Legal Issues in respect to Elder Abuse

Report
Judith Wahl
Advocacy Centre for the Elderly
[email protected]
www.acelaw.ca
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2 Carlton Street, Suite 701
Toronto, Ontario
M5B 1J3
Tel - 416-598-2656
Fax - 416-598-7924
Email
[email protected]
Website * www.acelaw.ca
To subscribe to ACE Newsletter list (Emailed twice a
year) please send email to [email protected]
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This is a challenging area on which to make a presentation
or to have a general discussion as there are many variables
in any fact situation
These materials should not be considered as legal advice
or as a comprehensive checklist of what can or should or
must be done in response to potential or actual abuse –
these materials were prepared for educational purposes
only and reflect the writer’s opinion and interpretation of
the legislation and outline matters to be considered
Not all the law/ all the possible remedies/ approaches to a
problem can be presented in this format. This is a
summary. As well, legislation may change therefore this
presentation is current as of February 2012.
Persons needing legal advice on specific cases should seek
assistance from their own legal counsel
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This presentation includes slides that reproduce the
FULL TEXT of sections in the legislation
This was done to provide the participants with the full
information so that you can see what the law exactly
states
In the oral presentation, these slides will be passed
through quickly, however were included so that all
participants have the details available for future
reference
The Power point will be available on BOTH the ONPEA
and ACE websites for downloading
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Reporting is Abuse is NOT the only answer to Elder Abuse
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What is Mandatory reporting
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Ontario Legislation that includes Reporting obligations or
options
◦ Long Terms Care Homes Act
◦ Retirement Homes Act
◦ Substitute Decisions Act
OTHER responses to abuse
◦ Prevention and response
◦ When senior is mentally capable
◦ If senior may not be mentally capable
◦ Why people may refuse help and possible options
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There are many different forms of elder abuse. There is no ONE
appropriate response to every incident of elder abuse.
There are many different ways of assisting people with elder
abuse issues depending on the facts of the particular case.
Reporting of abuse is NOT the only answer to abuse
The fact that there is no general law in Ontario requiring
mandatory reporting of elder abuse wherever it happens is not a
deterrent to response to abuse
There are other options to response depending on the facts of
the particular situation - in this presentation we will provide an
overview of types of responses both when the victim is mentally
capable or may be mentally incapable to make choices/ give
directions
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Even if reporting is required, reporting in and of
itself does not necessarily stop the abuse or
solve the problems that lead to the abuse
Reporting is not a guarantee that the abuse will
be confirmed, resolved, stopped
The obligations of the person making the report
do not necessarily end when the report is made.
The reporter may have other obligations after
making a report, such as giving assistance to the
alleged victim
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May be in a contract for services (agreement to inform a
third party)
May be a policy that is part of your employment (for
example, to report to a supervisor/ to person internal to
employer)
May be a professional responsibility or in a code of ethics
( for example – Regulated health professionals
required to report to professional College, sexual
abuse by another regulated health professional;
lawyers may breach confidentiality duty owed to client
in limited circumstances if a crime has or may occur)
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In general, mandatory reporting of abuse is a requirement,
in particular legislation, to report any incident of abuse (as
defined in that legislation) that you believe has occurred or
may occur to an individual.
That report is made to a particular third party
(person, agency, organization) as specified in that
legislation, to investigate the allegations/ suspicions of
abuse
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The particular legislation may also put other obligations
on the reporter and/or on the operator/ administrator of
the “institution” to also assist the senior (alleged victim)
directly, at the same time the report is made
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May be penalties for failure to report when
so obligated
May include whistle blowing protection to
protect those that do report in accordance
with the legislated obligation
Where there is a requirement for reporting,
there is no breach of privacy legislation if the
reports are made as required
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Where there is reporting, there may be no
requirement for the third party who received
the report and who does the investigation to
give details to the reporter about what
happened as a result of the report having
been given
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Duty to report
◦ in Child and Family Services Act if victim is a child in need
of protection
◦ in Long Term Care Homes Act if victim is a resident and
potential or suspected abuse/neglect as defined by that act
◦ in Retirement Homes Act if the victim is a tenant/resident
and potential abuse/neglect as defined by that act
◦ in the Criminal Code, no specific duty to report however
may voluntarily report crime/ suspicion of crime
◦ in Substitute Decisions Act, voluntary reporting options in
particular circumstances exist if victim is an adult that is
not mentally capable
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When does this duty apply ?
What must be reported?
Who has duty to report?
To whom must the report be made?
What else must be done besides making the
report?
What is the party reported to required to do?
What are the protections for the person
reporting?
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To access full text of legislation go to
http://www.e-laws.gov.on.ca
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LTC homes are licensed by MOHLTC to
provide long term care services to persons
eligible for LT care
LTC homes are operated both for profit and
non profit
LTC homes are a type of health care facility
LTC homes are regulated under LTC Homes
Act and are required to comply with
provisions of legislation and regulations
LTC homes are subject to inspection and
requirements for compliance by MOHLTC
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24. (1) A person who has reasonable grounds to suspect that any
of the following has occurred or may occur shall immediately
report the suspicion and the information upon which it is based
to the Director:
1. Improper or incompetent treatment or care of a resident that
resulted in harm or a risk of harm to the resident.
