24.01 Operating Policy and Procedure / Subject: Abuse & Neglect

PURPOSE

To establish CMHSAS-SJC policy regarding abuse and neglect of recipients as defined in the Mental Health Code (MMHC) and Department of Health and Human Services (DHHS) Administrative Rules (AR).

POLICY

A recipient of mental health services shall not be subjected to abuse or neglect. All staff, volunteers, students and interns of contracted or directly operated programs of CMHSAS-SJC are responsible for safeguarding recipients from abuse and neglect, are expressly prohibited from committing abuse and neglect.

DEFINITIONS

Abuse - Criminal means one or more of the following:

  1. An assault that is a violation or an attempt or conspiracy to commit a violation of sections 81 to 90 of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.81 to 750.90 of the Michigan Compiled Laws. Criminal abuse does not include an assault or an assault and battery that is a violation of section 81 of Act No. 328 of the Public Acts of 1939, being section 750.81 of the Michigan Compiled Laws, and that is committed by a recipient against another recipient.
  2. A criminal homicide that is a violation or an attempt, or conspiracy to commit a violation of section 316, 317, or 321 of Act. No. 328 of the Public Acts of 1931, being sections 750.316, 750.317, and 750.321 of the Michigan Compiled Laws.
  3. Criminal sexual conduct that is a violation of an attempt or conspiracy to commit a violation of sections 520b to 520e or 520g of Act No. 328 of the Public Acts of 1931, being 750.520b to 750.520e and 750.520g of the Michigan Compiled Laws.

Abuse means the non-accidental physical or emotional harm to a recipient, or sexual contact with or sexual penetration of a recipient as those terms are defined in section 520a of the Michigan penal code, 1931 PA 328, MCL 750.520a, that is committed by an employee or volunteer of CMHSAS-SJC or by an employee or volunteer of a service provider under contract with CMHSAS-SJC and includes any of the following:

Abuse - class I

A non-accidental act or provocation of another to act by an employee, volunteer, or agent of a provider that caused, or contributed to, death, sexual abuse of, or serious physical harm to a recipient.

Abuse - class II

  1. A non-accidental act or provocation of another to act by an employee, volunteer, or agent of a provider that caused or contributed to non-serious physical harm to a recipient.
  2. The use of unreasonable force on a recipient by an employee, volunteer, or agent of a provider with or without apparent harm.
  3. Any action or provocation of another to act by an employee, volunteer, or agent of a provider that causes or contributes to emotional harm to a recipient.
  4. An action taken on behalf of a recipient by assuming incompetence, despite the fact that a guardian has not been appointed, which results in substantial economic, material, or emotional harm to the recipient.
  5. Exploitation of a recipient by an employee, volunteer, or agent of a provider

Abuse - class III

The use of language or other means of communication by an employee, volunteer, or agent of a provider to degrade, threaten, or sexually harass a recipient.

Emotional Harm

Impaired psychological functioning, growth, or development of a significant nature as evidenced by observable physical symptomotology or as determined by a mental health professional.

Exploitation

An action by an employee, volunteer, or agent of a provider that involves the misappropriation or misuse of a recipient’s property or funds for the benefit of an individual or individuals other than the recipient.

Neglect means an act or failure to act committed by an employee or volunteer of CMHSAS-SJC, a service provider under contract with CMHSAS-SJC, or an employee or volunteer of a service provider under contract with CMHSAS-SJC, that denies a recipient the standard of care or treatment to which he or she is entitled under the MMHC and AR and includes any of the following:

Neglect - class I

  1. Acts of commission or omission by an employee, volunteer, or agent of a provider which result from noncompliance with a standard of care or treatment required by law and/or rules, policies, guidelines, written directives, procedures, or individual plan of service and causes or contributes to the death, or sexual abuse of, or serious physical harm to a recipient.
  2. The failure to report apparent or suspected abuse Class I or neglect Class I of a recipient.

Neglect - class II

  1. Acts of commission or omission by an employee, volunteer, or agent of a provider which result from noncompliance with a standard of care or treatment required by law and/or rules, policies, procedures, guidelines, written directives, or an individual plan of service and that cause, or contribute to non-serious physical harm or emotional harm to a recipient.
  2. The failure to report apparent or suspected abuse Class II or neglect Class II of a recipient.

Neglect - class III

  1. Acts of commission or omission by an employee, volunteer, or agent of a provider which results from noncompliance with a standard of care or treatment required by law and/or rules, policies, guidelines, written directives, procedures, or individual plan of service that either placed or could have placed a recipient at risk of physical harm or sexual abuse.
  2. The failure to report apparent or suspected abuse Class III or neglect Class III of a recipient.

Non-Serious Physical Harm

Physical damage or what could reasonably be construed as pain suffered by a recipient, that a physician or registered nurse determines could not have caused or contributed to the death of a recipient, the permanent disfigurement of a recipient, or an impairment of his or her bodily function(s).

