Daily Decisions: Neglect of a Vulnerable Adult

Resa Raven v. Department of Social & Health Services (Division 2, March 27, 2012), is a quite sad case involving the neglect and death of Ida in 2007 (because of privacy laws, the Court only gives Ida’s first name).

Under the Abuse of Vulnerable Adults Act, RCW ch. 74.34, the Department of Social and Health Services (“DSHS”) must “investigate allegations of abandonment, abuse, exploitation, and neglect of vulnerable adults,” with a “vulnerable adult” being “a person over the age of 60 who lacks the functional, mental, or physical ability to care for herself.”

Ida was a vulnerable adult.  Accordingly, after some initial judicial proceedings, the Superior Court appointed Resa Raven (a licensed mental health counselor) as Ida’s “limited guardian” in 2004.  “The trial court gave Raven authority to (1) consent to or refuse medical treatment and (2) decide who would provide care and assistance.”

The Court of Appeals explained Raven’s duty to Ida:

A court-appointed guardian owes a duty of care to her ward.  RCW 11.92.043(4).  Specifically, a guardian has a duty “to care for and maintain the incapacitated person in the setting least restrictive to the incapacitated person’s freedom and appropriate to the incapacitated person’s personal care needs, [and to] assert the incapacitated person’s rights and best interests.” RCW 11.92.043(4).

Raven claimed that to establish neglect under the statute, the DSHS had to show that Raven’s alleged neglect actually caused some harm to Ida.  The Court of Appeals disagreed:

The Act requires DSHS to prove a pattern of conduct resulting in a deprivation of care. But it plainly does not require DSHS to prove that such pattern of conduct caused Ida harm or that if Raven had offered an alternative care plan, Ida would have accepted it.

The underlying facts clearly established that Ida’s care was extremely difficult. She suffered from dementia, often refused care, and had an uncooperative and unhelpful family.  The Court recognized these factors, but concluded that they did not save Raven from a finding of neglect:

We agree that Ida’s case presented difficult problems. . . . Raven’s obstacle argument frustrates the very purpose of her appointment as Ida’s guardian.  When Raven reached the conclusion that obstacles were beyond her control, she should have stepped aside.  We are satisfied that the Board did not err in finding this two-and-a-half year pattern of inaction to be neglect.

Lastly, Raven argued that because DSHS’s finding of neglect affected the use of her counseling license, then the Due Process Clause was implicated by the proceeding.  In other words, the finding deprived her of a property interest, and she was therefore entitled to due process.

The Court seemed somewhat sympathetic to Raven’s argument, but noted that “[b]ased on the record, however, it is not clear whether this would entirely prohibit Raven from using her license or whether it would merely preclude her from working in one sector of the industry.”  Accordingly, the negative implication is that if the finding of neglect did entirely prohibit Raven from using her license, then the DPC would have been implicated.  Based on the Court’s discussion of the issue, application of the DPC might then have required a heightened burden on the DSHS — from “preponderance of the evidence” to “clear, cogent, and convincing evidence.”  But the DPC was not implicated, so the use of the “preponderance” burden was just fine.