California Dental Practice Act: 2 Hour Course

Mandated Reporting: Abuse, Violence, Neglect






In 1995, the California Legislature approved a law that was designed to help stop repeated instances of domestic violence and abuse. California law became a model for other bills for many other states. One of the intents of the law was that screening for domestic violence be part of every routine health care contact.    “Mandated reporters" of suspected abuse are part of the California Penal Code Section 11160.

Mandated reporters are individuals in all aspects of health care that are required by law to report any physical condition to a patient that the health care provider knows or reasonably suspects to be caused by another person.
 In dentistry, mandated reporters include:

  • DDS
  • RDH
  • RDHEF
  • RDHAP
  • RDA
  • RDAEF

Types of Abuse

  • Child Abuse & Neglect.
  • Elder Abuse & Neglect.
  • Family Violence.
  • Intimate Partner Violence.

For suspected child abuse or neglect, According to an insightful, online source listed here and cited, by Rady Children’s Hospital of San Diego: http://mandatedreporterca.com/images/pub132.pdf:

[Physical abuse (PC 11165.6) is defined as physical injury inflicted by other than accidental means on a child, or intentionally injuring a child. Child sexual abuse (PC 11165.1) includes sexual assault or sexual exploitation of anyone under the age of 18. Sexual assault includes sex acts with children, intentional masturbation in the presence of children, and child molestation. Sexual exploitation includes preparing, selling, or distributing pornographic materials involving children; performances involving obscene sexual conduct; and child prostitution.

Willful cruelty or unjustified punishment (PC 11165.3) includes inflicting or permitting unjustifiable physical pain or mental suffering, or the endangerment of the child’s person or health. “Mental suffering” in and of itself is not required to be reported; however, it may be reported. Penal Code11166.05 states: “Any mandated reporter who has knowledge of or who reasonably suspects that mental suffering has been inflicted upon a child or that his or her emotional well-being is endangered in any other way may report the known or suspected instance of child abuse or neglect to an agency specified in Section11165.9”. (The specified agencies include any police department, sheriff’s department, county probation department, if designated by the county to receive mandated reports, or the county welfare department.) Unlawful corporal punishment or injury (PC 11165.4), willfully inflicted, resulting in a traumatic condition.

Neglect (PC11165.2) of a child, whether “severe” or “general,” must also be reported if the perpetrator is a person responsible for the child’s welfare. It includes both acts and omissions that harm or threaten to harm the child’s health or welfare. General neglect means the failure of a caregiver of a child to provide adequate food, clothing, shelter, medical care, or supervision, where no physical injury to the child has occurred. Severe neglect means the intentional failure of a caregiver to provide adequate food, clothing, shelter, or medical care where injury has occurred or is likely to occur. Severe neglect also includes those situations of neglect where any person having the care or custody of a child willfully causes or permits the person or health of the child to be placed in a situation such that his or her person or health is endangered.

Parental or Caregiver Red Flags 

Parent lacks understanding of normal child behaviors and development:

  • Has unrealistic expectations of child (e.g., toilet-training of a six-month-old)
  • Is unduly harsh and rigid about childrearing
  • Singles out one child as “bad”, “evil”, or “beyond control”
  • Attributes badness to child or misinterprets child’s normal behavior (e.g., interprets an infant’s crying as evidence that the child hates the parent)
  • Tells you of use of objects (belts, whips, clothes hanger) to discipline the child, or describes the use of inappropriate or extreme consequences (locking child in a closet, withholding meals)

Parent lacks understanding of the parent-child relationship and/or perceives child in a negative light:

  • Is unable to describe positive characteristics of child
  • Berates, humiliates, or belittles child constantly
  • Turns to child to have his/her own needs met
  • Is indifferent to child 

Parenting is impaired by:

  • Depression or other mental illness
  • Substance abuse o Poverty/unemployment
  • Lack of social support
  • Domestic violence
  • Parental history of abuse or inadequate care (Note: Most abused children do not become abusive parents.)