Physical Management

A technique used by staff as an emergency intervention to restrict the movement of a recipient by direct physical contact to prevent the recipient from harming himself, herself, or others.

Serious Physical Harm

Physical damage suffered by a recipient, which a physician or RN determines caused or could have caused the death of a recipient, or caused the impairment of his/her bodily function(s), or the permanent disfigurement of the recipient.

Sexual Abuse

  1. Criminal sexual conduct as defined by section 520b to 520e of 1931 PA 318, MCL 750.520b to MCL 750.520e involving an employee, volunteer, or agent of a provider and a recipient
  2. Any sexual contact or sexual penetration involving an employee, volunteer, or agent of a department operated hospital or center, a facility licensed by the department under section 137 of the act or an adult foster care facility and a recipient
  3. Any sexual contact or sexual penetration involving an employee, volunteer, or agent of a provider and a recipient for whom the employee, volunteer, or agent provides direct services.

Sexual Contact

Sexual contact is the intentional touching or penetration of a recipient’s or employee’s intimate parts, or the touching of the clothing covering the immediate area of the recipient’s or employee’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual manner for any of the following:

  1. Revenge.
  2. To inflict humiliation.
  3. Out of anger.

Sexual Penetration

Means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of a recipient's body, but emission of semen is not required.

Sexual Harassment

Sexual advances toward a recipient, requests for sexual favors from a recipient, or other conduct or communication of a sexual nature toward a recipient.

Therapeutic De-Escalation

An intervention, the implementation of which is incorporated in the individualized written plan of service, wherein the recipient is placed in an area or room, accompanied by staff who shall therapeutically engage the recipient in behavioral de-escalation techniques and debriefing as to the cause and future prevention of the target behavior

Unreasonable Force

Physical management or force that is applied by an employee, volunteer, or agent of a provider to a recipient in one or more of the following circumstances:

  1. There is no imminent risk of serious or non-serious physical harm to the recipient, staff, or others.
  2. The physical management used is not in compliance with techniques approved by the provider and the responsible mental health agency.
  3. The physical management used is not in compliance with the emergency interventions authorized in the recipient’s individual plan of service.
  4. The physical management or force is used when other less restrictive measures were possible but not attempted immediately before the use of physical management or force.

Volunteer

An individual who, without compensation, other than reimbursement for expenses, performs activities for the department, a facility, or a community mental health services program, or an entity under contract to the department, a facility, or a community mental health services program under specified conditions.

Vulnerable Adult Abuse; first degree; second degree; third degree; fourth degree; authority to prevent vulnerable adult from being harmed or harming others not prohibited; applicability of section to act carried out by patient advocate.

Sec. 145n.

A.A caregiver is guilty of Vulnerable Adult Abuse in the first degree if the caregiver intentionally causes serious physical harm or serious mental harm to a vulnerable adult. Vulnerable Adult Abuse in the first degree is a felony punishable by imprisonment for not more than 15 years or a fine of not more than $10,000.00, or both.

B.A caregiver, or other person, with authority over the vulnerable adult is guilty of Vulnerable Adult Abuse in the second degree if the reckless act, or reckless failure to act, of the caregiver or other person with authority over the vulnerable adult cause’s serious physical harm or serious mental harm to a vulnerable adult. Vulnerable Adult Abuse in the second degree is a felony punishable by imprisonment for not more than 4 years or a fine of not more than $5,000.00, or both.

C.A caregiver is guilty of Vulnerable Adult Abuse in the third degree if the caregiver intentionally causes physical harm to a vulnerable adult. Vulnerable Adult Abuse in the third degree is a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,500.00, or both.

D.A caregiver, or other person, with authority over the vulnerable adult is guilty of Vulnerable Adult Abuse in the fourth degree if the reckless act, or reckless failure to act, of the caregiver or other person with authority over a vulnerable adult cause’s physical harm to a vulnerable adult. Vulnerable Adult Abuse in the fourth degree is a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both.

E.This section does not prohibit a caregiver or other person with authority over a vulnerable adult from taking reasonable action to prevent a vulnerable adult from being harmed or from harming others.

F.This section does not apply to an act, or failure to act, that is carried out as directed by a patient advocate under a Patient Advocate Designation executed in accordance with sections 5506 to 5512 of the estates and protected individuals code, 1998 PA 386, MCL 700.5506 to 700.5512.

History: Add. 1994, Act 149, Eff. Oct. 1, 1994; - -Am. 2000, Act 66, Eff. Apr. 1, 2000.

© 2003 Legislative Council, State of Michigan

Child Abuse as defined by Section 136b of the Michigan Penal Code

A.As used in this section:

1.”Child” means a person who is less than 18 years of age and is not emancipated by the operation of law as provided in section 4(1) of Act 293 of the Public Acts of 1968, being section 722.4 of the Michigan Compiled Laws.

2.”Omission” means a willful failure to provide the food, clothing, or other shelter necessary for a child’s welfare, or the willful abandonment of a child.

