day contact with children, and, B, are much more likely to be better trained in actually identifying signs and symptoms of child abuse, and of assessing the likely, and practical risks of past and future harm to a child, or at least, much more relative to the experiences of lawyers.
Moreover, there's no real disconnect between doctors, therapists, law enforcement officers, teachers, and clergy performing their jobs and reporting suspected abuse. Both can be done. A doctor can still perform the essential function of healing the child. A police officer can still perform the essential function of ferreting out crime. A teacher can still educate, a rabbi can still perform the essential function of spiritual guidance, right alongside with those people making those reports.
The attorney-client relationship, on the other hand, relies on crucial aspects of confidentiality far more than the others do, is an essential component of the services that are being provided to the child. Attorneys can't represent clients adequately if they are required by a law to take adverse actions against their own clients. Indeed, attorneys can actually be held personally liable in tort for doing so. A cause of action may arise for breach of confidentiality or invasion of privacy when such the closure disclosures are made.
That brings us to our third tension, the mechanics of making a report, attention that reflects clashing legal rules about what attorneys are allowed to do, and what attorneys are supposed to do. A slice of that third tension is this, another important principle of ours demands that individuals shoulder their own legal responsibility for their own acts.
As a component of that principle, we, therefore, tend to disfavor anything that immunizes people from their legal responsibility for their bad acts. We especially define immunities, and we expressly limit immunities, because we tend to think of immunities as, "situationally necessary, but morally distasteful, as legal tools." For that reason, immunity grants are in derogation of the common law, and they are strictly construed.
The violating a statute is a bad act, and we wish to hold people referred to in a statute, for example, mandatory reporters in the Oregon child abuse reporting statute. We wish to hold them accountable for not complying with it. Yet, we also recognize that attorneys are particularly bound by, and clients are particularly protected by, a set of ethical rules, as well as an important communication privilege between them.
The clash between the broadness of the statutory and ethical commands, and the narrowness of a scenario, where disclosure of abuse will violate the protected privileged communication between an attorney and their client, forces a need to immunize attorneys for then reporting. But, then, of course, we strictly construe that type of immunity.
Statutory schemes which require reporting and also provide immunity are designed to encourage the reporting of child abuse. All 50 states have child abuse reporting immunity statutes. Federal legislation provides incentives for states that have child abuse reporting requirements, and an immunity protection for those who report, and, indeed, states must grant immunity for mandatory reporting, in order to even qualify for federal assistance.
Now, many state reporting immunity statutes are deemed qualified immunity statutes. States such as Wyoming, which only provides immunity if the report was made in good faith, but not otherwise. In contrast, absolute immunity statutes provide immunity, even if the report were made with malice. States such as California, articulated in detail in the infamous case of McMartin versus Children's Institute, a citation provided in your outline.
Oregon statutory scheme for reporting child abuse reflects aspects of both types, qualified, and absolute, depending on factual circumstances.
The case that we look at, Tennyson versus Children's Services Division from 1989, has our state Supreme Court pondering just that issue. The court first noted that qualified immunity is the norm for executive officials, protecting conduct that doesn't violate clearly established statutory or constitutional rights, of which a reasonable person would've known. Qualified immunity benefits, among others, governors, and hospital superintendents, and, of course, police officers.
In comparison, the Tennyson court observed that absolute immunity, on the other hand, avails those whose special functions require a complete protection from liability, such insulates conduct within the scope of a particular function, regardless of whether that conduct violated rights of which a reasonable person would've known.
While, as with qualified immunity, the function determines the immunity, absolute immunity protects functions that are integral parts of the judicial process, so, therefore, judges are absolutely immune for judicial acts, police officers, absolutely immune for testifying at a trial, state prosecutors, absolutely immune for initiating a criminal prosecution.
The Tennyson court concluded then, that Child Services Division workers are only entitled to qualified immunity for their investigative acts regarding reports of child abuse, and it's likely, that further interpretations our statute will render it likely that only qualified immunity applies to all reporters, including lawyers.
