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ADULT PROTECTIVE SERVICES
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One of the fundamental differences between child and adult protective services is the fact that, unlike the child who is dependent, the adult is independent with basic rights of self-determination and privacy. State adult protection and mandatory reporting laws are based on the assumption that there are older persons who are unable to adequately care for themselves and who have no one to care for them and that the state, therefore, has an obligation, as parens
patriae, to assume responsibility. . . . Achieving a balance between the person’s individual rights and society’s responsibility to protect dependent adults will always be difficult.
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IMPROVING PROTECTIVE SERVICES FOR OLDER AMERICANS
CENTER FOR RESEARCH AND ADVANCED STUDY
UNIVERSITY OF MAINE |
THE GOAL OF PROTECTIVE SERVICES
The goal of adult protective services (APS) is to protect a vulnerable adult’s life, health, and property without a loss of liberty and, when this is not possible, to provide care with the least disruption of life style, with full due process protection, and restoration of the person’s liberty in the shortest possible period of time. APS seeks to achieve simultaneously and in order of importance: freedom, safety, and minimal disruption of lifestyle and least-restrictive care.
BACKGROUND AND AUTHORITY
In 1974 the Code of Virginia, §63.1-55.1, included for the first time statutory authority for providing adult protective services in Virginia. Local departments of social services were assigned authority to receive and investigate reports of abuse, neglect, and exploitation across all care settings and to provide the needed protective services. Three years later, in 1977, the protective services provision of the Code was amended to allow the court to authorize “involuntary protective services” (i.e., services for adults who need protection and who do not have the ability to consent to the necessary services). Virginia became one of the first states in the nation to recognize an adult segment of the population living at risk of harm and lacking the ability to act in its own best interest. A 1983 amendment to the Code of Virginia strengthened protection to vulnerable adults in Virginia by moving a step beyond authorizing local departments of social services to provide protective services, to requiring those departments to receive and investigate reports and provide protective services when the need is documented through an APS investigation.
SOME BASIC PRINCIPLES IN PROVIDING PROTECTIVE SERVICES TO ADULTS
- Freedom is as important as safety; that is, an adult may choose to live in an unsafe situation or even in a self-destructive manner provided that that person is capable of choosing, does not harm other persons, and is committing no crime.
- Adults have the right to make decisions for themselves until such time as a court determines the adult lacks the capacity to decide and assigns that responsibility to a guardian or conservator. The adult’s right to decide includes the right to accept help, the right to refuse help, and the right to make unwise or poor decisions.
- Services that support and strengthen the adult’s informal support system, e.g., family, neighbors, friends, church members, are important to the long-term safety and well being of the adult victim of abuse, neglect, or exploitation.
- When the interest of an APS client and the interest of family members or the community or others are in conflict, it is the responsibility of the APS social worker to represent the interest of the client.
- The least restrictive service is the most appropriate service. Protective services should be provided with the least possible disruption to the adult’s life.
- The privacy rights of the adult will be respected and information concerning him or her will be held in confidence. Information that is learned and maintained as a result of an APS investigation is confidential and is not subject to the Virginia Freedom of Information Act. Limited information may be shared with certain entities when the information is reasonably necessary for conducting investigations by local and state government agencies for the purpose of providing services to the subject of the information.
ADULT ABUSE, NEGLECT, AND EXPLOITATION IN VIRGINIA
An APS report is an allegation by any person to a local department of social services or to the 24-hour toll-free APS hotline that an elder or an incapacitated adult is in need of protective services. Certain persons are required by Code of Virginia, §63.1-55.3, to file a report with the local department of social services when the person has reason to suspect that an elder or an adult with disabilities is abused, neglected, or exploited.
ABUSE is defined by the Code of Virginia, §63.1-55.2, as “the willful infliction of physical pain, injury or mental anguish or unreasonable confinement.” Abuse includes battery and other forms of physical violence including, but not limited to, hitting, kicking, burning, choking, scratching, rough-handling, cutting, biting, etc. It includes sexual assault, inflicting pornography, voyeurism, exhibitionism, and other forms of forced sexual activity on an elder or an adult with disabilities. It includes any sexual activity with an adult who is unable to understand or give consent. It includes the control of an adult through the use of threats and intimidation and through the abuse of a relationship of trust.
NEGLECT is defined by the Code of Virginia, §63.1-55.2, as “an adult living under such circumstance that he is not able to provide for himself or is not being provided such services as are necessary to maintain his physical and mental health and that the failure to receive such necessary services impairs or threatens to impair his well-being.” This definition incorporates both those who are self-neglected, i.e., living under such circumstance that he/she is not able to provide for himself/herself, and those whose need for physical and mental health services are not being provided by another person. Indicators of neglect include, but are not limited to, malnourishment, dehydration, the presence of pressure sores, inadequate personal hygiene, inadequate and/or inappropriate clothing, inadequate or inappropriate supervision, extreme filth of person or home, severe pest/rodent infestation, offensive odors, inadequate heat, no fuel, no electricity, no refrigerator, or untreated physical or mental health problems. Abandonment is also a form of neglect.