Physical Indicators in the Child Physical Abuse

  • Any injury in an infant, even a small bruise
  • Injuries to the back, buttocks, ears, face (particularly the soft tissues of the cheek), neck, and genitalia
  • Unexplained injuries, or injuries with improbable explanations
  • Bruises or burns that are patterned or have a distinctive outline
  • Broken bones, lacerations or unexplained bruises
  • Burns (cigarette, scalding water, iron)
  • Any injury when there is a delay in seeking appropriate medical care

Sexual Abuse

  • Complaint of painful urination, defecation
  • Difficulty sitting or walking
  • Presence of sexually transmitted infection

Neglect

  • Inorganic failure to thrive (failure to gain weight at the expected rate) or a malnourished child
  • Inappropriate dress for weather
  • Dirty clothes, poor hygiene
  • Unattended medical or dental conditions
  • Developmental delays

Behavioral Indicators in the Child with regard to behavioral indicators, keep in mind that children react differently to being abused, and many abused children do not exhibit behavioral symptoms. The presence of any of the following indicators does not prove that a child is being abused but should serve as a warning signal to look further. While some of these behaviors may occur more with one type of abuse than another, they may overlap.

Child red flags for abuse/neglect include:

  • Anxiety
  • Depression, self-mutilation, suicidal gestures/attempts
  • Low self-esteem
  • Social maladjustment: Delinquent behavior (such as running away from home), use of alcohol or other drugs, academic/behavioral problems in school

Other significant behavioral changes

Physical Abuse

  • Hostile, aggressive or verbally abusive towards others
  • Fearful or withdrawn behavior
  • Destructiveness (breaks windows, sets fires, etc.)
  • Out-of-control behavior/poor anger management
  • Wariness of adults
  • Discomfort when other children cry
  • Fear of parents/caretakers or of going

Sexual Abuse

The single most important indicator of sexual abuse is disclosure by the child. However, the nature of sexual abuse, the guilt and shame of the child victim, and the possible involvement of parents, stepparents, friends or others in a caretaker role, make it extremely difficult for children to report sexual abuse. It is not unusual for children to delay weeks, months, or even years before disclosing sexual abuse. In addition, sometimes a child who seeks help is accused of making up stories. Many people may not believe the victim because the abuser is well-liked and others cannot believe he or she could be capable of sexual abuse.

When the matter does come to the attention of authorities, the child may give in to pressure from parents or caretakers and deny that sexual abuse has occurred. The child may feel guilty about "turning in" the abuser or breaking up the family, and recant or change his or her story. Although this pattern of denial is typical, it may result in skepticism when a child discloses sexual abuse. The sad reality of sexual abuse is that without third-party reporting, the child often remains trapped in secrecy by shame, fear, and threats by the abuser.

It is important to recognize that children rarely fabricate these accounts; they should be taken seriously. In addition, mandated reporters must stay alert and responsive to children’s behaviors that are associated with sexual abuse. Although children frequently find it difficult to report they are being abused, they often develop coping mechanisms and behaviors which bring them to the attention of others.

Red flag behaviors indicative of possible sexual abuse include:

  • Sexualized behavior and/or knowledge beyond developmental expectations
  • Fearful or withdrawn behavior
  • Changes in eating, sleeping or toileting (e.g., bedwetting, fecal soiling)
  • Extreme compliance or defiance
  • Emotional and/or behavioral problems

Neglect

Possible symptoms of child neglect are often difficult to identify as they are less defined than those for physical or sexual abuse. Observation, home visits, and/or the child’s description of his or her living situation may be necessary to identify sufficient circumstances for reporting suspicions of neglect. It is important to remember, however, that these indicators should be evaluated in the context of the family’s culture, values and economic situation.

Behavioral indicators of possible neglect include:

  • Clingy or indiscriminate attachment
  • Socially withdrawn
  • Internalized emotional symptoms such as anxiety and depression

Emotional Abuse

Although emotional abuse is not as clearly defined in the law as other forms of maltreatment, it is generally recognized as a pattern of behavior by a caretaker that impairs a child's emotional and/or psychological development. This may include constant criticism, threats, rejection, intimidation or humiliation, acts intended to produce fear or guilt, withholding of love and support, and isolation. Witnessing of domestic violence also falls within the scope of emotional abuse. Reasonable suspicion of emotional abuse that must be reported often results from verbal disclosures or direct observation and involves any person willfully causing or permitting any child to suffer unjustifiable physical pain or mental suffering, or endangering the child’s person or health (Penal Code 11165.3).

