Request By:
Ms. Travis Fritsch
Chairperson
Kentucky Domestic Violence Association
YWCA Spouse Abuse Center
1060 Cross Keys Road
Lexington, Kentucky 40504
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert W. Hensley, Assistant Attorney General
This is in response to your letter concerning Kentucky's KRS CHAPTER 209, PROTECTION OF ADULTS. In your letter, you have advised us of a reporting problem, or, better stated, a lack of reporting of adult abuse, by certain persons. In your letter you state: "It has been the contention, for example, of some physicians that if the adult abuse victim is receiving medical treatments that the obligation to report is alleviated; of some counselors, that if the adult abuse victim is in therapy that the obligation to report is alleviated; of some law enforcement officers that if the adult abuse victim isn't willing to prosecute or leave the abusive home situation that it alleviates their obligation to report the abuse to the Department for Social Services."
For purposes of easy accessibility we are attaching a copy of Kentucky's KRS CHAPTER 209, PROTECTION OF ADULTS. However, for purposes of answering your letter, we believe that subpoint (2) of KRS 209.030 is most relevant. It provides:
"(2) Any person, including but not limited to, physician, law enforcement officer, nurse, social worker, department personnel, coroner, medical examiner, alternate care facility employe, or caretaker, having reasonable cause to suspect that an adult has suffered abuse, neglect, or exploitation, shall report or cause reports to be made in accordance with the provisions of this chapter. Death of the adult does not relieve one of the responsibility for reporting the circumstances surrounding the death."
The report, either oral or written, is to be made immediately to the Department for Social Services of the Cabinet for Human Resources. KRS 209.030(3). Also see KRS 209.020(3) defining "Department." A penalty of not less than twenty-five dollars ($25.00) nor more than two hundred dollars ($200.00) is provided for willful violation of KRS 209.030(2). See KRS 209.900(1).
First you advise us that there are physicians who decline to make the report as required by KRS 209.030 if the adult abuse victim is receiving medical treatment.
The physician-patient relationship is a creation of the legislature having no basis in the common law. In Atwood v. Atwood, Ky., 550 S.W.2d 465 (1976) the Supreme Court of Kentucky stated at page 466: "At common law there is no privilege existing between doctor and patient or psychiatrist and patient. " Furthermore, even if such a privilege between doctor and patient did exist at common law, Kentucky does not strictly construe any statute in derogation of the common law. In other words, in Kentucky we could, by legislation, abrogate the common law. See Branzburg v. Pound, Ky., 461 S.W.2d 345 (1970) mod. on den. of reh. 1971, and KRS 446.080(1). Thus, since the privilege between physician and patient is purely the creation of the legislature, the legislature can alter, change, modify or repeal it.
Therefore, we conclude that there is no bar by virtue of the physician-patient relationship to the report of a case of suspected adult abuse by the attending physician.
Furthermore, any interpretation by any physician of his or her duty relevant to an abused spouse as you have advised us is, in our opinion, not well-founded. KRS 209.030(2) reads: ". . . shall report." Under Kentucky law "shall" is mandatory. See KRS 446.010(29): "As used in the statute laws of this state, unless the context requires otherwise: 'Shall' is mandatory. "
Secondly, you have advised us of some counselors that do not report the abuse if the adult abuse victim is in therapy. Aside from the fact that it seems to us that therapy to the victim is misplaced, we find nothing in KRS 209.030(2) to relieve the reporting obligation.
Concerning the third facet of your problem about law enforcement officers who do not report the abuse if the victim will not prosecute or refuses to remove himself or herself from the abusive home environment, clearly this is unwarranted in view of the mandatory language of KRS 209.030(2). The report "shall" be made. The department, it seems to us, can then deal with the abusive home environment as best suits the particular situation. The law enforcement officer clearly exceeds his or her authority by declining the report as you have advised us.