3.”Person” means a child’s parent or guardian or any other person who cares for, or has custody of, or has authority over a child regardless of the length of time that a child is cared for, in the custody of, or subject to the authority of that person.

4.”Physical harm” means any injury to a child’s physical condition.

5.”Serious physical harm” means an injury of the child’s physical condition or welfare that is not necessarily permanent but constitutes substantial bodily disfigurement, or seriously impairs the function of a body organ or limb.

6.”Serious mental harm” means an injury to a child’s mental condition or welfare that is not necessarily permanent but results in visibly demonstrable manifestations of a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.

B.A person is guilty of child abuse in the first degree if a person knowingly or intentionally causes serious physical or serious mental harm to a child. Child abuse in the first degree is a felony punishable by imprisonment for not more than 15 years.

C.A person is guilty of child abuse in the second degree if the person’s omission causes serious physical or serious mental harm to a child or if the person’s reckless act causes serious physical harm to a child. Child abuse in the second degree is a felony punishable by imprisonment for not more than 4 years.

D.A person is guilty of child abuse in the third degree if the person knowingly or intentionally causes physical harm to a child. Child abuse in the third degree is a misdemeanor punishable by imprisonment for not more than 2 years.

E.A person is guilty of child abuse in the fourth degree if the person’s omission or reckless act causes physical harm to a child. Child abuse in the fourth degree is a misdemeanor punishable by imprisonment for not more than 1 year.

F.This section shall not be construed to prohibit a parent or guardian, or other person permitted by law, or authorized by the parent or guardian, from taking steps to reasonably discipline a child, including the use of reasonable force.

PROCEDURE

I.All staff, volunteers, students and interns of contracted or directly operated programs of CMHSAS-SJC who have reasonable cause to suspect the abuse or neglect of an individual receiving services of CMHSAS-SJC shall immediately make a verbal report of the suspected abuse or neglect to:
  1. CMHSAS-SJC-ORR
  1. DHS Protective Services
  1. Local Law enforcement in cases of Criminal Abuse including Vulnerable Adult Abuse and Child Abuse, if the alleged suspected criminal abuse was:

1.Caused by a mental health professional.

  1. Committed in a CMHSAS-SJC-funded services program/agency, unless:

a.The suspected criminal abuse has already been reported to the appropriate law enforcement agency.

b.The suspected criminal abuse occurred more than 1 year before the date on which it first became known to an individual who would otherwise be required to make a report

  1. A written report on the required form to law enforcement will follow the verbal report within 72 hours by the person making the verbal report. The written report shall contain:

a.The name of the recipient.

  1. A description of the criminal abuse.
  2. Other information that might establish the cause of the criminal abuse and the manner in which it occurred.
  1. The written report will be made part of the recipient’s clinical record.

Before the report becomes part of the recipient’s clinical record, the names of the reporting individual and the accused individual will be deleted.

D.CMHSAS-SJC-ORR will notify CMHSAS-SJC Administration of reports of suspected abuse or neglect received by CMHSAS-SJC-ORR.

II.All staff, volunteers or interns of contracted or directly operated programs of CMHSAS-SJC who suspect abuse or neglect:
  1. Will file an Incident and Accident (I&A) Report, and will comply with CMHSAS-SJC procedure titled "Incident and Accident Reporting".
  1. May file a recipient rights complaint of suspected abuse/neglect, subsequent to required reporting of the abuse/neglect.
  1. Will cooperate with the investigation of abuse and neglect conducted by the CMHSAS-SJC-ORR and with other mandated investigative bodies such as APS/CPS.
  1. Staff who are acting in good faith and that make a report of criminal abuse shall not be dismissed or otherwise penalized for making the report (an individual who knowingly makes a false report to law enforcement is guilty of a misdemeanor).
III.Supervisory Staff
  1. Will ensure that appropriate disciplinary action is taken against those staff who have engaged in abuse or neglect of recipients. Based upon substantiated reports, this action may include official reprimand, demotion, suspension, reassignment or dismissal.
  1. Will cooperate in the prosecution of appropriate criminal charges against those who have engaged in unlawful abuse.
  1. For substantiated rights violations , will take remedial actions which:

1.Corrects or provides remedy for the rights violation

  1. Is implemented in a timely manner
  2. Attempts to prevent a recurrence of the rights violation
IV.The CMHSAS-SJC-ORR shall initiate investigation of apparent or suspected rights violations in a timely and efficient manner. Subject to delays involving pending action by external agencies, the office shall complete the investigation not later than 90 days after it receives the rights complaint. Investigation shall be initiated immediately in cases involving alleged abuse, neglect, serious injury, or death of a recipient involving an apparent or suspected rights violation.
V.A recipient of mental health services who is abused or neglected has a right to pursue injunctive and other appropriate relief.

REFERENCES

-DHHS Administrative Rules: R330.7035

-PA 238 of 1975

-PA 258 of 1974 (Mental Health Code), supplemented through Act 152 of 1996: Sections 722 and 723

-PA 519 of 1982

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