PROSECUTION OF NEGLECTFUL CAREGIVERS

1. PROSECUTION OF NEGLECTFUL CAREGIVERS Amy Sweasy, Sr. Asst. Henn. Co. Atty Randy Thomas, Contributor

2. Framework for Investigations Physical Evidence Witnesses Confessions

3. Investigative Goals WHAT HOW

4. Burden of Proof Beyond a reasonable doubt Probable cause Reasonable suspicion

5. What is Neglect?

6. Randy Thomas (C) 2012

7. Randy Thomas (C) 2012

8. Case Information • Victim: Female, Age 91 • Suspects: Daughter, Son, Daughter-In-Law • Location: Son’s Home • Cause of Death: Severe malnutrition and sepsis Randy Thomas (C) 2012

9. Suspect’s Statements Daughter: She didn’t know about the bedsores (Primary caregiver). Son: “I checked her 3 or 4 times a week” Daughter-In-Law: She would look-in when Mildred was absent. Randy Thomas (C) 2012

10. What are the Key Elements? • 609.233 CRIMINAL NEGLECT. • Subdivision 1.Gross misdemeanor crime. • A caregiver or operator who intentionally neglects a vulnerable adult or knowingly permits conditions to exist that result in the abuse or neglect of a vulnerable adult is guilty of a gross misdemeanor. For purposes of this section, "abuse" has the meaning given in section 626.5572, subdivision 2, and "neglect" means a failure to provide a vulnerable adult with necessary food, clothing, shelter, health care, or supervision.

11. How Does it Look?

13. Case Building • Match the facts presented with the elements of the crime • Medical evidence is often the key • Compare suspect’s explanation with the known facts • Educate other professionals • Seek experts

14. CRIMINAL NEGLECTMINN. STAT. 609.233EFFECTIVE AUGUST 1, 2012

15. MINN. STAT. 609.233, SUBD. 2a • Leaves existing GM neglect crime • Adds felony deprivation crime • Establishes additional penalties • Adds three affirmative defenses

16. VULNERABLE ADULT ACT 1995

17. VULNERABLE ADULT ACT 1995 • Civil protections for vulnerable adult issues • Passed criminal abuse misdemeanor and felony offenses • Passed neglect – gross misdemeanor only

18. GM NECLECT CASES 2000-2012 • 111 complaints filed statewide • 34 involving substantial bodily harm, great bodily harm or death • Fractures • Sores • Unsanitary conditions • Starvation/dehydration

19. GM NEGLECT CASES 2000-2012 • Penalties • Little to no jail time • Certification to petty misdemeanor • Fines ranging $100-200

20. ATTEMPTING TO ENACT A FELONY • 1995-2011 • Adding “substantial bodily harm” and “great bodily harm” provisions to existing GM statute • Clean, logical solution

22. OPPOSTION TO FELONY LEGISLATION • No opposition to GM statute, only felony

23. GM Neglect – No Change • Subdivision 1. Gross misdemeanor crime. • Caregiver or operator • Intentionally neglects a vulnerable adult/knowingly permits conditions to exist that result in the abuse or neglect of a vulnerable adult • “Abuse” has the meaning given in section 626.5572, subdivision 2 • “Neglect” • failure to provide a vulnerable adult with: • necessary food • clothing • shelter • health care, or • supervision

24. DEPRIVATION – ANATOMY OF A TITLE • Provider concerns over “neglect”/lack of intent • Legislator concerns about similarity to civil neglect • Desire to categorize felony as significantly more serious than the GM

25. FELONY DEPRIVATION • Subd. 1a. Felony deprivation: • caregiver or operator • intentionally deprives a vulnerable adult of necessary food, clothing, shelter, health care, or supervision • caregiver or operator is reasonably able to make the necessary provisions • guilty of a felony if: • (1) the caregiver or operator knows or has reason to know the deprivation could likely result in substantial bodily harm or great bodily harm to the vulnerable adult; or • (2) the deprivation occurred over an extended period of time.

26. FELONY DEPRIVATION • (1) the caregiver or operator knows or has reason to know the deprivation could likely result in substantial bodily harm or great bodily harm to the vulnerable adult; or • “could likely result?” • captures single-incident deprivation • (2) the deprivation occurred over an extended period of time • “extended period of time” = undefined, depends on circumstances • captures substantial/great bodily harm from ongoing deprivation

27. PENALTIES • Subd. 2a. Penalties. • Great bodily harm = ten years/$10,000, or both; or • Substantial bodily harm = five years/$5,000, or both.

28. CASES RESULTING IN DEATH • No provision in deprivation law • Homicide statutes • Second-degree unintentional murder in the course of a felony (inherently dangerous to human life)

29. SENTENCING GUIDELINES • Substantial bodily harm: Level IV • Great bodily harm: Level VIII • Aligns with malicious punishment • Child neglect (no harm): Level I

30. EXEMPTIONS IN EXISTING LAW • Unchanged • Withdrawal of consent to therapeutic conduct within “boundary of reasonable medical practice.” • Selection of spiritual means/prayer in lieu of medical care • Pre-existing sexual relationship with facility staff • Sexual relationship with PCA, regardless of when it began

31. AFFIRMATIVE DEFENSES • Burden of Production • Burden of Proof • DISPROVE Affirmative Defense Beyond a Reasonable doubt • Also applies to GM crime

32. AFFIRMATIVE DEFENSES • Different from exemptions • Can be raised throughout proceedings: • Investigation • Charging • After charging – motion to dismiss • At trial: • Defense burden of production • Jury instruction

33. AFFIRMATIVE DEFENSE #1 • If proven by a preponderance of evidence, that: • defendant is employed by a facility or operator and • does not have managerial or supervisory authority, and • was unable to reasonably make the necessary provisions because of inadequate staffing levels, inadequate supervision, or institutional policies; • “I wanted to, but I don’t have the resources to adequately do my job and there is proof of that.”

34. AFFIRMATIVE DEFENSE #2 • If proven by a preponderance of evidence, that: • defendant is a facility, an operator, or an employee of a facility or operator in a position of managerial or supervisory authority and • did not knowingly, intentionally, or recklessly permit criminal acts by its employees or agents that resulted in the harm to the vulnerable adult • “Rogue employee”

35. AFFIRMATIVE DEFENSE #3 • If proven by a preponderance of evidence, that: • defendant is a caregiver • failed to perform acts necessary to prevent the harm, if any, to the vulnerable adult • because the caregiver was acting reasonably and necessarily to provide care to another identified vulnerable adult. • “Triage”

36. AFFIRMATIVE DEFENSE • For these affirmative defenses, a defendant bears only the burden of production. A defendant's failure to meet the burden of production does not relieve the state of its burden of persuasion as to all elements of the offense. • Why is this here? • “This page intentionally left blank.”