BILL NUMBER: AB 1652 CHAPTERED 10/11/93 BILL TEXT CHAPTER 992 FILED WITH SECRETARY OF STATE OCTOBER 11, 1993 APPROVED BY GOVERNOR OCTOBER 9, 1993 PASSED THE ASSEMBLY SEPTEMBER 2, 1993 PASSED THE SENATE AUGUST 27, 1993 AMENDED IN SENATE AUGUST 24, 1993 AMENDED IN SENATE AUGUST 17, 1993 AMENDED IN SENATE JUNE 28, 1993 AMENDED IN ASSEMBLY MAY 5, 1993 AMENDED IN ASSEMBLY APRIL 15, 1993 INTRODUCED BY Assembly Member Speier MARCH 4, 1993 An act to amend Section 11162 of, to amend the heading of Article 2 (commencing with Section 11160) of Title 1 of Part 4 of, to add Sections 11161.9, 11162.5, 11162.7, 11163, and 11163.2 to, and to repeal and add Sections 11160 and 11161 of, the Penal Code, relating to reports of injuries. LEGISLATIVE COUNSEL'S DIGEST AB 1652, Speier. Injuries related to criminal conduct: reports. Existing law requires every person, firm, or corporation conducting a hospital or pharmacy to report to specified law enforcement officers, as specified, the arrival of any person to the facility who is suffering from any wound or other injury inflicted by his own act or by the act of another by means of a knife, gun, pistol, or other deadly weapon, or in cases where injuries have been inflicted in violation of any penal law of the state. This bill would, instead, require any health practitioner, as defined, employed in a health facility or clinic, as defined, or physician's office who, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a patient who he or she knows or reasonably suspects has suffered from any wound or injury inflicted as described above, or any wound or physical injury inflicted on the person as a result of assaultive or abusive conduct, as defined, to report to a law enforcement agency, as specified. Existing law requires every physician or surgeon who has under his or her charge or care any person suffering from a specified wound or injury to report to specified law enforcement officers. Existing law, for specified purposes, includes a physician or surgeon within the definition of a health practitioner. This bill would revise the reporting requirements of a physician or surgeon under these provisions to conform to changes made by this bill. The bill also would recommend that any medical records include a copy of the law enforcement reporting form, documentation of past references by the domestic violence victim in his or her medical records, and a map of his or her body identifying injuries and bruises in the medical records. The bill would recommend that the physician or surgeon make referrals to local domestic violence services. Existing law makes it a misdemeanor to violate any of the above provisions, punishable by imprisonment in a county jail not exceeding 6 months, by a fine not exceeding $500, or by both. This bill would increase the fine under this provision to a fine not exceeding $1,000. This bill, in addition, among other things, would provide civil and criminal immunity, as specified, for a health practitioner who makes any required or authorized report pursuant to these provisions regarding reporting injuries to local law enforcement and would allow the presentation of claims to the State Board of Control for reasonable attorney's fees not exceeding $50,000 incurred in any action brought against any person on the basis of his or her making a report if the person prevails in the action. This bill would impose a state-mandated local program by increasing the duties of local public officials, and by changing the definition of a crime. Under existing law, the Child Abuse and Neglect Reporting Act requires specified persons to report known or suspected instances of child abuse, as specified, and the Elder Abuse and Dependent Adult Civil Protection Act requires specified persons to report elder or dependent adult abuse, as specified. This bill would provide that the reporting requirements proposed by this bill shall not apply when a report is required pursuant to these acts. Existing law, except as specified, provides for the privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and physician and between patient and psychotherapist under specified conditions. This bill would provide that these privileges shall not apply in any court proceeding or administrative hearing with regard to the information related to specified injuries that a health practitioner is required to report as proposed by this bill. This bill also would provide specified provisions regarding the confidentiality of, and restricted access to, reports required by this bill. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that for certain costs no reimbursement is required by this act for a specified reason. However, the bill would provide that, if the Commission on State Mandates determines that this bill contains other costs mandated by the state, reimbursement for those costs shall be made pursuant to those statutory procedures and, if the statewide cost does not exceed $1,000,000, shall be made from the State Mandates Claims Fund. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The heading of Article 2 (commencing with Section 11160) of Title 1 of Part 4 of the Penal Code is amended to read: Article 2. Reports of Injuries SEC. 2. Section 11160 of the Penal Code is repealed. SEC. 3. Section 11160 is added to the Penal Code, to read: 11160. (a) Any health practitioner employed in a health facility, clinic, or physician's office who has knowledge of, or observes, in his or her professional capacity or within the scope of his or her employment, a patient whom he or she knows or reasonably suspects is a person described as follows, shall immediately make a report in accordance with subdivision (b): (1) Any person suffering from any wound or other injury inflicted by his or her own act or inflicted by another where the injury is by means of a knife, firearm, or other deadly weapon. (2) Any person suffering from any wound or other physical injury inflicted upon the person where the injury is the result of assaultive or abusive conduct. (b) Any health practitioner employed in a health facility, clinic, or physician's