Now, certainly the language of ORS 419B.025, which imparts immunity to quote, "Anyone participating in good faith in the making of a report of child abuse, and who has reasonable grounds for the making," suggests that all immunity be merely qualified, but our statute doesn't specify one way or the other, and options remain open.
To add to the complexity, stuffed in between the statute and the privilege, is a vague set of guidelines called the Professional Responsibility Rules, and they pull in both directions.
There are rules demanding that attorneys keep certain information confidential, like our Rule of Professional Conduct 1.6. There are rules demanding that attorneys disclose material facts, in order to avoid a client's illegal act, our Rule of Professional Conduct 4.1, and then, the rules demanding that attorneys, themselves, not engage in misconduct or violations of law, our rule of Professional Conduct 8.4.
Like the attorney-client privilege, the duty of confidentiality is an ethical rule. It's based on standards of professional responsibility. It is fundamental to the attorney-client relationship. The scope of the duty of confidentiality, however, is broader than the scope of the communication privilege.
It extends to all information relating to the client, regardless of the source from which it was acquired. Information that has been gathered from third persons about a child's mistreatment, wouldn't be protected by the attorney-client privilege, but it would fall within the embrace of the confidentiality duty obligation.
Our Oregon Mandatory-Reporting Statute attempts to take into account both the communication privilege, as well as the confidentiality duty. It states, "An attorney is not required to make a report by reason of information communicated to the attorney in the course of representing a client, if disclosure of the information would be detrimental to the client."
That is an exemption that does not restrict itself to only information communicated by the client. It encompasses information from other sources, as well, and it sets out the test as to the type of information, via the fairly broad descriptor of detrimental.
Now, it is a little odd that none of the standard privileges prohibit the exclusion of evidence in a proceeding about the abuse, except the attorney-client privilege. You consider ORS 419B.040 (1), in the case of abuse of a child, the privilege created, including all of the privileges that we are aware of, shall not be a ground for excluding evidence regarding a child's abuse in any judicial proceedings.
The Oregon statute, itself, ORS 419B, starts out with section .005, with definitions. Abuse is defined as any assault, any mental injury, the rape of a child, sexual abuse, sexual exploitation, negligent treatment, or maltreatment of a child, threatened harm to a child, buying or selling a person, permitting a person to enter or remain upon premises where methamphetamines are manufactured, or unlawful exposure to a controlled substance. All of those activities encompass abuse.
Public or private officials are defined as a number of different categories of people, and, of course, one of those subdivisions says just the word attorney.
Under ORS 419B.010, it defines whether a public or private official, which, of course, would be an attorney, having reasonable cause to believe that any child with whom the official comes in contact has suffered abuse, or that any person with whom the official comes in contact has abused a child, shall immediately report, or cause a report to be made.
Then, it lists the manner of the report, it lists the communication privilege, and it lists that attorney not being required to make a report if it was in the course of representation, which we you've already talked about before, with that odd word, detrimental to the client.
ORs 419B.023 has some more definitions, including suspicious physical injury, which is very medically appropriate about burns, scalds, bruising, swelling, fractures, a number of things that would indicate that abuse has occurred. Then, it also includes our good faith immunity, which is again, a qualified immunity for making the report.
The protocol comes under ORS 419B.015, about how the report is made. It is made by an oral report by telephone to certain departments. It includes that there is an offense of making a false report if it is with an intent to influence custody, parenting time, visitation, or a child support decision. Then, it has other intent requirements about making report to certain agencies.
What do we do with all of this, in terms of real-world practice? Well, let's translate that list into our own list.
If, as to anyone under 18, you, as an attorney, become aware of these things, and here they are; a non-accidental physical injury that someone has suffered, which is inconsistent with its explanation, yet doesn't fall within the realm of just normal discipline; or sexual exploitation or abuse; or some substantial impairment to mental or psychological ability to function; or some negligent treatment of a person related to the provision of adequate food, clothing, shelter, and medical care; or some exposure to a substantial risk of harm to the child's health or welfare, including exposure to a controlled substance.
