What is Physical Elder Abuse?

ELDER PHYSICAL ABUSE

            Studies have recently found that the rate of elder abuse is growing at an alarming speed. In 2010, there were about 5,961,568 reported elder abuse cases, 15.7% of them were physical abuse cases. The desire to punish those who commit elder abuse is reflected in California law and should not go unreported.

Who is an Elder?

            In the state of California, an ‘elder’ is defined as persons 65 years and older (Welfare & Institution Code, § 15610.27)

What Constitutes ‘Abuse’?

            Under The Elder Abuse Act, ‘abuse’ is defined broadly and includes any:

• Physical abuse which is the use of physical force that may result in bodily injury, physical pain or impairment;
• Sexual abuse which is non-consensual sexual contact of any kind;
• Emotional abuse which is the infliction of anguish, pain, or distress through verbal or non-verbal acts;
• Financial abuse which is the illegal or improper use of an elder’s funds, property or assets;
• Neglect and Abandonment which is the refusal, or failure, to fulfil any part of a person’s obligations or duties or the desertion of an elder by an individual who has physical custody of the elder or by a person who has assumed responsibility for providing care to the elder , or
•  Other Treatment resulting in physical harm or pain or mental suffering.

Perpetrators of elder abuse include caregivers and attendants, employees of care facilities, fellow facility residents, family members (including sons, daughters, grandchildren and spouses) and others.

What Constitutes “Physical Elder Abuse”?

            More specifically, elder physical abuse is the non-accidental use of physical force against an elder that may result in bodily injury, physical pain or impairment, regardless of whether those specific results were actually intended. Under Welfare & Institutions Code § 15610.63, “Physical abuse” could mean a variety of actions, including:

• Battery which is any wilful and unlawful use of force or violence upon the person of another (section 242 of the Penal Code). This could include a carer applying unnecessary force on an elder such as rough handling, slapping, hitting, beating, shoving, pushing, kicking, pinching, burning, biting, severe beatings or inappropriate restraint that result in bruising, cuts, wounds or any physical injury.
• Assault which is any attempt to commit battery as defined above (section 240 of the Penal Code), including assault with a deadly weapon or force likely to produce great bodily injury. For example when an individual (such as a carer or family member) uses an object as a weapon (e.g. any household object like a broom) or uses force capable of causing great bodily injury to an elder.
• Neglect or abandonment by caregivers. Neglect is the failure of a caregiver to fulfill his or her care giving responsibilities to the elder. Neglect can be intentional or unintentional (passive), based on factors such as ignorance or denial that an elder needs certain types of care, or as much care as he or she does. This could include failing to provide basic necessities such as feeding, bathing and or otherwise properly caring for an elder resulting in unusual weight loss, dehydration, untreated physical problems, and unsanitary or unsafe living conditions.  In the extreme case of Delaney v. Baker, the elder was left lying in her own urine and faeces for extended periods of time and as a result suffered from severe bedsores. Delaney v. Baker, 20 Cal. 4th 23, 971 P.2d 986 (1999).
• Unreasonable physical constraint or prolonged or continual deprivation of food or water. In the case of Covenant Care v. Sup. Ct. an institution “withh[e]ld essential care, treatment and medical services from decedent including . . . food, fluids, medicine, and basic nursing care including basic palliative care.” It could also include an individual (such as a carer or family member) who unreasonably doesn’t allow an elder food or water, or keeps them restrained in one place. Covenant Care, Inc. v. Superior Court, 32 Cal. 4th 771, 86 P.3d 290 (2004).
• The use of a physical or chemical restraint or psychotropic medication. This includes restraints administered for punishment such restraint for a period beyond that for which the medication was ordered pursuant to the instructions of a physician and surgeon licensed in the State of California or any purpose not authorized by the physician and surgeon. In a recent case involving Kern Valley Healthcare District hospital, the hospital ordered the administration of psychotropic medications to 23 elderly residents of the skilled nursing facility, not for therapeutic reasons but to control and quiet them for the convenience of staff. The drugs were given to patients who were noisy, prone to wandering, who complained about conditions or were argumentative.
• Sexual elder abuse. Sexual assault includes non-consensual sexual contact of any kind including physical sexual acts, and activities such as showing pornography or forcing the senior to watch sexual conduct. Furthermore, sexual assault includes any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal commits an offence. “Touches” can mean physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense. The majority of identified victims are women; however older men have been sexually abused in both domestic and institutional settings. The Welfare & Institutions Code § 15610.63 also specifically includes sexual battery, rape, rape in concert, spousal rape, incest, sodomy, oral copulation, sexual penetration, lewd or lascivious acts.

            If you believe that you or your loved one is victim of elder abuse, contact an experienced physical and financial elder abuse attorney at  Evans Law Firm, Inc. You may also call us at 415-441-8669 or e-mail us at info@evanslaw.com for a free and confidential consultation.