In the absence of a verbal disclosure or direct observation, suspicions of abuse may be reported when behavioral indicators alert the professional to suspect emotional abuse. Emotional and behavioral problems, in varying degrees, are common among children whose parents abuse them emotionally. Attention deficits, school difficulties, and poor social skills are among the most common. Penal Code 11166.05 provides that, “Any mandated reporter who has knowledge of or who reasonably suspects that a child is suffering serious emotional damage or is at a substantial risk of suffering serious emotional damage, evidenced by states of being or behavior, including, but not limited to, severe anxiety, depression, withdrawal, or untoward aggressive behavior towards self or others, may make a report…”

These emotional and behavioral patterns may, of course, be due to other causes, but the suspicion of abuse should not be dismissed. Emotional abuse is often difficult to prove; cumulative documentation by a child protection agency may be necessary for effective intervention.

Finally, emotional abuse is most often reported along with concerns of other types of abuse; any child who is being physically abused, sexually abused, or neglected is also being emotionally abused.] -cited online source, Rady Children’s Hospital of San Diego: http://mandatedreporterca.com/images/pub132.pdf.

Any signs of abuse or neglected must be reported!

For suspected elderly abuse or neglect, The following online document is listed and cited: https://oag.ca.gov/sites/all/files/agweb/pdfs/bmfea/yld_text.pdf

Abuse of an elder or dependent adult” is defined as the following:

  • Physical abuse (includes sexual abuse);
  • Neglect;
  • Financial abuse; Abandonment;
  • Isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering;
  • Deprivation by a custodian of goods or services that are necessary to avoid physical harm or mental suffering. (Welfare and Institutions Code Section 15610.07)

PHYSICAL ABUSE “Physical Abuse” means any of the following:

  • Assault;
  • Battery;
  • Assault with a deadly weapon or force likely to produce great bodily injury;
  • Unreasonable physical constraint, or continual deprivation of food or water;
  • Sexual assault, that means any of the following: - Sexual battery; - Rape; - Rape in concert; - Spousal rape; - Incest; - Sodomy; - Oral copulation; - Penetration of a genital or anal opening by a foreign object.
  • Use of a physical or chemical restraint or psychotropic medication under any of the following conditions: - For punishment. - For a period beyond that for which the medication was ordered pursuant to instructions of a physician and surgeon licensed in the State of California, who is providing medical care to the elder or dependent adult at the time the instructions are given. - For any purpose not authorized by the physician and surgeon. (Welfare and Institutions Code Section 15610.63)

Possible Indicators of Physical Abuse: The following descriptions are not necessarily proof of abuse, but they may be clues that a problem exists. Signs that may indicate someone has been a victim of abuse may include:

  • Unusual or recurring scratches, bruises, skin tears, welts
  • Bilateral bruising (bruises on opposite sides of the body)“Wrap around” bruises
  • Bruises around the breasts or genital area Infections around the genital area
  • Injuries caused by biting, cutting, pinching or twisting of limbs
  • Burns (may be caused by hot water)
  • Fractures or sprains
  • Torn, stained or bloody underclothing
  • Any untreated medical condition
  • Signs of excessive drugging
  • Injuries that are incompatible with explanations
  • Intense fear reaction to people in general, or certain individuals in particular.

Descriptions are not necessarily proof of abuse, BUT they maybe clues that a problem exists.

NEGLECT “Neglect” means either of the following:

  • The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.
  • The negligent failure of the person themselves to exercise that degree of care that a reasonable person in a like position would exercise.