Then, two, you must immediately call local police department, or county sheriff, or county juvenile department, or state police, or Department of Human Services. And, you must orally report, one, what you observed; two, the identity of who committed the act; three, the name and address of the child who was abused; four, the name and address of the child's parents or personal responsible for them; five, the child's age; six, the nature and extent of the abuse; seven, any knowledge of previous abuse; eight, the explanation given for what happened; and nine, any other helpful information.
Unless, one, you learned of the information through a report that had already been made; or two, you knew that the information was already known by law enforcement or by DHS; three, you had been appointed as a guardian ad litem for a parent in a termination of parental rights proceeding, and you learned the information through privileged communications; or four, you learn the information while representing a client, not the child, necessarily, and disclosure of the information would be detrimental to the client.
There, those are the protocols that require that you go through a checkoff list of not just what you know, but why you know it, and what you were already aware of, and planning on doing with it, and what some effects of your next set of actions might be.
With our next section, let's take a look at our statute's lineage and its legacy. We go back to before 1993, to a case called State versus Suttles, from Oregon's Supreme Court in 1979. The citation is in your materials, in which the Supreme Court examined the historical underpinnings to our unique statutory scheme.
It noted that the legislature had enacted legislation dealing with investigations of injuries. Under our criminal code, an injury was defined simply as physical injury to a child, caused by blows, beatings, physical violence, or abuse.
The court observed that certain persons were required to report those types of injuries to the coroner or the medical investigator whenever there was some suspicion of the circumstances. The Suttles court noted that those responsible for reporting the injuries were superintendents, managers, physicians, nurses, any practitioner of the healing arts.
Of course, there was testimony on the bill, and the idea was it was to aid law enforcement agencies in apprehending law breakers. There was no mention of any impact on privilege immunity, doctor-patient, lawyer-client, at all. The Suttles court noted later that the statute had been amended to include physicians, and to include the physician-patient privilege as a ground for excluding evidence of the injuries.
The Suttles court noted again, an amendment in the '70s, that had a new definition of abuse, which was much broader, including now neglect, and malnutrition, and physical injury, and diseases revealed by an examination.
Now, the reports were to go to a law enforcement agency, rather than a medical investigator, and now, reporters were not just health professionals, but a number of different categories of citizen, dentists, and schoolteachers, and school nurses, and all peace officers.
The amendments, apparently, served a dual purpose now, aiding, and apprehending, and prosecuting lawbreakers, as original, and involving social agencies in problem situation, so as to protect the child, and counsel the parents.
The Suttles court discovered the intended meaning of these changes in a written statement that said, "The sole purpose of a child abuse reporting law is the early detection of child abuse, so that protection may be provided to the child. Sometimes, parents are prosecuted, and child is removed from the home. Whenever possible, child is allowed to remain in the home, and the abusive situation resolved through social services."
Now, Suttles issued in 1979, and since then, the statute underwent a massive overhaul. In 1993, it reached its current form, which expanded every definition, expanded every obligation, created new departments. A registry, of course, now included attorneys as mandatory reporters, and made other significant changes.
What it referred to, not only was a voluminous legislative history, but that the addition of attorneys as a category, changed the policy explanation.
Now, the policy was this, "The Legislative Assembly finds that for the purpose of facilitating the use of protective social services to prevent further abuse, safeguard, and enhance the welfare of abused children, and preserve family life when consistent with the protection of a child, it is necessary and in the public interest to require mandatory reports and investigations."
All of our states have moved over the last 60 years from that narrow and rather hard-nosed focus on simply apprehending lawbreakers, to this much broader and much more idealistic goal of preserving family life.
A particular interest in our statute is that, of a half century of changes, it still does not concern itself with certain factual circumstances that actually would affect both abilities, the ability to append lawbreakers, and the ability to protect family life.
It is strange that these following things do not seem to matter, in terms of expanding, limiting, or refashioning the requirement to report.
One is, where? Where the abuse occurred, its physical or geographical location appears to be insignificant to the reporting requirement.
A second is when? When the abuse occurred. There is just no attention devoted to the remoteness in time of the abuse, or whether any applicable statute of limitations may have passed or not.