2. Abuse of a resident by anyone or neglect of a resident by the
licensee or staff that resulted in harm or a risk of harm to the
resident.
3. Unlawful conduct that resulted in harm or a risk of harm to a
resident.
4. Misuse or misappropriation of a resident’s money.
5. Misuse or misappropriation of funding provided to a licensee
under this Act or the Local Health System Integration Act,
2006.
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When victims/ potential victims are residents in a LTC Home licensed by
MOHLTC. See list of LTC Homes in Ministry of Health and LTC Homes
Website at http://publicreporting.ltchomes.net/
Also when there is actual or potential misuse or misappropriation of
funding provided to a long term care home licensee under this Act
or the Local Health System Integration Act. For this reporting this
may not involve a particular resident of the home but may be an
action of the administration/licensee, whatever activity by whomever
that is at the root of the actual or potential misuse or
misappropriation of funding etc. that is being reported
NOT only apply when residents are physically in the LTC home
FOR EXAMPLE - Applies if resident of LTC home has gone to hospital for
treatment and the persons providing care at hospital have reasonable
grounds to believe patient was victim of abuse/ neglect at LTC home
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Report required of both actual or potential of any of the below
1.
Improper or incompetent treatment or care of a resident that
resulted in harm or a risk of harm to the resident.
2.
Abuse of a resident by anyone or neglect of a resident by the
licensee or staff that resulted in harm or a risk of harm to the
resident.
3.
Unlawful conduct that resulted in harm or a risk of harm to a
resident.
4.
Misuse or misappropriation of a resident’s money.
5.
Misuse or misappropriation of funding provided to a licensee
under this Act or the Local Health System Integration Act, 2006.
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LTCHA 2. (1) In this Act,
“abuse”, in relation to a resident, means physical, sexual, emotional,
verbal or financial abuse, as defined in the regulations in each case;
LTCHA REGULATION
“Abuse” — definition
2. (1) For the purposes of the definition of “abuse” in subsection 2 (1) of the Act,
“emotional abuse” means,
(a) any threatening, insulting, intimidating or humiliating gestures, actions, behaviour or remarks,
including imposed social isolation, shunning, ignoring, lack of acknowledgement or infantilization
that are performed by anyone other than a resident, or
(b) any threatening or intimidating gestures, actions, behaviour or remarks by a resident that
causes alarm or fear to another resident where the resident performing the gestures, actions,
behaviour or remarks understands and appreciates their consequences;
“financial abuse” means any misappropriation or misuse of a resident’s money or property;
“physical abuse” means, subject to subsection (2),
(a) the use of physical force by anyone other than a resident that causes physical injury or pain,
(b) administering or withholding a drug for an inappropriate purpose, or
(c) the use of physical force by a resident that causes physical injury to another resident;
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LTCHA REGULATION S. 2(1)
“sexual abuse” means,
(a) subject to subsection (3), any consensual or non-consensual touching, behaviour or remarks of a
sexual nature or sexual exploitation that is directed towards a resident by a licensee or staff member,
or
(b) any non-consensual touching, behaviour or remarks of a sexual nature or sexual exploitation directed
towards a resident by a person other than a licensee or staff member;
“verbal abuse” means,
(a) any form of verbal communication of a threatening or intimidating nature or any form of verbal
communication of a belittling or degrading nature which diminishes a resident’s sense of well-being,
dignity or self-worth, that is made by anyone other than a resident, or
(b) any form of verbal communication of a threatening or intimidating nature made by a resident that leads
another resident to fear for his or her safety where the resident making the communication
understands and appreciates its consequences.
(2) For the purposes of clause (a) of the definition of “physical abuse” in subsection (1), physical abuse
does not include the use of force that is appropriate to the provision of care or assisting a resident with
activities of daily living, unless the force used is excessive in the circumstances.
(3) For the purposes of the definition of “sexual abuse” in subsection (1), sexual abuse does not include,
(a) touching, behaviour or remarks of a clinical nature that are appropriate to the provision of care or
assisting a resident with activities of daily living; or
(b) consensual touching, behaviour or remarks of a sexual nature between a resident and a licensee or
staff member that is in the course of a sexual relationship that began before the resident was admitted
to the long-term care home or before the licensee or staff member became a licensee or staff member.
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‘A person who has reasonable grounds to
suspect that any of the following (as listed
on previous slide) has occurred or may
occur”
So its ANYONE and EVERYONE
◦ Except residents
◦ S. 24 (3) A resident may make a report…, but is
not required to
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Duty on practitioners and others
 (4) Even if the information on which a report may be based
is confidential or privileged, subsection (1) also applies to
a person mentioned in paragraph 1, 2 or 3, and no action
or other proceeding for making the report shall be
commenced against a person who acts in accordance with
subsection (1) unless that person acts maliciously or
without reasonable grounds for the suspicion:
1. A physician or any other person who is a member of
a College as defined in subsection 1 (1) of the
Regulated Health Professions Act, 1991.
2. A person who is registered as a drugless
practitioner under the Drugless Practitioners Act.
3. A member of the Ontario College of Social Workers
and Social Service Workers.
