1. Addition of Chapter 7-5, Elder and Adult Protection Act posted for comments 4/13/06 - action pending
CHAPTER 7-5
NEZ PERCE TRIBE
ELDER AND ADULT PROTECTION ACT
§ 7-5-1 Title
This act shall be known and may be cited as the "Nez Perce Tribe Elder and Adult Protection Act".
§ 7-5-2 Purpose
The purpose of this Act is to protect the elders and vulnerable adults within the jurisdiction of the Nez Perce Tribe from abuse or neglect as defined by this Act.
§ 7-5-3 Definitions
In this Act, unless the context otherwise requires:
1. "Abuse" means:
(a) Infliction of physical injury, emotional harm or mental injury, or
(b) Injury or harm caused by negligent acts or omissions, or
(c) Unreasonable confinement, or
(d) Sexual abuse or sexual assault;
2. "Caretaker" shall mean any individual, group of individuals, or institution that is permanently or temporarily responsible by relationship, contract (actual or implied), assumption of duties, or court order to provide food, shelter, clothing, medical or other life-sustaining necessities to an elder or vulnerable adult;
3. "Elder" shall mean any person who has reached the age of fifty-five (55) years or older;
4. "Emergency" shall mean an exigent circumstance in which an elder or vulnerable adult's health and safety is placed in imminent danger. Imminent danger is when death or severe bodily injury could reasonably be expected to occur without intervention;
5. "Exploitation" means an action which may include, but is not limited to, the misuse of the funds, property, or resources of a vulnerable adult or elder by another person for profit or advantage;
6. "Neglect" means a willful or unwillful pattern of conduct resulting in deprivation of services necessary to maintain minimum physical or mental health, including, but not limited to, the deprivation of food, shelter, clothing or services necessary
to maintain physical or mental health;
7. "Officer" shall mean any Nez Perce Tribal Police Officer;
"Protective Services" means a program of identifiable and specialized social services that offers services appropriate to attempt to resolve problems which have produced visible signs of self-neglect, abuse, exploitation or neglect;
9. "Relative" shall mean any biological, legal or traditional relationship to the second degree (i.e. grandparent, grandchild, great nephew, etc.), including step, half and in-law relationships;
10. "Self-neglect" shall mean a willful or unwillful pattern of depriving oneself of services necessary to maintain minimum physical or mental health, including, but not limited to, the deprivation of food, shelter, clothing or services necessary to maintain physical or mental health;
11. "Sexual Abuse" or "Sexual Assault" shall mean any physical contact for sexual gratification of the person making such contact, or any other illegal sex act, which is not consented to by the elder or vulnerable adult or for which the consent was obtained by intimidation, fraud or other forms of duress or force;
12. "Tribe" shall mean the Nez Perce Tribe; and
13. "Vulnerable" means a permanent or temporary impairment by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication or other cause to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his/her person and/or is unable to protect himself/herself from abuse, neglect, or exploitation. A presumptive finding of vulnerability may be at the scene of the investigation or by court order, but any determination of mental illness, mental deficiency or mental disorder shall be made by a mental health professional.
§ 7-5-4 Scope
A. In the process of carrying out the responsibilities and duties in this Act, the Nez Perce Tribe Social Services Program may request the assistance of the staffs and resources of all appropriate tribal departments, agencies, commissions, or health directors, and may utilize any other appropriate and available tribal, state, public or private agencies, groups or individuals. Interagency cooperation shall include the involvement, when appropriate, of law enforcement personnel, department personnel, medical personnel, state personnel and any other person or entity deemed necessary due to their specialized training in providing services to elders or vulnerable adults. Interagency cooperation may also include access to client information necessary for the provision of services to elders or vulnerable adults. Interagency staffing and sharing of client and facility information shall be used, when necessary, to provide services to elders and vulnerable adults.
B. Nothing in this Act shall be construed to mean that a vulnerable adult or elder is abused, neglected or in need of protective services for the sole reason that he/she relies on treatment from a recognized religious method of healing in lieu of medical treatment, nor shall the provisions of this Act be construed to require any medical care or treatment in contravention of the stated or implied objection of an elder or vulnerable adult, except as noted.
