Oregon State Bar Bulletin — FEBRUARY/MARCH 2005

A Senior Duty
Why not mandatory reporting for elder abuse?
By Richard J. Vangelisti

In just six years, the baby boomers born between 1946 and 1964 will begin turning 65. The population age 65 and older is projected to rapidly surge from 34.6 million in 1999 to 82 million in 2050 ó a 137 percent increase.1

The incidence and severity of elder abuse is also expected to rise. The United States Senate Special Committee on Aging has estimated that there may be as many as 5 million victims of elder abuse every year.2 In addition to an increase in the elder population, the increase of elders in long-term care is expected to contribute to a rise in overall abuse.3

These demographic trends give rise to the question whether mandatory reporting of elder abuse for lawyers would be an appropriate step towards protecting elders. Lawyers in Oregon are familiar with their mandatory reporting requirement for child abuse, and a similar requirement for elder abuse may make sense.

A lawyer has a duty to report child abuse when he or she has "reasonable cause to believe that any child with whom the (lawyer) comes in contact has suffered abuse or that any person with whom the (lawyer) comes in contact has abused a child . . . ." ORS 419B.010(1). The definition of "abuse" includes physical and mental injury to a child as well as the "failure to provide adequate food, clothing, shelter or medical care that is likely to endanger the health or welfare of the child." ORS 419B.005(1)(a).

Lawyers have a duty to report child abuse 24 hours per day, 7 days a week. Lawyers, however, are not required to report information of child abuse if it would be covered by the lawyer-client privilege or if it is based on information communicated to the lawyer "in the course of representing a client, if disclosure of the information would be detrimental to the client." ORS 419B.010(2).

Elders are also protected by a mandatory reporting requirement. "Any public or private official having reasonable cause to believe that any person 65 years of age or older with whom the official comes in contact, while acting in an official capacity, has suffered abuse, or that any person with whom the official comes in contact while acting in an official capacity has abused a person 65 years of age or older shall report . . . ." ORS 124.060. With respect to elders, the definition of "abuse" includes physical injury as well as "(n)eglect which leads to physical harm through withholding of services necessary to maintain health and well-being." ORS 124.050(1).

The definition of "public or private official" does not specifically include lawyers. ORS 124.050(5). Except for a lawyer acting in an official capacity for a resident in a long-term care facility (ORS 441.630(6)(h), 441.640) or a lawyer who may otherwise qualify under the definition in ORS 124.050(5), lawyers are generally not required to report elder abuse.

Why should lawyers have a mandatory reporting requirement for child abuse but not elder abuse?

The policy of protecting human welfare applies equally to children and elders. In the child abuse context, the Oregon Legislature has determined that mandatory reporting is necessary to "facilitate() 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 the child by stabilizing the family and improving parental capacity." ORS 419B.007.

Likewise, in the elder abuse context, the Oregon Legislature has determined that mandatory reporting is necessary and in the public interest to "prevent() abuse, safeguard() and enhance(e) the welfare of elderly persons." ORS 124.055.

As recognized by the Oregon Legislature, children and elders are both in need of special protection. Children and elders often share the characteristics of vulnerability and dependency. These characteristics obviously vary for individuals within each group depending on age, health and mental capacity. Age, however, is the best way to delineate children and elders as respective groups that are in need of special protection.

The incidence of abuse varies with age. In Oregon for the year 2003, 48.7 percent of child victims of abuse were under six years of age.4 A child under the age of one is the most likely to be abused of any other child-age group. The burden and stress of the new addition to the family is thought to be a significant factor increasing the incidence of abuse.

After the age of six years old, a child is less likely to be abused as he or she grows older. These findings illustrate that younger children ó those more vulnerable and dependent ó are more likely to be victims of abuse than older children. In effect, as a child becomes older and less vulnerable and dependent, the risk of abuse decreases.

Many elderly people experience the same dynamic in reverse. As they grow older and often become physically or mentally incapacitated, they become more vulnerable and dependent on others for their care. This increased vulnerability and dependency in turn makes them more susceptible to abuse.

As with the arrival of a new child to a family, the "arrival" of a dependent, elderly mother or father also causes stress to the family. This stress in turn can lead to abuse particularly by a person who is saddled with the burden of care giving.