EXPLOITATION is defined by the Code of Virginia, §63.1-55.2, as “the illegal use of an incapacitated adult or his resources for another’s profit or advantage.” Exploitation, or financial abuse, is accomplished by the use of covert, subtle, and deceitful means. It is usually a pattern of behavior rather than a single episode. Financial exploitation includes, but is not limited to, the crimes of larceny, embezzlement, theft by false pretenses, burglary, forgery, false impersonation, and extortion. Indicators that a person is being financially exploited may include, but is not limited to: activity in that adult’s bank account that is erratic, unusual, or uncharacteristic of that person; the person’s automatic teller card is used and the account owner is unable to use the card; new acquaintances have taken up residence in the older person’s home; change in the older person’s property titles, will, or other documents, particularly if the person is confused and/or the documents favor new acquaintances; a power of attorney is executed by a confused older person; documents and/or property is missing; the older person is being evicted and believes he/she owns the house; or the elder’s mail has been redirected to a different address.
CASE FINDING AND MANDATORY REPORTING
There continue to be significant barriers to the identification of older adults and adults with disabilities suspected of needing protective intervention. A study conducted in 1996 by the National Center on Aging estimates that only one in eight incidents of elder abuse is ever reported to the agency with authority to intervene. Most states have enacted mandatory reporting statutes. Virginia’s mandatory reporting law requires specified groups of persons to report to the local department of social services immediately upon suspecting abuse, neglect, or exploitation and imposes a penalty for any mandated reporter found guilty of not reporting within 24-hours of having the reason to suspect. Mandated reporters, as identified by the Code of Virginia, §63.1-55.3, include the following:
- Any person licensed to practice medicine or any other of the healing arts;
- Any hospital resident or intern;
- Any person employed in the nursing profession;
- Any person employed by a public or private agency or facility and working with adults;
- Any person providing full-time or part-time care to adults for pay on a regularly scheduled basis;
- Any person employed as a social worker;
- Any mental health professional; and
- Any law-enforcement officer.
Persons identified in the above listing of mandated reporters are also required by the Code of Virginia, §63.1-55.3, to make available to the APS worker and the local department investigating the reported case of abuse, neglect or exploitation any records or reports that document the basis for the report. Persons who make a report or provide records or information or who testify in any judicial proceeding arising from a report are immune from any civil or criminal liability unless the reporter acted in bad faith or with a malicious purpose.
ABUSE AND NEGLECT OF INCAPACITATED ADULTS IS A CRIME
The 1991 session of the Virginia General Assembly passed legislation that created §18.2-369 in the
Code of Virginia and established for the first time that abuse and neglect of an incapacitated adult is a crime. Under this section, any person who has responsibility for the care, custody or control of an incapacitated adult and who abuses or neglects that incapacitated adult shall be guilty of a Class 1 misdemeanor. A person who is convicted a second or subsequent time under this statue shall be guilty of a Class 6 felony. In any event, if the abuse or neglect results in serious bodily injury or disease to another, the offense shall be punishable as a Class 6 felony. Serious bodily injury or disease includes, but is not limited to, disfigurement, a fracture, a severe burn or laceration, mutilation, maiming, or life-threatening internal injuries or conditions, whether or not caused by trauma.
ANNUAL REPORTS BY COURT APPOINTED GUARDIANS
The Code of Virginia, §37.1-137.2, requires guardians to file an annual report with the local department of social services in the jurisdiction in which the guardian was appointed.
Local departments of social services reported through the 2001 Annual Adult Services Survey that a total of 1,170 guardianship annual reports were filed between June 1, 2000 and May 31, 2001. During the same time period, 213 guardians failed to file as required. Of all APS cases filed, 44 were opened as a result of reviewed guardianship reports.
DISPOSITIONS
Depending on the findings of the investigation, one of the following dispositions is assigned to a case:
- NEEDS PROTECTIVE SERVICES AND ACCEPTS
An adult is found to need protective services when a review of the facts shows convincing evidence that adult abuse, neglect, and/or exploitation has occurred or is occurring, or there is reason to suspect that the adult is at risk of abuse, neglect, and/or exploitation and needs protective services in order to reduce that risk. This disposition is assigned when the adult who is found to need protective services accepts the needed services or the adult who is found to need protective services is not capable of making a decision to accept needed services and the APS social worker petitions the court for the provision of involuntary protective services.
- NEEDS PROTECTIVE SERVICES AND REFUSES
This disposition is assigned when a review of the facts shows convincing evidence that adult abuse, neglect, and/or exploitation has occurred or is occurring; or there is reason to suspect that the adult is at risk of abuse, neglect and/or exploitation and needs protective services in order to reduce that risk. In these cases, the adult is capable of making a decision relative to the needed services and his or her decision is to refuse services.
- NEED FOR PROTECTIVE SERVICES IS RESOLVED OR NO LONGER EXISTS
This disposition is assigned when a review of the facts shows convincing evidence or provides reason to suspect that adult abuse, neglect, and/or exploitation has occurred. However, at the time the investigation is initiated or during the course of the investigation, the person who is the subject of the report ceases to be at risk of further abuse, neglect, and/or exploitation.
- UNFOUNDED
A report is unfounded if a review of the facts shows no reason to suspect that abuse, neglect and/or exploitation occurred or that the adult is at risk of abuse, neglect, and/or exploitation.
- DISPOSITION PENDING
Investigations that are ongoing at the end of the reporting period are pending until the investigation is completed and a disposition assigned.
24-HOUR TOLL-FREE APS HOTLINE 1-888-83-ADULT
This information has been provided by Terry Smith,
Manager, Adult Services Program, Virginia
Department of Social Services.
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