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24. (1) A person who has reasonable
grounds to suspect that any of the following
has occurred or may occur shall
immediately report the suspicion and the
information upon which it is based to the
Director
DIRECTOR is a person at the MOHLTC not
the “director” or administrator of the LTCH
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Question: With respect to mandatory reporting by all persons under
section 24 of the Long-Term Care Homes Act, 2007 (LTCHA) what is
the contact information for the Director?
Answer: To make a report to the Director under section 24 of the
LTCHA the following options are available:
Call the confidential toll-free number:
1-866-434-0144 (7 days a week, 8:30 a.m. - 7:00 p.m.)
Or
Write a letter to this address:
Director,* Ministry of Health and Long-Term Care
Performance Improvement and Compliance Branch
1075 Bay Street, 11th Floor,
Toronto, ON M5S 2B1
(NEW ADDRESS)
For complete contact information for the Director call the toll-free
Action Line at 1-866-434-0144.
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LTCHA s.24. (1) A person who has reasonable grounds
to suspect that any of the following has occurred or
may occur shall immediately report the suspicion and
the information upon which it is based to the Director
LTCHA s. 1 “Director” means the person appointed
under section 175 as the Director and, where more than
one person has been appointed, means the person who
is the Director for the purposes of the provision in
which the term appears;
LTCHA s. 175. (1) The Minister may appoint one or
more persons as the Director. 2007, c. 8, s. 175 (1).
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Facility/ employment policies cannot override
these requirements by requiring reporting
only internally to management or cannot
suppress or limit the reporting by a person,
including staff, directly to the MOHLTC
Facility/ employment policies should be
developed and should include and support
and reflect these requirements to directly
report under the circumstances as set out in
the legislation
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Licensee of LTCH have a duty to protect residents from abuse
and must ensure residents are not neglected by staff or the
licensee
Licensees must have policies about Zero Tolerance of abuse
that includes
- a program, that complies with the regulations, for preventing
abuse and neglect;
- procedures for investigating and responding to alleged,
suspected or witnessed abuse and neglect of residents;
Therefore internal to each LTC home there must be plans/
procedures to guide staff (and others) as to what to do if abuse/
neglect as defined in this act occurs or is suspected in addition to
making the mandatory report to the MOHLTC
AFTER REPORTING still a requirement to respond and do something
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19. (1) Every licensee of a long-term care home
shall protect residents from abuse by anyone
and shall ensure that residents are not
neglected by the licensee or staff.
If absent from the home
(2) The duties in subsection (1) do not apply
where the resident is absent from the home,
unless the resident continues to receive care or
services from the licensee, staff or volunteers
of the home.
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Policy to promote zero tolerance
20. (1) Without in any way restricting the generality of the duty provided for in section 19,
every licensee shall ensure that there is in place a written policy to promote zero
tolerance of abuse and neglect of residents, and shall ensure that the policy is complied
with.
Contents
(2) At a minimum, the policy to promote zero tolerance of abuse and neglect of residents,
(a) shall provide that abuse and neglect are not to be tolerated;
(b) shall clearly set out what constitutes abuse and neglect;
(c) shall provide for a program, that complies with the regulations, for preventing abuse
and neglect;
(d) shall contain an explanation of the duty under section 24 to make mandatory
reports;
(e) shall contain procedures for investigating and responding to alleged, suspected or
witnessed abuse and neglect of residents;
(f) shall set out the consequences for those who abuse or neglect residents;
(g) shall comply with any requirements respecting the matters provided for in clauses (a)
through (f) that are provided for in the regulations; and
(h) shall deal with any additional matters as may be provided for in the regulations.
Communication of policy
(3) Every licensee shall ensure that the policy to promote zero tolerance of abuse and
neglect of residents is communicated to all staff, residents and residents’ substitute
decision-makers.
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LTCHA REGULATION S. 96.
Every licensee of a long-term care home shall ensure that the
licensee’s written policy under section 20 of the Act to promote
zero tolerance of abuse and neglect of residents,
(a) contains procedures and interventions to assist and support residents
who have been abused or neglected or allegedly abused or neglected;
(b) contains procedures and interventions to deal with persons who have
abused or neglected or allegedly abused or neglected residents, as
appropriate;
(c) identifies measures and strategies to prevent abuse and neglect;
(d) identifies the manner in which allegations of abuse and neglect will be
investigated, including who will undertake the investigation and who will be
informed of the investigation; and
(e) identifies the training and retraining requirements for all staff, including,
(i) training on the relationship between power imbalances between staff and
residents and the potential for abuse and neglect by those in a position of
trust, power and responsibility for resident care, and
(ii) situations that may lead to abuse and neglect and how to avoid such
situations. O. Reg. 79/10, s. 96.
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Notification re incidents
LTCHA REGULATION s. 97. (1) Every licensee of a long-term care home
shall ensure that the resident’s substitute decision-maker, if any, and any
other person specified by the resident,
(a) are notified immediately upon the licensee becoming aware of an alleged, suspected
or witnessed incident of abuse or neglect of the resident that has resulted in a physical
injury or pain to the resident or that causes distress to the resident that could
potentially be detrimental to the resident’s health or well-being; and
(b) are notified within 12 hours upon the licensee becoming aware of any other alleged,
suspected or witnessed incident of abuse or neglect of the resident.