§ 7-5-5 Powers and Duties
A. The duties of the Nez Perce Tribe Social Services Program shall include, but not be limited to, the following:
1. Receiving reports of abused, exploited, self-neglected or neglected vulnerable adults and elders;
2. Receiving from any source oral or written information regarding a vulnerable adult or elder who may be in need of protective services;
3. Upon receipt of such information, make an evaluation to determine if the vulnerable adult or elder is in need of protective services and what services, if any, are needed;
4. If the allegations in a report indicate that an emergency exists, an investigation shall be immediately initiated as well as contact with the affected elder or vulnerable adult within twenty-four (24) hours. All other investigations must be initiated within seventy-two (72) hours;
5. In an emergency, the assistance of an Officer and/or Emergency Medical Services to ensure the safety of the elder or vulnerable adult may be enlisted. In an emergency a Nez Perce Tribe Social Services Program worker, Officer or Emergency Medical Services personnel may enter on private or public property where an elder or vulnerable adult is allegedly subject to abuse, neglect, self-neglect or exploitation, and may remove and/or transport the elder or vulnerable adult to a medical facility, care-providing facility, or other appropriate, safe environment;
6. Offer a vulnerable adult or elder in need of protective services, or his/her guardian, whatever services appear appropriate in view of the evaluation; and
Work with the Tribal prosecutor or other appropriate authority for the appointment of a guardian or conservator or the appointment of a temporary guardian or temporary conservator, as provided for in the Nez Perce Tribal Code or other duly enacted Tribal law or ordinance. The caseworker may not be appointed as guardian, conservator, temporary guardian or temporary conservator. The caseworker shall be immune from liability for applying for or filing a petition for guardianship or conservatorship, unless the application or filing is done in bad faith.
B. The investigation that is conducted shall include a determination of the nature, extent, and cause of the abuse, neglect, self-neglect, or exploitation, an examination of evidence and consultations with persons thought to have knowledge of the circumstances and identification, if possible, of the persons alleged to be responsible for any abuse, neglect, or exploitation of the elder or vulnerable adult.
C. The investigation may include:
Personal interviews of the abused, the immediate family and caretaker, suspected abuser, employees of any involved agencies, and any other person who may have pertinent information;
Medical records and other evidence of abuse if applicable;
3. Assessments of the elder or vulnerable adult’s living conditions using Tribal standards for housing; and
4. Any other observations, assessments, documents or information including audio or video tapes that may aid in completing an accurate report.
D. Upon completion of the investigation, a written report of the investigation shall be prepared. The name of the person making the original report or any person mentioned in the report shall not be disclosed unless those persons specifically request such disclosure or unless the disclosure is made pursuant to a request to law enforcement for emergency access, a court order or hearing.
E. If, as a result of any investigation initiated under this Act, it appears that the abuse, neglect or exploitation has caused injury or a serious imposition on the rights of the elder or vulnerable adult, an officer and/or a tribal prosecutor shall be immediately contacted, which shall initiate an investigation and determine whether criminal proceedings shall be initiated against a Caretaker or other persons liable under this Act.
§ 7-5-6 Imminent Danger
If the vulnerable adult is believed to be in imminent danger and the social worker cannot gain access, then the social worker will enlist the assistance of a law enforcement officer to ensure the safety of the vulnerable adult.
B. The law enforcement officer can also assist in the following ways:
1. Help with the judicial process necessary to ensure the safety of the vulnerable adult;
2. Help ensure the safety of the adult protection worker by accompanying the worker when there is a potentially dangerous situation;
3. Help establish probable cause for a search and assist in obtaining a search warrant;
4. Identify any other criminal activity that may be occurring; or
5. Conduct "welfare checks" on individuals at the request of the social worker.
§ 7-5-7 Access to Investigate
A Nez Perce Tribe Social Service Program worker may gain emergency access to the residence of the client for the purpose of conducting a protective investigation if:
1. The client is unable to consent to entry because he/she is medically unable; or
2. The client is unwilling to consent to entry; or
3. The care giver is unwilling to consent to entry; and
4. The social worker has reason to believe that a client is in an abusive and/or neglectful situation in which death or severe bodily harm could reasonably be expected to occur without intervention; and
5. The social worker has requested and has received the assistance of law enforcement.
§ 7-5-8 Law Enforcement Responsibilities
A. Law enforcement officers have a duty to report immediately to Nez Perce Tribe Social Service Program, based on reasonable cause, the abuse or neglect of a vulnerable adult or elder.
B. If known, the report shall contain the name and address of the vulnerable adult or elder; the caretaker; the alleged perpetrator; the nature and extent of suspected abuse or neglect; and any other information that will be of assistance.