Neglect includes, but is not limited to, all of the following:

  • Failure to assist in personal hygiene, or in the provision of food, clothing or shelter.
  • Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
  • Failure to protect from health and safety hazards.
  • Failure to prevent malnutrition or dehydration.
  • Failure of a person to provide the needs specified in paragraphs 1-4, inclusive, for themselves due to ignorance, illiteracy, incompetence, mental limitation, substance abuse or poor health. (Welfare and Institutions Code Section 15610.57)

Possible Indicators of Neglect The following descriptions are not necessarily proof of neglect, but they may be clues that a problem exists. Some signs that indicate a resident has been a victim of neglect may include:

  • Skin disorders or untreated rashes
  • Unkempt, dirty, matted or uncombed hair, unshaven
  • Neglected bedsores
  • Signs of dehydration, malnutrition or sudden weight loss
  • Soiled bedding or clothing
  • Inadequate clothing
  • Hunger
  • Absence of, or failure to give prescribed medication
  • Lack of necessary dentures, hearing aids or eyeglasses
  • Untreated or unattended medical conditions

ABANDONMENT “Abandonment” means: The desertion or willful forsaking of an elder or a dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody. (Welfare and Institutions Code Section 15610.05)

FINANCIAL ABUSE “Financial Abuse” occurs when a person or entity does any of the following:

  • Takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.
  • Assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.

    (b) A person or entity shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates or retains possession of property in bad faith.

    1. A person or entity shall be deemed to have acted in bad faith if the person or entity knew or should have known that the elder or dependent adult had the right to have the property transferred or made readily available to the elder or dependent adult or to his or her representative.

    2. For purposes of this section, a person or entity should have known of a right specified in paragraph (1) if, on the basis of the information received by the person or entity or the person or entity’s authorized third party, or both, it is obvious to a reasonable person that the elder or dependent adult has a right specified in paragraph (1). (c) For purposes of this section, “representative” means a person or entity that is either of the following: 1. A conservator, trustee or other representative of the estate of an elder or dependent adult. 2. An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney. (Welfare and Institutions Code Section 15610.30)

Possible Indicators of Financial Abuse The following descriptions are not necessarily proof of financial abuse, but they may be clues that a problem exists. Some signs that indicate a resident has been a victim of financial abuse may include:

  • Disappearance of papers, checkbooks, legal documents
  • Staff assisting residents with credit card purchases, ATM withdrawals
  • Lack of amenities: appropriate clothing, grooming items, etc.
  • Bills unpaid despite availability of adequate financial resources
  • Provision of services that are not necessary or requested
  • Unusual activity in bank accounts, such as withdrawals from automatic teller machines when the person cannot get to the bank
  • Denial of necessary and/or needed services by the person controlling the elder or dependent adult’s resources
  • Use of “representative payee” under suspicious circumstances
  • Use of power of attorney or conservatorship when not indicated by certain circumstances

ISOLATION

“Isolation” means any of the following:

  • Acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls.
  • Telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned persons.
  • False imprisonment, as defined in Section 236 of the Penal Code.
  • Physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors.

    A. The acts set forth in subdivision (a) shall be subject to a rebuttable presumption that they do not constitute isolation if they are performed pursuant to the instructions of a physician and surgeon licensed to practice medicine in the state, who is caring for the elder or dependent adult at the time the instructions are given, and who gives the instructions as part of his or her medical care.   
           
    B. The acts set forth in subdivision (a) shall not constitute isolation if they are performed in response to a reasonably perceived threat of danger to property or physical safety. (Welfare and Institutions Code Section 15610.43)

Examples of Isolation: Ø A nursing assistant tells a resident’s family member that the resident does not wish to speak to them. You are aware, however, that the resident does indeed want to speak to his or her family and has never expressed the desire not to talk with them. Ø A nursing assistant restrains a resident in bed and tells the resident’s family that the resident is too ill to have visitors. Possible Indicators of Isolation The following descriptions are not necessarily proof of isolation, but they may be clues that a problem exists. Some signs that indicate a resident has been a victim of isolation may include:

  • Resident is hesitant to speak freely
  • Resident is withdrawn, timid and perhaps overly fearful or untrusting

