Are police officers or emergency medical workers caregivers under South Carolina's adult protection law?

Plain-English summary

In 2019, the South Carolina Attorney General was asked whether police and emergency medical personnel became “caregivers” under the Omnibus Adult Protection Act while a vulnerable adult was in their custody or care. The office declined to give a blanket answer. The Act defined a caregiver broadly by whether a person provided care, and the answer for an individual responder depended on the facts.

The AG observed, without resolving a particular case, that police officers typically did not provide care in the sense contemplated by the Act while performing ordinary law enforcement duties. It described the Act's caregiver examples as people normally in a caregiving relationship. The opinion also noted that the Act assigned law enforcement a role in protecting vulnerable adults and investigating reports.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did custody of a vulnerable adult automatically make a police officer a caregiver?
A: No blanket classification was given. The AG said the question depended on whether the officer actually provided care under the statutory definition.

Q: Did the opinion exclude emergency medical workers from the definition?
A: No. It said their status, like an officer's, required a case-specific factual determination.

Q: What kind of people did the statute list as caregivers?
A: The opinion quoted examples including relatives, household members, day-care personnel, foster home sponsors, and institutional staff. It stressed that the list was not exhaustive.

Q: Did the AG decide whether a specific responder neglected a vulnerable adult?
A: No. The office supplied the legal framework and said it could not resolve the facts of an individual incident.

Background and statutory framework

The request came from a state senator. The opinion compared the Act's broad definition of caregiver with its definition of neglect and with provisions describing law enforcement's protective role. It stopped short of applying those provisions to any named incident.

Citations and references

• S.C. Code Ann. § 43-35-10(2): caregiver definition.
• S.C. Code Ann. § 43-35-10(6): neglect definition.

Official title

On whether law enforcement and emergency medical personnel are considered "caregivers" under the Omnibus Adult Protection Act.

Requester

The Honorable Katrina F. Shealy, Member, South Carolina Senate.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-28-2019-4/
• Original PDF: https://www.scag.gov/wp-content/uploads/2019/07/ShealyK-OS-10366-FINAL-Opinion-6-28-2019-02008785xD2C78-02013955xD2C78.pdf

Original opinion text

Alan Wilson
ATTORNEY GENERAL

June 28, 2019

The Hon. Katrina F. Shealy
South Carolina Senate District 23
PO Box 142

Columbia, SC 29202

Dear Senator Shealy:

We received your request seeking an opinion on whether law enforcement and emergency medical personnel are considered "caregivers" under the Omnibus Adult Protection Act. This opinion sets out our Office's understanding of your question and our response. Issue (as quoted from your letter):

I am writing to request an Attorney General's opinion on whether law enforcement and emergency medical personnel are to be considered caregivers under the Omnibus Adult Protection Act while a vulnerable adult is in their

custody or care.

Under SC Code § 43-35-10(2)"Caregiver" means a person who provides care to a vulnerable adult, with or without compensation, on a temporary or permanent or full or part-time basis and includes, but is not limited to, a relative, a household member, day care personnel, adult foster home sponsor, and personnel of a public or private institution or facility. Law/Analysis:

The determination of whether a law enforcement officer or emergency medical personnel who provides care to a vulnerable adult falls within the statutory definition of a "caregiver" under the Omnibus Adult Protection Act(the "Act") is necessarily a fact-specific question which is beyond the scope of an opinion of this Office. See S.C. Code Ann. § 43-35-10(2) (2015). However, this opinion will provide you with some relevant law in order to be as responsive as possible to your question.

As stated in your letter. Section 43-35-10(2) defines a "caregiver" to mean:
[A] person who provides care to a vulnerable adult, with or without compensation, on a temporary or permanent or full or part-time basis and KjHNriiERTC. Dennis Building • Post Office Box. 11549 • Columbia,SC 29211-1549 • Telephone 803-734-3970 • Facsr^ile 803-253-6283

The Hon. Katrina F. Shealy
Page 2

June 28, 2019

includes, but is not limited to, a relative, household member, day care personnel, adult foster home sponsor, and personnel of a public or private institution or facility. S.C. Code Ann. § 43-35-10(2) (2015). This defined term is found in the statutory definition of neglect in Subsection 43-35-10(6): "Neglect" means the failure or omission of a caregiver to provide the care, goods, or services necessary to maintain the health or safety of a vulnerable adult including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services and the failure or omission has caused, or presents a substantial risk of causing, physical or mental injury to the vulnerable adult. Noncompliance

with regulatory standards alone does not constitute neglect. Neglect includes the

inability of a vulnerable adult, in the absence of a caretaker, to provide for his or her own health or safety which produces or could reasonably be expected to

produce serious physical or psychological harm or substantial risk of death. S.C. Code Ann. § 43-35-10(6) (2015) (emphasis added). Reported South Carolina cases construing the Adult Protection Act often have focused on

the definition of a "vulnerable adult," rather than the definition of a "caregiver." See, e.g., Doe v. S.C. Dep't of Social Services, 407 S.C. 623, 757 S.E.2d 712 (2014). As a matter of first impression, a court faced with the question presented in your letter would construe the meaning of Subsection 43-35-10(2) according to the rules of statutory construction to give effect to the intention of the Legislature in codifying the definition. In the words of the South Carolina Supreme Court,

The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature. Under the plain meaning rule, it is not the court's place to change the meaning of a clear and unambiguous statute. Where the statute's

language is plain and unambiguous, and conveys a clear and definite meaning, the rules of statutory interpretation are not needed and the court has no right to impose another meaning. What a legislature says in the text of a statute is

considered the best evidence of the legislative intent or will. Therefore, the courts

are bound to give effect to the expressed intent of the legislature. Hodges v. Rainey, 341 S.C.79, 85, 533 S.E.2d 578, 581 (2000) (internal citations and quotations omitted).