A third is why? Why the abuse occurred. The reporter is not required to also be an investigator to figure out who the suspect is or fashion explanation for what has happened.
Finally, who is apparently unnecessary, who the suspected abuser, himself, or herself, actually is, their identity, their position, their relationship to others involved, or their social status is inconsequential to the reporting statute.
Now, this last factual concern is different in Oregon than some other states, such for example, as Michigan, where the statute mandating reporting of child abuse requires reporting only if the perpetrator is the parent, legal guardian, teacher, teacher's aide, clergymen, or other person responsible for the child's health or welfare.
There are cases in other states that have sharp comparisons with the Oregon rule. In Iowa, there is a case in your materials about anyone making a report that doesn't need to contain all the necessary information. In Texas, there is a case about immunity from liability, including attorneys and parties, as to who might be protected, being far broader than the Oregon statute, and swirling around factors such as alliances and loyalties to the abused child.
In Montana, the requirement of reasonable cause was found not to apply only to police officers, but to all professionals. The threshold of what would trigger needing to make a report, seemed to vary from low or high, depending on who was making the report.
In Oklahoma, an attorney who suspects that a child is being abused in a paternity proceeding is required to report, so they are aware the suspected abuse is occurring, has a more specific requirement than it does in Oregon.
Another observation in the Oregon model is that the immunity granted to the good faith reporter is immunity from, "Liability," not immunity from "Suit." The distinction is important. Nothing in our statute actively prevents a person from suing the reporter, including a reporting attorney for making a disclosure, and nothing in our statute prevents the plaintiff from then engaging in discovery to determine just what was disclosed, and how, whether the reporting attorney was within, or without the statutory protections, and how any immunity might or might not apply.
All our statute does is restrict the attorney's ultimate liability once it becomes adjudicated, that the immunity actually did apply. As with all grants of immunity, the burden of applying and enjoying the benefit of immunity, is on the attorney, as the one asserting the benefit.
Finally, while it is true that our statute grants immunity, qualified as it is, that determination remains a factual matter that has to be proven. It is an open question, as to whether the common law presumption that the attorney can be presumed to have acted in good faith is there, and, in fact, whether that presumption can be shifted from the plaintiff to the defendant. Oregon has not weighed in on that presumption.
As we go back to our general attention generating principles, that strangers and bystanders owe no legal duty to warn of danger, or prevent injury to another. Yet, the vulnerable persons, such as children, need protection from harm, by and against those in positions of power and influence, we examine the obligations in light of achieving those shifting public policy goals that have been identified by the legislature, and the unique role the attorneys play in protecting laypersons and children.
Let's shift for a moment to the parallel world of reporting obligations as to elder abuse.
Any attorney who works with elderly clients, or works with clients, who, though themselves are not elderly, have legal issues directly regarding an elderly relative or family member, will eventually confront some risk of encountering a suspected, or very real elder abuse situation.
Among the concerns that are then raised, are questions about, A, what really constitutes true abuse as contrasted with benign neglect, inattention, or plain old garden variety incivility; B, if, when, and how the situation should be reported if abuse is present; and, C, if, when, and how any confirmation is required before reporting anything to anyone.
In other words, the various obligations imposed by those professional responsibility rules, ethical guidelines, client confidentiality rules that all come into play, which might constrain, or embolden, or obligate a reporter, as an attorney, as opposed to simply being a concerned citizen or neighbor.
State statute and published case law, in this particular area, is not entirely exhaustive of the answers. Comprehensive analysis requires that we consider the general legal principles, as well.
Statistics help, according to the U. S. Department of Health and Services, this is a broad category, it is rapidly expanded in scope. It is an area of immense social and political concern, at least over the last decade.
Elder abuse includes physical abuse, of course, sexual abuse, neglect, exploitation, emotional abuse, abandonment, and even self-neglect, the failure of a person to perform essential self-care tasks that might threaten their own health or safety.
