Metropolitan News-Enterprise


Wednesday, February 23, 2005


Page 1


Elder Abuse Law Imposes Strict Liability, C.A. Rules


By a MetNews Staff Writer


A California law making it a crime for certain designated persons to fail to report abuse of an elderly or dependent adult imposes strict liability on any mandatory reporter who knows of the abuse and fails to report it, the Fourth District Court of Appeal has ruled.

Div. Two Friday affirmed the conviction of Deborah Davis on a misdemeanor charge of failure to report the abuse of a dependent adult with a history of psychosis being cared for at Vista Pacifica Center, a secure long-term care facility in Riverside County where Davis was the administrator at the time of the incident.

The state Attorney General’s Bureau of Medi-Cal Fraud & Elder Abuse charged Davis after an investigation, initiated after a tip from a former employee. The bureau concluded that Davis was ultimately responsible for the decision not to report the incident in which an employee, who was fired after the incident and later successfully prosecuted by the bureau, choked a resident of the facility.

Riverside Superior Court Judge Robert J. McIntyre found Davis guilty after a bench trial, finding that she “knew or should have known” that abuse occurred. He found that the victim did not pose a threat to the employee and that the employee’s acts constituted a criminal assault that employees, and the administrator in particular, had a duty to report.

Davis was sentenced to three years’ probation, the conditions of which included 500 hours of community service. The Riverside Superior Court Appellate Division—on request of both parties—certified the case for transfer without decision to the Court of Appeal, which agreed to hear it.

Presiding Justice Manuel Ramirez, writing for the Court of Appeal, rejected the contention that under the Elder Abuse and Dependent Adult Civil Protection Act, Davis was entitled to conclude—based on her professional judgment—that the incident did not require reporting since there was no physical or psychological injury to the victim.

Ramirez cited the testimony of several staff members who explained the incident and said they believed that it constituted abuse and should have been reported.

“A chokehold can stop oxygen to the brain, possibly resulting in fainting, brain swelling, stroke, spinal cord damage, or death,” the presiding justice wrote. “It can also damage the trachea.”

The jurist rejected the contention that the mandatory reporting requirement only applies to “substantiated” claims of abuse or those in which the attacker acted with “willful intent” to cause the victim harm.

Ramirez agreed with the prosecution “that the statutes provide for a purely objective standard, i.e., that a report is required if a reasonable person in a like position would have suspected abuse.” A mandatory reporter, the presiding justice said, cannot  substitute his or her subjective judgment of what constitutes abuse for objective observation.

“Rather, if the circumstances give rise to an objective basis for suspecting that abuse occurred, reporting is mandatory,” Ramirez wrote. “The duty to investigate and the authority to determine whether abuse actually did occur are vested in outside agencies.”

The case is People v. Davis, 05 S.O.S. 1001.


Copyright 2005, Metropolitan News Company