Request By:
Dr. Peter Hasselbacher
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; DIANE SCHULER FLEMING, ASSISTANT ATTORNEY GENERAL
OPINION OF THE ATTORNEY GENERAL
In this opinion our office provides an interpretation of KRS Chapter 209 which relates to the protection of adults who may be suffering from abuse, neglect, or exploitation. Specifically, we address a physician's duty to report suspected spouse abuse to the Department for Social Services with the Cabinet for Human Resources.
It is the opinion of the Attorney General that the legislature intended to require physicians to report some cases of spouse abuse to the Department for Social Services. A reading of the legislature's statement of intent provides some guidance regarding the persons intended to be covered by Chapter 209.
The general assembly of the Commonwealth of Kentucky recognizes that some adults of the Commonwealth are unable to manage their own affairs or to protect themselves from abuse, neglect, or exploitation. Often such persons cannot find others able or willing to render assistance. The general assembly intends, through this Chapter, to establish a system of protective services designed to fill this need and to assure their availability to all adults. It is also the intent of the general assembly to authorize only the least possible restriction on the exercise of personal and civil rights consistent with the person's needs for services, and to require that due process be followed in imposing such restrictions.
KRS 209.090. This statement of intent demonstrates the General Assembly's recognition that some adults need special protection because of their incapacity to remove themselves from situations of abuse, neglect, or exploitation.
The purpose of this legislation is "[t]o provide for the protection of adults who may be suffering from abuse, neglect, or exploitation, and to bring said cases under the purview of the circuit or district court." KRS 209.010(1). This purpose is further expanded upon in KRS 209.010(2), which states:
[A]ny person who becomes aware of such cases shall report them to a representative of the cabinet, thereby causing the protective services of the state to be brought to bear in an effort to protect the health and welfare of these adults in need of protective services and to prevent abuse, neglect, or exploitation.
To determine who is afforded this protection, a review of the specific statutory requirements is necessary. Despite its inherent ambiguities, the statutory definition of "adult" does provide some parameters.
"Adult" means a person eighteen (18) years of age or older or a married person without regard to age, who because of mental or physical dysfunctioning, or who is the victim of abuse or neglect inflicted by a spouse, is unable to manage his own resources, carry out the activities of daily living, or protect himself from neglect, hazardous or abusive situations without assistance from others and may be in need of protective services.
KRS 209.020(4). Therefore, it is clear that the legislature intended to afford protection to adult victims of spouse abuse.
Practically speaking, this leads a physician to make a series of decisions. Once a physician becomes aware of an abuse situation, in which the victim may be in need of protective services, he or she must determine who is inflicting the abuse. If the doctor ascertains that a spouse is abusing the patient, then the obligation to report is mandatory.
The statute also addresses an additional scenario. If the physician is unable to determine who is inflicting the abuse, he or she must ascertain if the victim, because of mental or physical dysfunctioning, is able to manage his or her own resources and carry out the activities of daily living. In addition, the physician must determine whether or not the adult can protect himself or herself from neglect, hazardous or abusive situations without assistance from others. If the answer is no, and the physician decides the patient is in need of protective services, then again, the obligation to report is mandatory. KRS 209.030(2) provides:
Any person, including, but not limited to, physician, law enforcement officer, nurse, social worker, department personnel, coroner, medical examiner, alternate care facility employee, 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.
A physician who reports a suspected case of abuse in good faith pursuant to KRS 209.030 is protected from civil and criminal liability. KRS 209.050 provides:
Anyone acting upon reasonable cause in the making of any report or investigation or participating in the filing of a petition to obtain injunctive relief or emergency protective services for an adult pursuant to this chapter, including representatives of the cabinet in the reasonable performance of their duties in good faith, and within the scope of their authority, shall have immunity from any civil or criminal liability that might otherwise be incurred or imposed. Any such participant shall have the same immunity with respect to participation in any judicial proceeding resulting from such report or investigation and such immunity shall apply to those who render protective services in good faith pursuant either to theconsent of the adult or to court order.
Reporting suspected spouse abuse is not limited by, nor a violation of, the physician-patient relationship but is a legislative exception to the physician-patient relationship. OAG 83-187. The penalty for a knowing and willful failure to report the abuse is a Class B misdemeanor. KRS 209.990.
In conclusion, a physician must report a case of spouse abuse when he or she determines that a patient is the victim of abuse or neglect inflicted by a spouse, and is in need of protective services.