Regardless of the level of vulnerability and dependency, children and elders alike are in need of special protection. A realization that children and elders share characteristics of vulnerability and dependency, however, does not directly answer the question of whether mandatory reporting of elder abuse should be extended to lawyers generally.

Experience supports the Oregon Legislatureís determination that mandatory reporting is necessary to protect children and elders. In 2003, the Oregon Department of Human Services (DHS) reviewed 42,455 reports of suspected child abuse.5 Of those reports, 77 percent were made by mandatory reporters.6 DHS determined that there was reasonable cause to believe that child abuse occurred in 6,510 or 15.3 percent of the 42,455 reported cases.7

Mandatory reporting is also critical in protecting elders. In 2003, excluding the reports of abuse in facilities, DHS reviewed 6,110 community reports of elder abuse.8 (The report does not break out which of the 6,110 reports related to physical abuse vis-à-vis financial abuse.) Of those 6,110 reports, 48.7 percent were made by mandatory reporters. The DHS determined that abuse was substantiated in 2,486 or 40.7 percent of the 6,110 reported cases.9

Statistics are not available to determine the number of lawyers that reported child abuse in 2003, but the DHS records show that mandatory reporters in the "Other Professional" category, which includes lawyers, accounted for 4,504 reports or 10.6 percent of the 42,455 reports of child abuse.10 For elder abuse in the same year, lawyers made only 33 reports or 0.54 percent of the 6,110 reports of elder abuse in the community or non-facility system.11

Although lawyers do not account for a substantial number of the reports of child abuse, they certainly have some effect on whether children are protected from abuse. A mandatory reporting requirement for lawyers to report elder abuse probably would increase the number of reports. This increased reporting ultimately would protect more elders who otherwise may not be protected. Some studies suggest that only 16 percent of elder abuse is ever reported.12

If lawyers were required to report elder abuse of a physical nature, we would not expect a significant increase in burden above the current requirement to report child abuse. The definitions of abuse are sufficiently similar, and lawyers have had mandatory child-abuse reporting training since 2000. The learning curve for mandatory reporting of elder abuse would not be steep.

Our elders deserve as much protection from abuse as children. Extending mandatory reporting of elder abuse to lawyers may be a good step in that direction. In October 2004, Gov. Ted Kulongoskiís Elder Abuse Task Force proposed three ideas for statutory change in 2005 that included enhancing the mandatory reporting law.13 Now is a good time to discuss whether Oregon lawyers generally should be subject to mandatory reporting of elder abuse.

ABOUT THE AUTHORS
Richard Vangelisti is the founder of Northwest Nursing Home Law Center, a branch of Vangelisti Law Offices P.C. He can be reached at (800) 800-1004 or richard@vangelisti.com.

Endnotes

1. Census Bureau Projects Doubling of Nationís Population by 2100, United States Department of Commerce News, U.S. Census Bureau (January 13, 2000).

2. National Center on Elder Abuse, FAQs, www.elderabusecenter.org

3. Protecting Seniors from Abuse and Neglect, U.S. Senate Finance Committee, 107th Congress (Second Session) (2002) (statement of Richard J. Bonnie Chairman, Panel to Review Risk and Prevalence of Elder Abuse and Neglect, National Research Council/National Academy of Science and Schools of Law and Medicine, University of Virginia), www4.nationalacademies.org/ocga/ testimon.nsf/0/ab3987e498e2ef8685256bdc00655fb5?OpenDocument

4. The Status of Children in Oregonís Child Protection System 2003, Department of Human Services Children, Adults, & Families at 7.

5. Id. at 5.

6. Id. at 4.

7. Id. at 5.

8. 2003 Oregon Community Adult Protective Services Statewide Adult Protective Reports (Non-facility), Oregon Department of Human Services (February 13, 2004).

9. Id.

10. Memorandum from Anna Cox, CAF Research for the Oregon Department of Human Services dated December 2, 2004 (available from author).

11. Supra, note 8.

12. Supra, note 2.

13. Gov. Ted Kulongoskiís Elder Abuse Task Force Final Report at 7 (October 2004).

 
© 2005 Richard Vangelisti

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