(2) The licensee shall ensure that the resident and the resident’s substitute decisionmaker, if any, are notified of the results of the investigation required under subsection
23 (1) of the Act, immediately upon the completion of the investigation.
(3) Despite subsections (1) and (2), a licensee is not required to, but may, notify a
person of anything under this section if the licensee has reasonable grounds to believe
that the person is responsible for the alleged, suspected or witnessed incident of abuse
or neglect of the resident.
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LTCHA REGULATION S. 98. Every licensee of a
long-term care home shall ensure that the
appropriate police force is immediately notified
of any alleged, suspected or witnessed incident
of abuse or neglect of a resident that the
licensee suspects may constitute a criminal
offence.
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LTCHA REGULATION S. 99. Every licensee of a long-term
care home shall ensure,
(a) that an analysis of every incident of abuse or neglect of a
resident at the home is undertaken promptly after the licensee
becomes aware of it;
(b) that at least once in every calendar year, an evaluation is made to
determine the effectiveness of the licensee’s policy under section 20
of the Act to promote zero tolerance of abuse and neglect of
residents, and what changes and improvements are required to
prevent further occurrences;
(c) that the results of the analysis undertaken under clause (a) are
considered in the evaluation;
(d) that the changes and improvements under clause (b) are
promptly implemented; and
(e) that a written record of everything provided for in clauses (b) and
(d) and the date of the evaluation, the names of the persons who
participated in the evaluation and the date that the changes and
improvements were implemented is promptly prepared. O. Reg.
79/10, s. 99.
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Offence of failure to report
(5) The following persons are guilty of an offence if they fail to
make a report required by subsection (1):
1. The licensee of the long-term care home or a person who
manages a long-term care home pursuant to a contract
described in section 110.
2. If the licensee or person who manages the home is a
corporation, an officer or director of the corporation.
3. In the case of a home approved under Part VIII, a member of
the committee of management for the home under section 132
or of the board of management for the home under section
125 or 129.
4. A staff member.
5. Any person who provides professional services to a resident in
the areas of health, social work or social services work.
6. Any person who provides professional services to a licensee in
the areas of health, social work or social services work.
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Offences re suppressing reports
(6) Every person mentioned in paragraph 1, 2, 3
or 4 of subsection (5) is guilty of an offence if
the person,
(a) coerces or intimidates a person not to make a report
required by this section;
(b) discourages a person from making a report required
by this section; or
(c) authorizes, permits or concurs in a contravention of
the duty to make a report required by this section.
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Require an inspector to conduct an
investigation
As a result of investigation, LTCHA provides
for various actions that MOHLTC may take to
ensure compliance by Licensee with
legislation
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25. (1) The Director shall have an inspector conduct an inspection or make inquiries
for the purpose of ensuring compliance with the requirements under this Act if the
Director receives information from any source indicating that any of the following
may have occurred:
1. Improper or incompetent treatment or care of a resident that resulted in harm or a risk of
harm to the resident.
2. Abuse of a resident by anyone or neglect of a resident by the licensee or staff that resulted
in harm or a risk of harm to the resident.
3. Unlawful conduct that resulted in harm or a risk of harm to a resident.
4. A violation of section 26.
5. Misuse or misappropriation of a resident’s money.
6. Misuse or misappropriation of funding provided to a licensee under this Act or the Local
Health System Integration Act, 2006.
7. A failure to comply with a requirement under this Act.
8. Any other matter provided for in the regulations.
Immediate visit to home
(2) The inspector acting under subsection (1) shall immediately visit the long-term
care home concerned if the information indicates that any of the following may
have occurred:
1. Anything described in paragraph 1, 2 or 3 of subsection (1) that resulted in serious harm or
a risk of serious harm to a resident.
2. Anything described in paragraph 4 of subsection subsection (1).
3. Any other matter provided for in the regulations.
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Whistleblowing protections to protect against
retaliation
Possible complaints to Ontario Labour
Relations Board if anything done in retaliation
for reporting
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Whistle-blowing protection
26. (1) No person shall retaliate against another person, whether
by action or omission, or threaten to do so because,
(a) anything has been disclosed to an inspector;
(b) anything has been disclosed to the Director including, without
limiting the generality of the foregoing,
(i) a report has been made under section 24, or the Director has
otherwise been advised of anything mentioned in paragraphs 1 to 5 of
subsection 24 (1),
(ii) the Director has been advised of a breach of a requirement under
this Act, or
(iii) the Director has been advised of any other matter concerning the
care of a resident or the operation of a long-term care home that the
person advising believes ought to be reported to the Director; or
(c) evidence has been or may be given in a proceeding, including a
proceeding in respect of the enforcement of this Act or the
regulations, or in an inquest under the Coroners Act.
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Interpretation, retaliate
(2) Without in any way restricting the meaning of the word “retaliate”, the
following constitute retaliation for the purposes of subsection (1):
1. Dismissing a staff member.
2. Disciplining or suspending a staff member.
3. Imposing a penalty upon any person.
4. Intimidating, coercing or harassing any person.
No retaliation against residents
(3) A resident shall not be discharged from a long-term care home, threatened
with discharge, or in any way be subjected to discriminatory treatment
because of anything mentioned in subsection (1), even if the resident or
another person acted maliciously or in bad faith, and no family member of a
resident, substitute decision-maker of a resident, or person of importance to
a resident shall be threatened with the possibility of any of those being done
to the resident.