office shall make a report regarding persons described in subdivision (a) to a local law enforcement agency as follows: (1) A report by telephone shall be made immediately or as soon as practically possible. (2) A written report shall be prepared and sent to a local law enforcement agency within two working days of receiving the information regarding the person. (3) A local law enforcement agency shall be notified and a written report shall be prepared and sent pursuant to paragraphs (1) and (2) even if the person who suffered the wound, other injury, or assaultive or abusive conduct has expired, regardless of whether or not the wound, other injury, or assaultive or abusive conduct was a factor contributing to the death, and even if the evidence of the conduct of the perpetrator of the wound, other injury, or assaultive or abusive conduct was discovered during an autopsy. (4) The report shall include, but shall not be limited to, the following: (A) The name of the injured person, if known. (B) The injured person's whereabouts. (C) The character and extent of the person's injuries. (D) The identity of any person the injured person alleges inflicted the wound, other injury, or assaultive or abusive conduct upon the injured person. (c) For the purposes of this section, "injury" shall not include any psychological or physical condition brought about solely through the voluntary administration of a narcotic or restricted dangerous drug. (d) For the purposes of this section, "assaultive or abusive conduct" shall include any of the following offenses: (1) Murder, in violation of Section 187. (2) Manslaughter, in violation of Section 192 or 192.5. (3) Mayhem, in violation of Section 203. (4) Aggravated mayhem, in violation of Section 205. (5) Torture, in violation of Section 206. (6) Assault with intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220. (7) Administering controlled substances or anesthetic to aid in commission of a felony, in violation of Section 222. (8) Battery, in violation of Section 242. (9) Sexual battery, in violation of Section 243.4. (10) Incest, in violation of Section 285. (11) Throwing any vitriol, corrosive acid, or caustic chemical with intent to injure or disfigure, in violation of Section 244. (12) Assault with a stun gun or taser, in violation of Section 244.5. (13) Assault with a deadly weapon, firearm, assault weapon, or machine gun, or by means likely to produce great bodily injury, in violation of Section 245. (14) Rape, in violation of Section 261. (15) Spousal rape, in violation of Section 262. (16) Procuring any female to have sex with another man, in violation of Section 266, 266a, 266b, or 266c. (17) Child abuse or endangerment, in violation of Section 273a or 273d. (18) Abuse of spouse or cohabitant, in violation of Section 273.5. (19) Sodomy, in violation of Section 286. (20) Lewd and lascivious acts with a child, in violation of Section 288. (21) Oral copulation, in violation of Section 288a. (22) Genital or anal penetration by a foreign object, in violation of Section 289 or 289.5. (23) Elder abuse, in violation of Section 368. (24) An attempt to commit any crime specified in paragraphs (1) to (23), inclusive. (e) When two or more persons who are required to report are present and jointly have knowledge of a known or suspected instance of violence that is required to be reported pursuant to this section, and when there is an agreement among these persons to report as a team, the team may select by mutual agreement a member of the team to make a report by telephone and a single written report, as required by subdivision (b). The written report shall be signed by the selected member of the reporting team. Any member who has knowledge that the member designated to report has failed to do so shall thereafter make the report. (f) The reporting duties under this section are individual, except as provided in subdivision (e). (g) No supervisor or administrator shall impede or inhibit the reporting duties required under this section and no person making a report pursuant to this section shall be subject to any sanction for making the report. However, internal procedures to facilitate reporting and apprise supervisors and administrators of reports may be established, except that these procedures shall not be inconsistent with this article. The internal procedures shall not require any employee required to make a report under this article to disclose his or her identity to the employer. (h) For the purposes of this section, it is the Legislature's intent to avoid duplication of information. SEC. 4. Section 11161 of the Penal Code is repealed. SEC. 5. Section 11161 is added to the Penal Code, to read: 11161. Notwithstanding Section 11160, the following shall apply to every physician or surgeon who has under his or her charge or care any person described in subdivision (a) of Section 11160: (a) The physician or surgeon shall make a report in accordance with subdivision (b) of Section 11160 to a local law enforcement agency. (b) It is recommended that any medical records of a person about whom the physician or surgeon is required to report pursuant to subdivision (a) include the following: (1) Any comments by the injured person regarding past domestic violence, as defined in Section 13700, or regarding the name of any person suspected of inflicting the wound, other physical injury, or assaultive or abusive conduct upon the person. (2) A map of the injured person's body showing and identifying injuries and bruises at the time of the health care. (3) A copy of the law enforcement reporting form. (c) It is recommended that the physician or surgeon refer the person to local domestic violence services if the person is suffering or suspected of suffering from domestic violence, as defined in Section 13700. SEC. 6. Section 11161.9 is added to the Penal Code, to read: 11161.9. (a) A health practitioner who makes a report in accordance with this article shall not incur civil or criminal liability as a result of any report required or authorized by this article. (b) (1) No person required or authorized to