Each state defines elder abuse, according to unique statutes and regulations, definitions vary, legislatures have been guided by the generalized belief that older individuals, something like children, are in need of protection and assistance, but may have different physical and cognitive frailties, may have different vulnerabilities, are different at risk for abuse, and unable to report in different ways than children are. Sociological and psychological researches and studies have to come up with definitions to describe that type of problem.
As a sociodemographic term, the phenomenon is divided into two fairly distinct patterns, domestic elder abuse, referring into the type of mistreatment committed by someone with whom the elder has a special relationship. For example, a spouse, a sibling, a child, a friend, or a caregiver.
Institutional abuse is distinct, referring to types of mistreatment occurring in residential facilities, such as nursing homes, or assisted living facilities. There, the abuse is usually perpetrated by someone with a legal or a contractual obligation to provide care or protection.
Just as with child abuse reporting, we highlight the same social tensions, the subject of the reporting requirement, the elderly person, the object of the reporting requirements, the attorney, and again, the mechanics, the reporting, itself. Again, those tensions are informed by moral and communal goals that we have set for ourselves.
Should we require all persons, everyone to report the abuse of elders? Should it just be someone involved in those institutions, or in domestic life with the elder? If the latter is appropriate, the category that it would be concerned with would be those who have an integral component of their work in dealing with direct contact with elders.
Ethical values, of course, very wildly in different cultures, and one challenge is to respect the cultural norms that might shape certain behaviors we have as to elders.
The basic goals of ethics related to elder abuse, of course, are always to prevent unnecessary suffering, to maintain quality of life, but ethical dilemmas arise with elders, because there's often a conflict of values between individuals, as to what they think is appropriate with aging, and what can be identified and explored as to the nature of the aging process.
Attorneys need to examine their own views of family responsibility, their own attitudes towards aging, their own guiding principles with regard to what is healthy and appropriate for older people, the promotion of autonomy, the usage of least restrictive approaches in working with others.
These things indicate the ability of a person to make a free and informed decision in a vastly different way than a child has. Pressure or coercion on an elder are different than pressure or coercion on a child. Delegating autonomy and assessing autonomy, the fundamental consideration there, is decision making capacity, something elders have that children don't, and it involves what is being considered, as well as appreciating the consequences of a decision.
Decisions should not be made under duress. The person should be able to communicate the decision. There should be consistency, rationality. There should be the absence of influence, cultural issues should be taken into account, and all of this is done on a sliding scale.
For example, some influencing factors such as pain, depression, psychiatric illness, or medication, can change capabilities of decisions, and frailty doesn't necessarily imply that mental frailty is the same as physical frailty.
All of this swirls around the idea of paternalism, that term for limiting the freedom of another person, usually against their will, with the justification that such interference is at least preventing harm. Paternalism carries with it the danger of intrusive beneficence, the idea that, "My values are better than yours," that type of thinking. Paternalisms may be weak or strong, but communal justice includes upholding certain types of paternalism, a fair distribution of benefits and justice in attorney-client relationships.
Again, melted in there, is that idea of confidentiality, and privilege, and mandatory reporting involves both problems. Not allowing autonomy is an injustice, but mandatory reporting forms a database for decisions with regard to both appropriate, and inappropriate distribution of benefits of resources.
The duty to report suspected elder abuse creates ethical dilemmas there for legal professionals. Many older individuals are healthy, active members of the community, capable of making their own decisions about their own lives, including whether they even want professional intervention, when, and if they are being harmed.
Concerns about breach of confidentiality and trust arise whenever any report is made, but now, with older clients, the client may decline to accept or stop using services if a report about abuse is made. Weighing the victim's rights to make personal decisions against the potential risk of harm or death, is a very difficult case in the case of elder abuse.
Many elder abusers use course of tactics to get and maintain power and control over victims. They set rules for the relationship. For example, when dinner will be served, who can come and go from inside the home, they deny older victims the right to make decisions in their own lives. Well-meaning professionals who see elders and elder abuse cases, may make decisions for victims with capacity, because they believe there may be a dementia phenomena, or because the discomfort anxiety about choices may arise. They may believe that an older victim is unable to make choices at all and needs assistance.