Interpretation, discriminatory treatment
(4) Without in any way restricting the meaning of the term “discriminatory
treatment”, discriminatory treatment for the purposes of subsection (3)
includes any change or discontinuation of any service to or care of a resident
or the threat of any such change or discontinuation.
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Complaint to Ontario Labour Relations Board
27. (1) Where a staff member complains that an employer
or person acting on behalf of an employer has contravened
subsection 26 (1), the staff member may either have the
matter dealt with by final and binding settlement by
arbitration under a collective agreement, if any, or file a
complaint with the Board in which case any rules
governing the practice and procedure of the Board apply
with all necessary modifications to the complaint.
…
(4) On an inquiry by the Board into a complaint filed under
subsection (1), the burden of proof that an employer or
person acting on behalf of an employer did not act
contrary to subsection 26 (1) lies upon the employer or the
person acting on behalf of the employer. 2007, c. 8,
s. 27 (4).
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To access full text of the legislation go to
http://www.e-laws.gov.on.ca
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Retirement Homes are Residential
Accommodation and are NOT regulated health
care facilities and are NOT “private” nursing
homes
Retirement Homes are tenancies – Retirement
Homes are regulated under BOTH the Residential
Tenancies Act and the Retirement Homes Act
The Retirement Homes Act is not yet completely
in effect – the sections on Abuse reporting have
been proclaimed and are in effect now
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After the act is proclaimed in effect , then retirement
homes will require a license to operate, will be
subject to inspection, and will need to meet the care
standards and other requirements of the RHA
The licensing and regulatory oversight of retirement
homes will be by the Retirement Home Regulatory
Authority (RHRA), not an Ontario Government Ministry
The RHRA has a Registar who is the Senior
management person who has various duties under
the act including the requirement to receive the
reports of abuse and neglect
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RHA 75. (1) A person who has reasonable grounds to suspect
that any of the following has occurred or may occur shall
immediately report the suspicion and the information upon
which it is based to the Registrar:
1. Improper or incompetent treatment or care of a resident
that resulted in harm or a risk of harm to the resident.
2. Abuse of a resident by anyone or neglect of a resident by
the licensee or the staff of the retirement home of the
resident if it results in harm or a risk of harm to the resident.
3. Unlawful conduct that resulted in harm or a risk of harm to
a resident.
4. Misuse or misappropriation of a resident’s money.
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When victims/ potential victims are residents/tenants in a
“Retirement Home”
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What is a Retirement home?
S. 1 “retirement home” means a residential complex or the
part of a residential complex,
◦ (a) that is occupied primarily by persons who are 65 years of age
or older,
◦ (b) that is occupied or intended to be occupied by at least the
prescribed number of persons who are not related to the operator
of the home, and
◦ (c) where the operator of the home makes at least two care
services available, directly or indirectly, to the residents,
◦ but does not include:..
◦ Prescribed number in (b) is SIX
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
How do you know if a place is a retirement home?

Duty to report also applies when Retirement home
resident/tenant is outside the retirement home

◦ Eventually there will be a Registry for retirement homes maintained by the
RHRA But this registry will take a long time to be established since the Act
has not yet been proclaimed and the retirement homes will not be given a
period of time to obtain the license after proclamation. Need to look at the
definition of retirement home and also at what places are NOT included
(such as supportive housing) and determine if the particular place meets
the definition
FOR EXAMPLE - Applies if resident/tenant of Retirement home
has gone to hospital/ physician/ is attending a programme at a
seniors centre and the persons interacting with retirement home
resident/ tenant have reasonable grounds to believe he / she is a
victim of abuse/ neglect at the retirement home then duty to
report applies
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Report required of both actual or potential of any of the
below
1.Improper or incompetent treatment or care of a resident
that resulted in harm or a risk of harm to the resident.
2. Abuse of a resident by anyone or neglect of a resident by
the licensee or the staff of the retirement home of the
resident if it results in harm or a risk of harm to the
resident.
3. Unlawful conduct that resulted in harm or a risk of harm to
a resident.