C. The cooperation of officers may be requested by Nez Perce Tribe Social Service Program to assist in an investigation where a vulnerable adult or elder is alleged to be abused, neglected, or exploited.
D. Officers shall serve search warrants on any private or public property where authorized tribal employees or their representatives were unable to obtain a consent, and where a vulnerable adult or elder allegedly is subject to abuse or neglect.
E. The law enforcement authority in the appropriate jurisdiction will be notified by the Nez Perce Tribe Social Service Program immediately upon a finding that the abuse or neglect, appears to have caused injury or a serious imposition to the rights of the vulnerable adult or elder. Law Enforcement shall immediately initiate an investigation and will determine whether criminal proceedings should be initiated.
§ 7-5-9 Nez Perce Tribe Prosecutor Responsibilities
A. Upon request by a law enforcement officer and a showing of probable cause to believe that abuse or neglect has occurred, the tribal prosecutor shall assist in securing a search warrant that would allow the inspection and search of the premises where the alleged abuse or neglect has occurred.
B. If, based upon the investigation of the Nez Perce Tribe Social Service Program, Officers determine that criminal action is warranted, then the case shall be referred to the tribal prosecutor for further action. The tribal prosecutor shall ultimately determine what action should be filed in tribal court pursuant to the Nez Perce Tribal Code and shall inform the Nez Perce Tribe Social Service Program of the action taken. The prosecutor's office is to respond within two (2) to fourteen (14) days as to whether or not the case will be prosecuted.
C. The Nez Perce Tribal Prosecutor will consider the Nez Perce Tribal Code § 4-1-89 and any other relevant criminal or civil provisions in determining whether criminal charges for abuse or neglect can or should be filed.
§ 7-5-10 Special Powers and Duties in Cases of Self -Neglect
A. If a report issued pursuant to Subsection D of § 7-5-5 contains a finding of self-neglect involving an elder or vulnerable adult, the Nez Perce Tribe Social Services Program shall work with the Tribal prosecutor or other appropriate authority to petition the court for the appointment of a temporary or permanent guardian or conservator as provided for in the Nez Perce Tribal Code or other duly-enacted Tribal law or ordinance.
B. In an emergency, an elder or vulnerable adult suffering from self-neglect shall be transported to an appropriate medical facility. A presumptive finding of self-neglect may be made at the scene.
§ 7-5-11 Immunity of Participants: Non-Privileged Communication
A. Any person making a complaint, furnishing a report, information or records required or authorized by this Act, or participating in a judicial or administrative proceeding or investigation resulting from reports, information or records submitted or obtained pursuant to this Act is immune from any civil, criminal, or licensing sanction liability by reason of such action, unless the person acted with malice, bad faith, gross negligence, conducted perjury or unless such person has been charged with or is suspected of incapacitating, abusing, exploiting or neglecting the vulnerable adult or elder in question.
B. The physician-patient privilege, therapist-patient, husband-wife privilege or any other privilege, except the attorney-client privilege, provided for by the Nez Perce Tribal Code shall not pertain in any civil or criminal litigation in which a vulnerable adult's or elder's exploitation, abuse or neglect is an issue, nor shall they pertain in any investigation of a vulnerable adult's or elder's exploitation, abuse or neglect.
§ 7-5-12 Duty to Report Abuse, Neglect, Self-Neglect or Exploitation of Vulnerable Adults or Elder; Confidentiality; Violation
A. Any professional, including but not limited to physicians, dentists, psychologists, social workers, emergency response personnel, or other person who has responsibility for the care of a vulnerable adult or elder and whose examination or observation of the vulnerable adult or elder yields a reasonable basis to believe that abuse, neglect, self-neglect, or exploitation of the vulnerable adult, elder, or the property of the vulnerable adult or elder has occurred, shall immediately report or cause reports to be made of such to an Officer or the Nez Perce Tribal Social Services Program.
B. Any guardian or conservator of a vulnerable adult or elder who becomes aware or suspects abuse, neglect, self-neglect, or exploitation of the vulnerable adult, elder, or the property of the vulnerable adult or elder to which they act as guardian or conservator has occurred, shall immediately report or cause reports to be made of such reasonable basis to an Officer or the Nez Perce Tribal Social Services Program.