The risk of harm is heightened with advanced age and advanced health status. Professionals might assess that an older victim remains in a current situation and might be harmed if remaining there. Moral and ethical obligations to step in, not just to make decisions, but to change conditions for older victims may be triggered.
One guiding principle in elder abuse cases is least restrictive alternatives. Many will disagree as to what that is, what is needed to achieve protection and safety. An adult protective service worker may have some ideas about who should remain in the home, and a healthcare provider may have other ideas. The attorney may have a different formative idea of a protective stance, because their involvement includes advice, and legal responsibility, and liability, where healthcare providers have no concern.
People live longer, the result is to create a burden on relations on families, particularly the middle-aged children, expected to take care of the elderly parent. Care creates stress. Stress can create abuse. The abuse can come in a variety of forms in which it isn't just family members perpetrating it. Outsiders can pick up on cues, scams, resistance. They may be able to use and abuse services offered by communities, in order to take advantage of elders.
All of these ethical principles of autonomy and beneficence, create a network of values, in terms of dealing with responsibility, including legal responsibility, about reporting on that abuse. Questions arise. Can a client ever be denied their own personal autonomy, in order to enhance their own wellbeing? What the elder wants is important, but is it the only factor in resolving the problem? A client's right to make their own decisions, may conflict with legitimate social disagreement over how control is defined. How do we both require consent to the client before rendering services, while at the same time, prevent abuse, even without a client's consent?
All of these require wise public policies. They all require the identification of signs of abuse, whether it is looking at the actual direct signs like bruises, and broken bones, and abrasions, or much more indirect signs, the unexplained withdrawal from activities, changes in alertness, different behaviors, or strained relationships.
Obviously, it is of highest importance to be sensitive and acutely alert to how elders normally look, talk, interact, and emote, using body language, using circumstantial indicators, trying to identify whether suffering is being done in silence.
Noticing changes in personality or behavior can be explained medically, but they might not have much to do with the legal relationship with the attorney. Yet, in terms of reporting, the codified law still imposes the obligation. As we look at the case law on elder abuse reporting, some topics appear below the surface of the statute.
One thing revealed is how messy the elements of common law courts become entangled in utilizing elder abuse statutes. Another is how picky courts are about the specific wording used in the statutes, when applying them to real-world circumstances.
Oregon statute follows the states like Mississippi, Montana, and Ohio, where attorneys, all together, are reporters, not just certain types of attorneys, but also, not all persons. With Oregon appellate cases on elder abuse as a topic, we can look for useful propositions within those cases.
Let's remind ourselves of our statute, itself, or S124.050, is the reporting of abuse statute. In your materials, there should be citations to the statute, including the definition of abuse, which includes physical injury, neglect, abandonment, willful infliction of pain, any act that constitutes a certain crime against an elder, verbal abuse, financial exploitation, sexual abuse, involuntary seclusion of an elderly person, in order to discipline them, and a wrongful use of a physical, or chemical restraint of an elder.
Our statute also, of course, includes the duty to report for officials, attorneys being identified as an official under 124.060, defining an elder as any person 65 years of age or older, and then provides the method of reporting to law enforcement agencies, very similar to how it is with child abuse reporting. Under ORS124.065, it describes those methods. 124.075, of course, identifies that qualified immunity that we had spoken about previously. 124.095 mentions spiritual treatment, not being abused in a sense that cadence of certain cultural norms being appreciated or recognized, that if they come within a certain definition, that they would not then impinge on an abuse definition.
Then, finally, our reporting statutes close with a civil action for abuse, under 124.100, and then the criminal penalties under 124.990. Both again, including the Suttles court policy shift in the late '90s, including that the actions for abuse have a much broader impact than simply appending law breaks, but they also include this protection and preservation of social life, not just, of course, between children and parent, but between elder and relative, and elder and society, as well, too.
With five different cases, I want to mention first, State versus Baker Croft, a 2010 Supreme Court case from Oregon, that identified the applicable statutory elements of elder abuse as a crime. It talked about those elements as establishing a violation, what withholding physical care actually entailed.