4. Misuse or misappropriation of a resident’s money.
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2. (1) In this Act,
“abuse”, in relation to a resident, means physical
abuse, sexual abuse, emotional abuse, verbal
abuse or financial abuse, as may be defined in the
regulations in each case;
“neglect”, in relation to residents, means the failure
to provide a resident with the care and assistance
required for his or her health, safety or well-being
and includes inaction or a pattern of inaction that
jeopardizes the health or safety of one or more
residents;
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RHA REGULATIONS
1. (1) For the purposes of the definition of “abuse” in subsection 2 (1) of the Act,
“emotional abuse” means,
(a) any threatening, insulting, intimidating or humiliating gestures, actions, behaviour or
remarks, including imposed social isolation, shunning, ignoring, lack of acknowledgement
or infantilization that are performed by anyone other than a resident, or
(b) any threatening or intimidating gestures, actions, behaviour or remarks by a resident
that causes alarm or fear to another resident if the resident performing the gestures,
actions, behaviour or remarks understands and appreciates their consequences;
“financial abuse” means any misappropriation or misuse of a resident’s money or property;
“physical abuse” means, subject to subsection (2),
(a) the use of physical force by anyone other than a resident that causes physical injury or
pain,
(b) administering or withholding a drug for an inappropriate purpose, or
(c) the use of physical force by a resident that causes physical injury to another resident;
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“sexual abuse” means,
(a) subject to subsection (3), any consensual or non-consensual touching,
behaviour or remarks of a sexual nature or sexual exploitation that is
directed towards a resident by a licensee or staff member, or
(b) any non-consensual touching, behaviour or remarks of a sexual nature
or sexual exploitation directed towards a resident by a person other than a
licensee or staff member;
“verbal abuse” means,
(a) any form of verbal communication of a threatening or intimidating
nature or any form of verbal communication of a belittling or degrading
nature that diminishes a resident’s sense of well-being, dignity or selfworth, if the communication is made by anyone other than a resident, or
(b) any form of verbal communication of a threatening or intimidating
nature made by a resident that leads another resident to fear for his or her
safety if the resident making the communication understands and
appreciates its consequences.
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RHA REGULATIONS
s.1(2) For the purposes of clause (a) of the definition of “physical
abuse” in subsection (1), physical abuse does not include the use
of force that is appropriate to the provision of care or assisting a
resident with activities of daily living, unless the force used is
excessive in the circumstances.
(3) For the purposes of the definition of “sexual abuse” in
subsection (1), sexual abuse does not include,
(a) touching, behaviour or remarks of a clinical nature that are
appropriate to the provision of care or assisting a resident with
activities of daily living; or
(b) consensual touching, behaviour or remarks of a sexual nature
between a resident and a licensee or staff member that is in the
course of a sexual relationship that began before the resident
commenced residency in the retirement home or before the
licensee or staff member became a licensee or staff member.
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

RHA 75. (1) A person who has reasonable
grounds to suspect that any of the following
(as described on previous slides) has
occurred or may occur…
So its ANYONE and EVERYONE
◦ Except residents
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RHA S 75(2) A resident is not required to
make a report under subsection (1) but may
do so.
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Duty on medical practitioners and others
(3) Even if the information on which a report may be based is
confidential or privileged, subsection (1) applies to a person
mentioned in paragraph 1, 2 or 3 and no action or other
proceeding for making the report shall be commenced
against a person who acts in accordance with subsection (1)
unless that person acts maliciously or without reasonable
grounds for the suspicion:
1.
A legally qualified medical practitioner or any other person who
is a member of a College as defined in subsection 1 (1) of the
Regulated Health Professions Act, 1991.
2. A person who is registered as a drugless practitioner under the
Drugless Practitioners Act.
3. A member of the Ontario College of Social Workers and Social
Service Workers. 2010, c. 11, s. 75 (3
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RHA 75. (1) A person who has reasonable
grounds to suspect that any of the following
has occurred or may occur shall immediately
report the suspicion and the information
upon which it is based to the Registrar
The Registar is a person at the Retirement
Home Regulatory Authority
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How to File a Report
Resident Care and Safety
If you see or suspect:
Harm or risk of harm to a resident resulting from:
Improper or incompetent treatment or care
Abuse of a resident by anyone or neglect of a resident by staff of the retirement home
Unlawful conduct
Misuse or misappropriation of a resident’s money
You must* report it to the Registrar of the Retirement Homes Regulatory
Authority, along with any other relevant information. To make a report,
call:
1-800-361-7254
*Under the Retirement Homes Act, 2010, a person (including retirement
home operators, managers, staff, professional health, social work and
social service providers) who suspects or is aware of any harm or risk of
harm to a retirement home resident must immediately report the suspicion
and the information on which it is based to the Registrar of the Retirement
Homes Regulatory Authority.
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

Retirement home employment
agreements/policies cannot override these
requirements by requiring reporting only
internally to management or suppress or limit the
reporting by a person, including staff, directly to
the Registrar
Retirement home employment
agreements/policies should include and support
and reflect these requirements to directly report
under the circumstances as set out in the
legislation
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RH Licensee will have a duty to protect residents from abuse and
must ensure residents are not neglected by staff or the
licensee
RH Licensees will be required to have policies about Zero
Tolerance of abuse that includes
- a program, that complies with the regulations, for preventing
abuse and neglect;
- procedures for investigating and responding to alleged,
suspected or witnessed abuse and neglect of residents;
Therefore internal to each RH home there must be plans/
procedures to guide staff (and others) as to what to do if abuse/
neglect as defined in this act occurs or is suspected in addition to
making the mandatory report to the Registrar
AFTER REPORTING still a requirement to respond and do something
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67. (1) Every licensee of a retirement home shall
protect residents of the home from abuse by anyone.
Same, neglect
(2) Every licensee of a retirement home shall ensure
that the licensee and the staff of the home do not
neglect the residents.
Resident absent from home
(3) The duties in subsections (1) and (2) do not apply if
a resident is absent from the retirement home, unless
the resident continues to receive care services from the
licensee or the staff of the home.
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RHA s 67 (4) Without in any way restricting the generality of the duties described in
subsections (1) and (2), the licensee shall ensure that there is a written policy to
promote zero tolerance of abuse and neglect of residents and shall ensure that the
policy is complied with. 2010, c. 11, s. 67 (4).
