Utah Criminal Code 76-5-111.1: Reporting Requirements—Investigation–Immunity–Violation–Penalty–Physician-Patient Privilege–Nonmedical Healing
1. As provided in Section 62A-3-305, any person who has reason to believe that any vulnerable adult has been the subject of abuse, neglect, or exploitation shall immediately notify the nearest peace officer, law enforcement agency, or Adult Protective Services intake within the Department of Human Services, Division of Aging and Adult Services.
2. Anyone who makes that report in good faith to a law enforcement agency, the Division of Aging and Adult Services, or Adult Protective Services of suspected abuse, neglect, or exploitation is immune from civil and criminal liability in connection with the report or other notification.
3. When the initial report is made to a peace officer or law enforcement agency, the officer or law enforcement agency shall immediately notify Adult Protective Services intake. Adult Protective Services and law enforcement shall coordinate, as appropriate, their investigations and provide protection to the vulnerable adult as necessary.
a) Adult Protective Services will notify the Long-Term Care Ombudsman, as defined in Section 62A-3-202, when the initial report to Adult Protective Services involves a resident of a long-term care facility as defined in Section 62A-3-202. The Long-Term Care Ombudsman and Adult Protective Services shall coordinate, as appropriate, in conducting their investigations.
b) When the initial report or subsequent investigation by Adult Protective Services indicates that a criminal offense may have occurred against a vulnerable adult, Adult Protective Services shall immediately notify the nearest local law enforcement agency. That law enforcement agency shall initiate an investigation in cooperation with Adult Protective Services.
4. A person who is required to report suspected abuse, neglect, or exploitation of a vulnerable adult under Subsection (1), and who willfully fails to do so, is guilty of a class B misdemeanor.
5. Under circumstances not amounting to a violation of Section 76-8-508, a person who threatens, intimidates, or attempts to intimidate a vulnerable adult who is the subject of a report, a witness, the person who made the report, or any other person cooperating with an investigation conducted pursuant to this chapter is guilty of a class B misdemeanor.
6. The physician-patient privilege does not constitute grounds for excluding evidence regarding a vulnerable adult’s injuries, or the cause of those injuries, in any judicial or administrative proceeding resulting from a report made in good faith pursuant to this part.
7. An adult is not considered abused, neglected, or a vulnerable adult for the reason that the adult has chosen to rely solely upon religious, nonmedical forms of healing in lieu of medical care.
Doctor–Patient Privilege is a legal privilege, arising from a doctor’s obligation of confidentiality. It refers to the right to exclude from discovery and evidence in a legal preceding any confidential communication that a patient makes to a physician for the purpose of diagnosis or treatment, unless the patient consents to the disclosure. This privilege belongs to the patient, not the doctor and therefore only a patient may waive the privilege. A patient can sue the physician for damages if the doctor breaches the confidence by testifying. Physician–patient privilege is a rule of evidence in most jurisdictions, as well as a statutory guarantee, and in some cases evens a federal law. The term is used rather broadly to refer to the concept that communications between a patient and his or her doctor will be protected from disclosure to third parties and cannot be used against the patient in court or other legal proceedings. The purpose is several folds, but the primary reason is to allow the patient to speak freely with a doctor who is treating him or her to ensure that the patient receives the best and fullest medical care available under the circumstances. On the other hand, the Physician-Patient privilege does not extend to conversations with a doctor when he or she is not treating the person. So, for example, if someone tells their doctor friend about a crime committed or the nature of a medical condition while the two are golfing together, that communication is not likely to be protected in any way. As noted, the reasoning behind the rule is to ensure that a patient feels comfortable sharing openly and honestly with his or her treating physician. If the patient were afraid of sharing the truth for fear that it may lead to an arrest or damaging testimony at trial, the patient may not be truthful and the treatment process could become ineffective, take much longer, or lead to an incorrect diagnosis. For example, an underage teen could come to a doctor with a pregnancy or a venereal disease, but without the assurance of physician-patient privilege could be unwilling to divulge the exact nature of the illness. This may be particularly true if the teen’s partner is above the age of consent, and the patient fears criminal charges for the partner.
This could cause a doctor to misdiagnose the symptoms and prescribe treatment that could be dangerous to the fetus or ineffectual in treating the illness. Fortunately, physician-patient privilege prevents that fear and allows the teen to share the information without fear of reprisals against either the patient or the partner. However, even though physician-patient privilege protects the patient from disclosures that could lead to civil or criminal liability, there are laws in many jurisdictions that require a doctor to share some information. For instance, venereal diseases are often required to be shared with the state’s health department in order to prevent further spread. While the information would be shared, including who spread the disease, this information generally would not be legally shared with law enforcement or used as evidence in a criminal or civil proceeding. Other information might have to be shared with an insurance provider, but again, the same types of restrictions would usually apply. However, that the physician-patient privilege is not recognized under the Federal Rules of Evidence. While most states have such an evidence rule, federal courts do not. Nevertheless, the concept is generally protected by other federal laws, such as the Health Insurance Portability and Accountability Act (HIPAA) which prevents most disclosures about a patient’s health. At the state level, the extent of the physician-patient privilege varies from one jurisdiction to another. For example, some states may not fully embrace the privilege in criminal matters, while others may only permit it to a limited extent in civil cases.
As a result, if you are in doubt about the nature and extent of the physician-patient privilege in your jurisdiction, you should contact a Ascent Law to discuss your specific circumstances.