The main message from the Baker-Krofft case is that the common law theme in premises liability cases of creating or maintaining a dangerous condition, wasn't sufficient to be the equivalent of withholding, which had a more specific action to it, so the pickiness of how the statutory words are interpreted, and then put into play, comes true in the Baker-Krofft case.
In State versus Schwartz, a case that I have also provided citation for you in the outline materials, 2009 from the Oregon Appellate Courts. This is where defendant brought her husband to the courthouse when she appeared for sentencing, and then she simply left him at the courthouse when she became taken into custody.
A decision as to whether she had deserted the husband with an intent to abandon him, in order to be prosecuted for elder abuse, turned into a discussion about what the public responsibility was, as to whether she was even allowed to assist with others to arrange for her care, or whether she's prevented from arranging for care. That specter of public responsibility overrode the pickiness of the statute.
There is a third criminal case, State versus Nolan, doesn't really help in any sense, simply discussing physical injury, and the legal duty to provide care for the elder, but again, expanding some idea of public responsibility beyond the narrow constraints of what the statute said.
There are four civil cases, the most recent one from 2015, a case called Gibson versus Bankofier. There, the court considered the term wrongful knowing to have a well understood meaning, and it looked towards the tort of IIED, and the II intentional interference with contractual relations for context.
Considering that to prove that type of tort, a plaintiff must show evidence beyond the fact of an interference, and with elder abuse, that there must be, similarly, a plaintiff must show, not just that a defendant took her appropriated money or property from an elder, but also that they did so in pursuit of an improper motive or by improper means. In other words, they tangled up the common law of tort with the statutory interpretation.
I provided you the case of Hoffer versus Wiggins, wrongful retention of money by a broker that took advantage of a vulnerable person. The allegation is that the broker simply refused to return the money, was sufficient to constitute the tort.
In Church versus Woods, a 2003 case, where property was taken by a grand-niece from a grand-uncle, diminished his interest in an estate, turned into establishing a statutory claim for financial abuse of an elder.
Finally, White versus McCabe, a 1999 case, where the court held that it was wrongful, in the context of establishing a statutory claim for financial abuse of an elder, that wrongful had a dual meaning. Focusing alternatively, on the defendant's motives, or the means, by which property was taken.
Questions, of course, remain with elder abuse, as they do with child abuse reporting, especially with more uncharted topics, such as future, or perspective acts of elder abuse. Recall that there are statutes that identify abuse, to include threatened harm. Even without mandatory elder abuse reporting statutes, reporting future acts of abuse is situationally, and ethically complicated for the attorney.
For example, would an attorney be required to report suspected future elder abuse if the attorney that their client is a batterer, who has been abusive to elders in the past, or has been abusive to the victim, in front of an elderly person, and then learns that the victim of the violence remains with, or returns to the abusive partner?
What to do there is another example, does the act of elder simply witnessing violence between others in their environment, fall within the embrace of harm, or threatened harm?
The answer certainly seems clear, when it is domestic violence between spouses, but violence in the elder's home, it becomes much cloudier when it is not family related, or directed towards the elder, themselves.
All of these concerns circle us back to those three tensions about the subject, the object, and the mechanics of the reporting. They make us pause, when we think about those ethical commands in our roles, as lawyers, where we have the conflict of professional obligations and personal interests, where we have this competition between the challenge of legal practice, the life of integrity, and the tension of finding where those demands prevent injury to a client, as opposed to preventing injury to a person or a citizen.
We see that the ethics of mandatory reporting highlights compromises, all across the board. Compromises in which we have to be very attentive to the specific words of a statute, the intent of a legislature, the immunity granted us, and the moral obligations imposed on us, in finding out, ferreting out, and deciphering just who is affected maybe by the suspicion of abuse, elder, or child.
I hope that in the time we have had, many of these things have been illuminated for you and that you have been provided some information and resources to determine for yourself where these things would fit into your own practice.
I hope you enjoyed this seminar, and again, look the outline for the references to the cases and statutes. Thank you.