report pursuant to this article, or designated by a person required or authorized to report pursuant to this article, who takes photographs of a person suspected of being a person described in this article about whom a report is required or authorized shall incur any civil or criminal liability for taking the photographs, causing the photographs to be taken, or disseminating the photographs to local law enforcement with the reports required by this article in accordance with this article. However, this subdivision shall not be deemed to grant immunity from civil or criminal liability with respect to any other use of the photographs. (2) A court may award attorney's fees to a commercial film and photographic print processor when a suit is brought against the processor because of a disclosure mandated by this article and the court finds that the suit is frivolous. (c) A health practitioner who, pursuant to a request from an adult protective services agency or a local law enforcement agency, provides the requesting agency with access to the victim of a known or suspected instance of abuse shall not incur civil or criminal liability as a result of providing that access. (d) No employee shall be discharged, suspended, disciplined, or harassed for making a report pursuant to this section. (e) This section does not apply to mandated reporting of child abuse, as provided for in Article 2.5 (commencing with Section 11164). SEC. 7. Section 11162 of the Penal Code is amended to read: 11162. A violation of this article is a misdemeanor, punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment. SEC. 8. Section 11162.5 is added to the Penal Code, to read: 11162.5. As used in this article, the following definitions shall apply: (a) "Health practitioner" has the same meaning as provided in Section 11165.8. (b) "Clinic" is limited to include any clinic specified in Sections 1204 and 1204.3 of the Health and Safety Code. (c) "Health facility" has the same meaning as provided in Section 1250 of the Health and Safety Code. (d) "Reasonably suspects" means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect. SEC. 9. Section 11162.7 is added to the Penal Code, to read: 11162.7. This article shall not apply when a report is required to be made pursuant to the Child Abuse and Neglect Reporting Act (Article 2.5 (commencing with Section 11164)), and Chapter 11 (commencing with Section 15600) of Part 3 of Division 9 of the Welfare and Institutions Code. SEC. 10. Section 11163 is added to the Penal Code, to read: 11163. (a) The Legislature finds and declares that even though the Legislature has provided for immunity from liability, pursuant to Section 11161.9, for persons required or authorized to report pursuant to this article, that immunity does not eliminate the possibility that actions may be brought against those persons based upon required reports of abuse pursuant to other laws. In order to further limit the financial hardship that those persons may incur as a result of fulfilling their legal responsibility, it is necessary that they not be unfairly burdened by legal fees incurred in defending those actions. (b) (1) Therefore, a health practitioner may present a claim to the State Board of Control for reasonable attorney's fees incurred in any action against that person on the basis of that person reporting in accordance with this article if the court dismisses the action upon a demurrer or motion for summary judgment made by that person or if that person prevails in the action. (2) The State Board of Control shall allow the claim pursuant to paragraph (1) if the requirements of paragraph (1) are met, and the claim shall be paid from an appropriation to be made for that purpose. Attorney's fees awarded pursuant to this section shall not exceed an hourly rate greater than the rate charged by the Attorney General at the time the award is made and shall not exceed an aggregate amount of fifty thousand dollars ($50,000). (3) This subdivision shall not apply if a public entity has provided for the defense of the action pursuant to Section 995 of the Government Code. SEC. 11. Section 11163.2 is added to the Penal Code, to read: 11163.2. (a) In any court proceeding or administrative hearing, neither the physician-patient privilege nor the psychotherapist privilege applies to the information required to be reported pursuant to this article. (b) The reports required by this article shall be kept confidential by the health facility, clinic, or physician's office that submitted the report, and by local law enforcement agencies, and shall only be disclosed by local law enforcement agencies to those involved in the investigation of the report or the enforcement of a criminal law implicated by a report. In no case shall the person suspected or accused of inflicting the wound, other injury, or assaultive or abusive conduct upon the injured person or his or her attorney be allowed access to the injured person's whereabouts. (c) For the purposes of this article, reports of suspected child abuse and information contained therein may be disclosed only to persons or agencies with whom investigations of child abuse are coordinated under the regulations promulgated under Section 11174. (d) The Board of Prison Terms may subpoena reports that are not unfounded and reports that concern only the current incidents upon which parole revocation proceedings are pending against a parolee. SEC. 12. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution for those costs that may be incurred by a local agency or school district that will be incurred because this act creates a new crime or infraction, changes the definition of a crime or infraction, changes the penalty for a crime or infraction, or eliminates a crime or infraction. However, notwithstanding Section 17610 of the Government Code, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund. Notwithstanding Section 17580 of the Government Code, unless otherwise specified in this act, the provisions of this act shall become operative on the same date that the act takes effect pursuant to the California Constitution.