Hospital admitting privileges are the rights granted to a doctor by a hospital to admit patients to that particular hospital. The basic premise is that, if you need to go the hospital, your primary care physician can admit you at any hospital that has granted them privileges. It might not be the closest hospital to your home or the best hospital in the area, but rather one where they have established privileges. Maybe it’s the one where they used to work. Maybe it’s the hospital across the street. Or it might be one that is operated by the same parent company as their primary care practice. Regardless, the concept of admitting privileges is that your doctor would be able to admit you with some paperwork and a quick phone call. They would then be able to come to the hospital often once in the morning and once in at night on “rounds” to coordinate your care. They would order tests, prescribe medications, and schedule procedures. While hospital admitting privileges are no longer prevalent, it doesn’t mean your doctor cannot be an integral part of your care at the hospital. That much is true for both traditional and concierge practices. With proper authorization in accordance with HIPAA regulations, you can authorize the hospital to share information with your doctor. You or your family member can also contact your doctor to provide the information themselves. With concierge medicine, the difference comes in the access you might have and the availability of a doctor to quarterback your care in the hospital. With fewer patients, a concierge medicine physician could have the time to speak with you or the hospital staff about your care as opposed to just running from appointment to appointment. In addition, emergencies don’t strike only during business hours.
Adult Protective Services
Adult Protective Services (APS) is a social services program provided by state and/or local governments’ nationwide serving older adults and adults with disabilities who are in need of assistance. APS workers investigate cases of abuse, neglect or exploitation, working closely with a wide variety of allied professionals such as physicians, nurses, paramedics, firefighters and law enforcement officers. Every state has their own distinct APS system and programs vary from state to state in respect to populations served, services provided and scope of the program.
Most seniors and adults with disabilities live independently without assistance, however, some face abuse or neglect by others and need trained professionals to advocate on their behalf. Others may simply be struggling with routine activities and benefit from in-home support services to maintain their health and independence. APS helps by assessing each individual’s unique needs, then developing a service plan to maintain his/her safety, health and independence.
What Happens When a Report is Made?
1. A concerned citizen contacts his/her local APS office to report concerns about the welfare of a senior or adult with disabilities.
2. The details provided in the report will be screened by a trained professional to evaluate if it meets the statutory requirements for APS services in the state and/or municipality receiving the report. Here is more information about what may constitute abuse, neglect or exploitation.
3. If the situation meets criteria for abuse, neglect or exploitation, an APS worker will initiate face-to-face contact with the adult needing assistance.
4. The APS worker will assess the adult’s safety, need for assistance, and determine what services, if any, would be beneficial to maintain his/her well-being and independence.
5. While APS workers help thousands of vulnerable adults every day, individuals always have the right to decline services. Find out what makes APS unique here.
Mandatory Reporting to APS
In most states in the US, certain individuals are required by law to report suspected abuse, neglect or exploitation of vulnerable adults to adult protective services. This is referred to as “mandatory reporting.” Some states only require certain professionals to report their concerns. Other states require all citizens to report their concerns. With the U.S. Department of Justice estimating that about one in ten seniors are abused each year, chances are that you, or someone you know, has been affected by elder abuse. Elder abuse isn’t limited to physical abuse, but can also include:
• Sexual abuse
• Psychological or emotional abuse
• Financial abuse or exploitation
• Neglect
• Self-neglect
What makes the problem of elder abuse even more challenging is that only about one in twenty-three cases are actually reported to authorities. The underreporting can be due to several factors, including an elderly person’s unwillingness or inability to report the perpetrator who is often a family member or friend. Reporting elder abuse is especially challenging when the perpetrator is a trusted individual like an adult child or an attorney. In those cases, the person in the best place to report the abuse, other than the victim, may be the perpetrator. However, there are signs of elder abuse that can be observed by others, including medical professionals who would have regular interactions with seniors. Knowing what to look for can help you identify and report cases of elder abuse. Read on to learn more about what to do if you observe signs of elder abuse. If you suspect elder abuse, it’s important to report it immediately, given the serious harm to the victim’s health or assets that could result. Even if you’re unsure about whether such abuse is actually taking place, reporting your suspicions is an important first step. The resulting investigation can determine whether a senior is in fact being abused or, at the very least, it can provide the senior with helpful information to ensure that he or she is protected from abuse in the future. Every state has its own form of social services agencies to address the abuse of children. These services are typically administered at the county level. Every state also has its own Adult Protective Services (APS) agencies, which receive and investigate reports of elder abuse. They also conduct investigations and work closely with local law enforcement in the event that criminal activity is uncovered. However, unlike typical investigations, APS investigations involve agents that are trained to specifically deal with elderly victims and can provide additional support services to these types of victims. For a list of APS agencies near you, contact your local social services agency or see the APS locator provided by the National Adult Protective Services Association (NAPSA). A report of elder abuse need not be a formal, written report. Instead, all that is typically required is a telephone call to your local APS or social services agency. Important information to include in a report would be:
• The names and relationships of the parties and the person reporting
• The age and condition of the victim (physical health and mental state)
• Your specific observations and concerns (including dates of events and a timeline, if possible)
• Any concerns of immediate harm
• Any assets of the victim that may be subject to exploitation
• The location of the victim and the best way to contact him or her
• Other potential witnesses and their contact information
• Any relevant documents you may have (such as copies of emails, letters, powers of attorney, wills or trusts)
Mandatory Reporting
Depending on the laws of your state, professionals who would be in frequent contact with seniors, such as medical personnel, police, employees in care facilities, social workers, or even clergy, may be required by law to report suspicions of elder abuse. Under federal law, the Elder Justice Act requires reporting by anyone working in or with long-term care facilities that receive $10,000 or more in federal funds. Individuals who are required to report suspicions of elder abuse will typically face penalties for failing to do so. Mandatory reporting has been having a positive impact as states that have expanded reporting requirements have generally seen increases in the cases of elder abuse investigated by law enforcement.
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