C. Any attorney, accountant, trustee, guardian, conservator or other person who has responsibility for preparing the tax or other financial records of a vulnerable adult or elder, or a person who has responsibility for any other action concerning the use or preservation of a vulnerable adult's or elder's property and who, in the course of fulfilling that responsibility, discovers cause to believe that abuse, neglect, self-neglect or exploitation of the vulnerable adult, elder, or vulnerable adult's or elder's property has occurred, shall immediately report or cause reports to be made of such to an Officer or the Nez Perce Tribal Social Services Program.
D. All of the reports required in subsections A, B or C of this section, shall be made immediately in person or by telephone to an Officer or the Nez Perce Tribal Social Services Program.
E. Reports pursuant to this section should contain:
F. Any person, including any caretaker, other than one required to report or cause reports to be made in accordance with this section, who has a reasonable basis to believe that abuse, neglect, self-neglect, or exploitation of a vulnerable adult, elder or the property of a vulnerable adult or elder has occurred, has a duty to report the information to an Officer or the Nez Perce Tribal Social Services Program as soon as possible.
G. The name of the reporting party who reports any abuse, neglect, self-neglect or exploitation as required by this Act shall remain confidential and shall not be released to any person unless the reporting party consents to such release or such release is ordered by the Nez Perce Tribal Court.
§ 7-5-13 Mandatory Arrest
A. Any officer shall arrest and take into custody persons whom the officer has probable cause to believe abused or neglected an elder or vulnerable adult. No warrant is required to make such arrest. This mandatory arrest provision means that the victim need not sign a complaint for an arrest to occur. Further, under this provision an Officer shall arrest under probable cause even though it may be against the express wishes of the victim. An officer shall arrest and take into custody, a person whom the officer has probable cause to believe has violated a court order for protection, restraining the person from contact with the victim or excluding the person from the residence, if the existence of the court order can be verified. Regardless of whether the person violating the court order was invited back into the home, an arrest shall be made.
B. Arrest of a person exploiting an elder, vulnerable adult or the property of an elder or vulnerable adult is not mandatory, but is discretionary. If no arrest is made, the investigating Officer shall file a written report in accordance with subsections E of § 7-5-12.
C. Any person arrested under this Act shall be held without bail in the custody of the Nez Perce Tribal Police Department for a period of at least twelve (12) hours, as a mandatory "cooling-off’ period.
D. Any Officer taking action to arrest a suspect under authority of this section shall be immune from any civil, criminal, or other liability by reason of such action, unless the Officer acted with malice, bad faith, gross negligence, conducted perjury or unless such Officer has been charged with or is suspected of abusing, exploiting or neglecting the vulnerable adult or elder in question.
§ 7-5-14 Duty to Make Medical Records Available; Violation
A. A person having custody or control of medical or financial records of a vulnerable adult or elder, from whom a report is required or authorized under this section, shall make such records, or a copy of such records, available to an Officer or the Nez Perce Tribal Social Services Program investigating the abuse, neglect, self-neglect or exploitation of the vulnerable adult, elder or the property of the vulnerable adult or elder, upon written request for the records signed by the Officer or Nez Perce Tribal Social Services Program. Records disclosed pursuant to this subsection are confidential and may be used only in a judicial or administrative proceeding or investigation required or authorized under this Act.
B. If records, required or authorized by this section, are received by a Officer, he/she shall notify the designated Nez Perce Tribal Social Services Program as soon as possible and make such information available.
C. A person required to prepare reports pursuant to this Act may take or cause to be taken photographs of the vulnerable adult or elder and the vicinity involved. Medical examinations, including radiological examinations of the vulnerable adult or elder may
also be performed. Accounts, inventories or audits of the exploited vulnerable adult's or elder's property may be performed. The department, agency, or court that initiates such photographs, examinations, accounts, inventories or audits shall pay the associated costs in accordance with existing statutes and rules. If any person is found to be responsible for the abuse, neglect or exploitation of a vulnerable adult or elder in a criminal or civil action, the Nez Perce Tribal Court may order the person to make restitution as the court deems appropriate.
D. If psychiatric, substance abuse or other mental health records are requested pursuant to this section, the custodian of the records shall notify the attending clinician, who may, before the records are made available, excise the following:
1. Personal information about individuals other than the patient; and
2. Information regarding specific diagnosis or treatment of a psychiatric condition, if the attending clinician certifies in writing that release of the information would be detrimental to the patient's health or treatment.