Contents
(5) At a minimum, the policy to promote zero tolerance of abuse and neglect of
residents shall,
(a) clearly set out what constitutes abuse and neglect;
(b) provide that abuse and neglect are not to be tolerated;
(c) provide for a program for preventing abuse and neglect;
(d) contain an explanation of the duty under section 75 to report to the Registrar the
matters specified in that section;
(e) contain procedures for investigating and responding to alleged, suspected or
witnessed abuse and neglect of residents;
(f) set out the consequences for those who abuse or neglect residents;
(g) comply with the prescribed requirements, if any, respecting the matters described
in clauses (a) to (f); and
(h) deal with the additional matters, if any, that are prescribed. 2010, c. 11, s. 67 (5).
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RHA REGULATION 15. (1) The program for preventing abuse and
neglect described in clause 67 (5) (c) of the Act shall entail training
and retraining requirements for all staff of the retirement home,
including,
(a) training on the relationship between power imbalances between staff and
residents and the potential for abuse and neglect by those in a position of
trust, power and responsibility for resident care; and
(b) situations that may lead to abuse and neglect and how to avoid such
situations.
(2) The procedures for investigating and responding to alleged,
suspected or witnessed abuse and neglect of residents described in
clause 67 (5) (e) of the Act shall include details outlining who will
undertake the investigation and who will be informed of the
investigation.
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(3) The policy to promote zero tolerance of abuse and neglect of residents
described in subsection 67 (4) of the Act shall,
(a) contain procedures and interventions to assist and support residents who
have been abused or neglected or allegedly abused or neglected;
(b) contain procedures and interventions to deal with persons who have
abused or neglected or allegedly abused or neglected residents, as
appropriate;
(c) identify measures and strategies to prevent abuse and neglect;
(d) provide that the licensee of the retirement home shall ensure that the
resident’s substitute decision-makers, if any, and any other person specified
by the resident,
(i) are notified immediately upon the licensee becoming aware of an
alleged, suspected or witnessed incident of abuse or neglect of a resident
that has resulted in a physical injury or pain to a resident or that causes
distress to a resident that could potentially be detrimental to a resident’s
health or well-being, and
(ii) are notified within 12 hours upon the licensee becoming aware of any
other alleged, suspected or witnessed incident of abuse or neglect of a
resident;
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(e) provide that the licensee of the retirement home shall ensure that the resident
and the resident’s substitute decision-makers, if any, are notified of the results of an
investigation described in clause 67 (5) (e) of the Act immediately upon the
completion of the investigation;
(f) provide that the licensee of the retirement home shall ensure that the appropriate
police force is immediately notified of any alleged, suspected or witnessed incident
of abuse or neglect of a resident that the licensee suspects may constitute a criminal
offence; and
(g) provide that the licensee of the retirement home shall ensure that,
(i) an analysis of every incident of abuse or neglect of a resident at the home is undertaken
promptly after the licensee becomes aware of it,
(ii) at least once in every calendar year, an evaluation is made to determine the effectiveness of
the policy and what changes and improvements are required to prevent further occurrences of
abuse and neglect of residents,
(iii) the results of the analysis undertaken under subclause (i) are considered in the evaluation
mentioned in subclause (ii),
(iv) the changes and improvements mentioned in subclause (ii) are promptly implemented, and
(v) a written record of everything provided for in subclauses (ii) and (iv) and the date of the
evaluation, the names of the persons who participated in the evaluation and the date that the
changes and improvements were implemented is promptly prepared. O. Reg. 166/11, s. 15 (3).
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98. (1) A person is guilty of an offence if the person,
…..
(b) includes in a report to the Registrar under subsection 75 (1) information that the person knows to be
false and the person is not a resident who is incapable;
(c) fails to make a report required by subsection 75 (1) and the person is,
(i) the licensee of a retirement home or a person who manages a retirement home on behalf of a
licensee,
(ii) if the licensee of a retirement home or person who manages the home is a corporation, an officer or
director of the corporation,
(iii) a staff member of a retirement home,
(iv) any person who provides professional services to a resident in the areas of health, social work,
social services work or finances, or
(v) any person who provides professional services to a licensee in the areas of health, social work or
social services work;
(d) is a person described in subclause (c) (i), (ii) or (iii) and,
(i) coerces or intimidates a person not to make a report required by subsection 75 (1),
(ii) discourages a person from making a report required by subsection 75 (1), or
(iii) authorizes, permits or concurs in a contravention of the duty to make a report required by
subsection 75 (1);
(e) contravenes a provision of the regulations that is prescribed for the purpose of this clause;
…
(h) fails to comply with an order made by the Registrar under this Act.
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Require an inspector to conduct an
investigation
As a result of investigation, RHA provides for
various actions that the Registar/ RHRA may
take to ensure compliance by Licensee with
legislation
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s.75 (5) If the Registrar receives a report
indicating that any of the events described in
subsection (1) may have occurred, the
Registrar shall ensure that an inspector visits
the retirement home immediately.
Powers of inspector
(6) Sections 77 to 79 apply with necessary
modifications to an inspector acting under
subsection (1).