The Hon. Katrina F. Shealy
Page 3
June 28, 2019

Turning to the text of Section 43-35-10(2), the definition of a "caregiver" is inclusive of

specific categories but expressly does not limit the definition to those categories. S.C. Code Ann.

§ 43-35-10(2) (2015) ("includes, but is not limited to . . . ."). Moreover, this broad language does not contain any express exclusion. Id. We observe without opining that Subsection 43-35-10(2)

apparently was written with a variety of other caregiving situations in mind and almost certainly

was not primarily directed at law enforcement. Instead, we believe the General Assembly directed this provision of the Adult Protection Act primarily at "a relative, household member, day care personnel, adult foster home sponsor, and personnel of a public or private institution or

facility," meaning persons normally in a caregiving relationship as commonly understood. S.C. Code Ann. § 43-35-10(2) (2015). Conversely, we are not aware of any basis in the definitional

text to exclude otherwise-qualifying persons merely because they are also a law enforcement officer or emergency medical personnel. See id. However, the Omnibus Adult Protection Act also contains several provisions which demonstrate that the Act is not intended to alter or impede normal and appropriate law

enforcement activities. Foremost among these is Section 43-35-90, which specifies that "[t]his article is not intended to affect in any way the authority of any agency to act under state or federal law." S.C. Code Ann. § 43-35-90 (2015). The reference to "this article" contained in

Section 43-35-90 refers to Article 1 found in Chapter 35 of Title 43, which is the same article containing the definition of a "caregiver" and other related statutes discussed in this opinion. Cf. S.C. Code Ann. § 43-35-10 (2015).

Additionally, the Adult Protection Act contains a discreet code section which expressly

empowers law enforcement to take a vulnerable adult into protective custody under some circumstances. S.C. Code Ann. § 43-35-55 (2015). Section 43-35-55 reads in relevant part:

(A) A law enforcement officer may take a vulnerable adult in a lifethreatening situation into protective custody if: (1) there is probable cause to believe that by reason of abuse, neglect, or

exploitation there exists an imminent danger to the vulnerable adult's life or physical safety;

(2) the vulnerable adult or caregiver does not consent to protective custody; and

(3) there is not time to apply for a court order.
(B) When a law enforcement officer takes protective custody of a

vulnerable adult, the officer must transport the vulnerable adult to a place of

The Hon. Katrina F. Shealy
Page 4
June 28, 2019

safety which must not be a facility for the detention of criminal offenders or of persons accused of crimes. The Adult Protective Services Program has custody of the vulnerable adult pending the family court hearing to determine if there is probable cause for protective custody. (C) A vulnerable adult who is taken into protective custody by a law enforcement officer, may not be considered to have been arrested. (D) When a law enforcement officer takes protective custody of a

vulnerable adult under this section, the law enforcement officer must immediately

notify the Adult Protective Services Program and the Department of Social Services in the county where the vulnerable adult was situated at the time of being taken into protective custody. . . . S.C. Code Ann. § 43-35-55(A)-(D) (2015). Finally, the Act expressly permits law enforcement to share non-public information under certain circumstances in Section 43-35-60, which reads in full: Unless otherwise prohibited by law, a state agency, an investigative entity,

and law enforcement may share information related to an investigation conducted as a result of a report made under this chapter. Information in these investigative records must not be disclosed publicly. S.C. Code Ann. § 43-35-60 (2015).

We bring these statutes to your attention in order to be as responsive as possible to your question and also to clarify our belief that the statutory definition of a "caregiver" apparently was intended to cover a broad variety of caregiving situations and not specifically targeted at law enforcement officers. Instead, the Act anticipated that law enforcement would be an integral resource to protect a vulnerable adult once discovered. See S.C. Code Ann. § 43-35-55 (2015).

The responsibilities and limitations of law enforcement officers often are determined according to other bodies of law, such as constitutional limitations and qualified immunity. See, e.g.,

Childress v. City of Charleston Police Dep't, 2015 WL 5231625 (2015) (affirmed in part, vacated in part, remanded by Childress v. City of Charleston Police Dep't, 657 F.Appx 160

(2016)) (assessing the liability of municipal law enforcement officers on Fourth Amendment grounds and 42 U.S.C. § 1983 for taking plaintiff "into emergency protective custody against her will" pursuant to S.C. Code Ann. § 43-35-55 (2015)).

The Hon. Katrina F. Shealy
Page 5

June 28, 2019

Conclusion:

In conclusion, the determination of whether a law enforcement officer or emergency medical personnel who provides care to a vulnerable adult falls within the statutory definition of

a "caregiver" under the Omnibus Adult Protection Act (the "Act") is necessarily a fact-specific question which is beyond the scope of an opinion of this Office. See S.C. Code Ann. § 43-3510(2) (2015). For that reason, any particular case must be considered according to its individual facts and circumstances. However, this opinion has provided you with some relevant law in order to be as responsive as possible to your question. We observe without opining that law enforcement officers typically do not "provide care" in the course of their law enforcement duties as contemplated by S.C. Code Ann. § 43-35-10(2)

(2015). We believe the General Assembly directed the "caregiver" provisions of the Adult Protection Act primarily at "a relative, household member, day care personnel, adult foster home sponsor, and personnel of a public or private institution or facility," meaning persons normally in a caregiving relationship as commonly understood. See id.

Sincerely,

Djivid'S . Jones

Assistant Attorney
REVIE

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)AND APPROVED BY:

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Robert D. Cook

Solicitor General

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