E. If any portion of a psychiatric record is excised pursuant to subsection D of this section, the Nez Perce Tribal Court may, upon application of a Officer or Nez Perce Tribal Social Services Program, order that the entire record or any portion of such record containing information relevant to the reported abuse, neglect, self-neglect or exploitation be made available to the Officer or Nez Perce Tribal Social Services Program investigating the abuse, neglect, self-neglect or exploitation.
§ 7-5-15 Permitting Life or Health of a vulnerable Adult or Elder to be Imperiled by Abuse Neglect or Exploitation: Legal Remedies: Registry
A. Any Caretaker, Relative, or other person or institution who has been employed to provide care, or who has assumed a legal duty to provide care, or who has been appointed by a court to provide care to a vulnerable adult or elder and who causes or permits the life of the vulnerable adult or elder to be endangered, his/her health to be injured or to be imperiled by abuse, neglect or exploitation is guilty of a criminal offense, punishable by imprisonment for a period not to exceed 365 days or a fine not to exceed $5,000.00, or both.
B. Any Caretaker, Relative, or other person or institution who aids, abets or otherwise assists or condones the acts or omissions of another person who abuses, neglects or exploits a vulnerable adult or elder shall be treated as if such person committed the offenses himself or herself.
C. A vulnerable adult or elder whose life or health is being or has been endangered, injured or imperiled by neglect, abuse or exploitation may cause to be filed a civil action in tribal court, either by themselves, their guardian, conservator, or any other interested party, against any Caretaker, Relative, or other person or institution that has been employed to provide care, that has assumed a legal duty to provide care or that has been appointed by a court to provide care to such vulnerable adult or elder for having caused or permitted such conduct.
D. The Tribe, through the Tribal Prosecutors' Office, may file an action pursuant to this Act on behalf of those vulnerable adults or elders who have been abused, neglected or exploited and in such action may seek to prevent, restrain, or remedy the conduct prohibited in this Act.
E. The Nez Perce Tribal Court has jurisdiction to prevent, restrain and remedy the conduct prohibited in this Act.
F. Prior to a determination of liability in any civil action authorized by this Act, the Nez Perce Tribal Court may issue orders that include, but are not limited to, the following relief.
1. Restraining or protection orders;
2. Temporary injunctions;
3. Setting satisfactory performance bonds;
4. Creating receiverships;
5. Appointing qualified receivers; or
6. Enforcement of constructive trusts.
G. After a determination of liability in any civil action authorized by this Act, such court orders may include, but are not limited to:
1. Ordering the payment of actual and consequential damages, as well as punitive damages, costs of suit and reasonable attorney fees, to those vulnerable adults or elders injured by the conduct prohibited in this Act; and
2. Ordering the payment of all costs and expenses of the prosecution and investigation of the conduct prohibited in this Act incurred by the Tribe, as appropriate; such payment shall be made to the general fund of the Tribe.
H. A defendant convicted in any criminal proceeding is precluded from subsequently denying the essential allegations of the criminal offense of which he/she was convicted in any civil proceeding. For the purposes of this subsection, a conviction may result from a verdict or plea, including a plea of no contest.
I. The initiation of civil proceedings pursuant to this Act shall be commenced within three years after actual discovery of the cause of action.
J. The standard of proof in actions brought pursuant to this Act is the preponderance of the evidence.
K. The tribal prosecutor may, upon timely application, intervene in any civil action or proceeding brought under this Act if the tribal prosecutor certifies that, in his/her opinion, the action is of special public importance. Upon intervention, the tribal prosecutor may assert any available claim and is entitled to the same relief as if the tribal prosecutor had instituted a separate action.
L. In addition to the Tribes' right to intervene as a party in any action under this Act, the tribal prosecutor may appear as a friend of the court in any proceeding in which a claim under this Act has been asserted or in which the court is interpreting this Act.
M. A civil action authorized by this Act is remedial and not punitive and does not limit and is not limited by any other civil remedy or criminal action or any other provision of law; civil remedies provided under this title are supplemental and not mutually exclusive.
N. The cause of action or the right to bring a cause of action pursuant to this Act shall not be limited or affected by death of the neglected, abused or exploited elder or vulnerable person.
§ 7-5-16 Severability
If any of the provisions of this Act are ruled, by a court of competent jurisdiction, to be unconstitutional, illegal, or otherwise unenforceable, the remaining provisions of this Act shall remain in full force and effect to the extent that the purpose of this Act shall remain.