“Abduction” means the removal from this state and the restraint from returning to this state, of any elder or dependent adult who does not have the capacity to consent to the removal from this state and restraint from returning to this state, as well as the removal from this state or the restraint from returning to this state, of any conservatee without the consent of the conservator or the court. (Welfare and Institutions Code Section 15610.06) “Goods and Services Necessary to Avoid Physical Harm or Mental Suffering” include but are not limited to all of the following:

  • The provision of medical care for physical and mental health needs
  • Assistance in personal hygiene.
  • Adequate clothing
  • Adequately heated and ventilated shelter
  • Protection from health and safety hazards. Protection from malnutrition, under those circumstances where the results include, but are not limited to, malnutrition and deprivation of necessities or physical punishment.
  • Transportation and assistance necessary to secure any of the needs set forth above.

(Welfare and Institutions Code Section 15610.35) “Mental Suffering” means fear, agitation, confusion, severe depression or other forms of serious emotional distress that is brought about by threats, harassment or other forms of intimidating behavior. (Welfare and Institutions Code Section 15610.53) “Resident-to-Resident Abuse” means when one resident in a facility abuses another resident in the facility in any way.] -cited from https://oag.ca.gov/sites/all/files/agweb/pdfs/bmfea/yld_text.pdf

The abuse can be physical, mental or financial and legally must be reported!

Office Protocols


An important component of office protocol is to establish office procedures.  Mandated reporter responsibilities are a team effort. Collaboration and sharing will assist in gathering as many observations and as much data as possible. One mandated reporter can make a report on behalf of the team.
 
Employers are required to discuss with each mandated reporter employee the fact that they are mandated reporters. Employers should place signed acknowledgment documents  in  the  employee’s  personnel  file  and  they  are  strongly  encouraged  to provide training to these employees regarding their mandated reporter status

Clinical Protocol

The clinical protocol to gather "objective" observations begins when the patient enters the door of your practice. The protocol should include:

  • General physical assessment.
  • Behavior assessment.
  • Patient histories.
  • Oral examination.
  • Documentation.
  • Consultation.
  • Determination if "action" is necessary.

Legal Issues & Reporting Suspected Abuse

Confidentiality


The mandated reporter’s identity is kept confidential within the state offices involved in the reporting process. If a case should go to court, the mandated reporter’s identity would be made known to the court through your written report and pertinent documentation, or if you were required to testify. Most cases do not go to court.

Immunity


A mandated reporter is immune from civil or criminal liability when filing a report, whether or not it turns out that abuse has occurred. However, this does not mean that the mandated reporter cannot be sued. If sued, the mandated reporter may incur legal fees which can be reimbursed by the state up to $50,000.

Patient/Provider Privilege


In the case of mandated reporting for abuse and neglect, the health care provider/patient privilege does NOT apply. If a child, parent, caregiver, elder, dependent  adult,  or  DV  victim  confides  in  you  that  abuse  or  neglect  has occurred, you must report it and are not required to keep the information confidential.  This communication is exempt from the HIPAA regulations and is recommended  to  tell  the  patient  of  the  obligation  to  report—yet  this  is  not required.

Penalties for Not Reporting


If a dental professional suspects abuse and/or neglect and does not report it, and the abuse is discovered to have occurred, the dental professional can be liable for civil or criminal prosecution that can result in a fine of $1,000 and/or a jail term of up to 6 months.

How to Report Child Abuse

  • Report suspected abuse immediately (or as soon as practically possible) by phone to Child Protective Services (CPS) in your county.
  • A written report must be forwarded within 36 hours of receiving the information by phone regarding the incident.

Official forms, the general instructions, and definitions can be downloaded from the  Department of Justice website.
Resources

  • Child Protective Services, Adult Protective Services or local law enforcement.
  • California Long Term Care Ombudsmen Crisis Line: 1-800-231-4024.
  • California Department of Aging Information Line: 1-800-510-2020  http://www.aging.ca.gov.
  • The National Domestic Violence Hotline: 1-800-799-SAFE.
  • Crime and Violence Prevention Center, California Attorney General’s Office  http://www.safestate.org.
  • Dental Professionals Against Violence: 1-800-CDA-SMILE ext. 4921.

Continue on to Ethics and the Law