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Whistleblowing protections to protect against
retaliation
Possible complaints to Ontario Labour
Relations Board
Protection against retaliation includes
protections both for staff as well as for
residents/tenants of retirement homes
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RHA 115. (1) No person shall retaliate or threaten to retaliate against another person,
whether by action or omission, because any person has disclosed anything to the
Registrar or an inspector or has provided evidence that has been or may be given in a
proceeding, including a proceeding in respect of the enforcement of this Act or the
regulations, or in an inquest under the Coroners Act.
Interpretation, retaliate
(2) Without limiting the meaning of “retaliate” in this section, the following constitute
retaliation for the purpose of this section:
1. Dismissing, suspending or disciplining a member of the staff of a retirement
home.
2. Evicting a resident from a retirement home.
3. Subjecting a resident of a retirement home to discriminatory treatment.
4. Imposing a penalty on any person.
5. Intimidating, coercing or harassing any person.
Interpretation, discriminatory treatment
(3) Without limiting the meaning of “discriminatory treatment” in subsection (2),
discriminatory treatment for the purpose of that subsection includes any change in
or discontinuation of any service or care provided to a resident. (3).
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Threats against resident made to others
(4) The prohibition in subsection (1) includes threatening a family member of a resident,
substitute decision-maker of a resident, or person of importance to a resident with retaliation
against the resident.
Malicious, etc., disclosure
(5) The prohibition in subsection (1) applies to retaliation or threatening retaliation against a
resident, even if the disclosure to the Registrar or inspector was made maliciously or in bad faith.
Disclosure not to be discouraged
(6) None of the following persons shall do anything that discourages, is aimed at discouraging or
has the effect of discouraging a person from making a disclosure to the Registrar or an inspector:
1. The licensee of a retirement home.
2. A member of the staff of a retirement home.
3. If the member mentioned in paragraph 2 is a corporation, a director or officer of the
corporation.
Protection from legal action
(7) No action or other proceeding shall be instituted against any person for making a disclosure to
the Registrar or an inspector, unless the person acted maliciously or in bad faith.
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RHA REGULATION 116. (1) In this section,
“Board” means the Ontario Labour Relations Board; (“Commission”)
“employer”, in relation to a member of the staff of a retirement home, means,
(a) the licensee of the home, if the member works at the home as an employee of the licensee or pursuant to a
contract or agreement with the licensee, or
(b) if the member works at the home pursuant to a contract or agreement between the licensee of the home and an
employment agency or other third party, the employment agency or third party.
Arbitration or complaint
(2) A member of the staff of a retirement home who complains that the employer or a person acting on behalf of the
employer has contravened section 115 may either have the matter dealt with by final and binding settlement by
arbitration under the collective agreement, if any, that applies to the member and his or her employer or file a
complaint with the Board, in which case the rules governing the practice and procedure of the Board apply with
necessary modifications to the complaint.
Inquiry by Board
(3) The Board may inquire into any complaint filed under subsection (2) and, if the Board does so, subsections 96
(1), (2), (3), (4), (6), (7) and (8) and sections 110, 111, 114 and 116 of the Labour Relations Act, 1995 apply with
necessary modifications.
Onus of proof
(4) On an inquiry under subsection (3), the onus is on the employer or the person acting on behalf of the employer
to prove that the employer or person, as the case may be, did not contravene section 115
Board may substitute penalty
(5) If, on an inquiry under subsection (3), the Board determines that an employer has dismissed, suspended or
disciplined a member of the staff of a retirement home for cause and the contract of employment or the collective
agreement, as the case may be, does not contain a specific penalty for the reason for the dismissal, suspension or
discipline, the Board may substitute any other penalty that it considers just and reasonable in the circumstances in
the place of the dismissal, suspension or discipline.
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To access full text of the legislation, go to
http://www.e-laws.gov.on.ca
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
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Substitute Decision Act is one of two acts (Health
Care Consent Act being the other) that details the law
on mental capacity, Powers of Attorney, guardianship
and substitute decision making
SDA includes voluntary reporting to the OPGT that a
person who is believed to be mentally incapable and
is experiencing or at risk of serious harm, either to
their property or their person.
OPGT then may investigate and may take steps to
become that person’s guardian or take other steps to
assist the person
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27. (1) Loss of a significant part of a person’s property, or a person’s failure to
provide necessities of life for himself or herself or for dependants, are serious
adverse effects for the purposes of this section.
Duty to investigate
(2) The Public Guardian and Trustee shall investigate any allegation that a person is
incapable of managing property and that serious adverse effects are occurring or
may occur as a result.
Extent of investigation
(3) In conducting an investigation under subsection (2), the Public Guardian and
Trustee is not required to take any steps that, in his or her opinion, are unnecessary
for the purpose of determining whether an application to the court is required under
subsection (3.1).
Application for temporary guardianship
(3.1) If, as a result of the investigation, the Public Guardian and Trustee has
reasonable grounds to believe that a person is incapable of managing property and
that the prompt appointment of a temporary guardian of property is required to
prevent serious adverse effects, the Public Guardian and Trustee shall apply to the
court for an order appointing him or her as temporary guardian of property.
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62. (1) Serious illness or injury, or deprivation of liberty or personal security, are
serious adverse effects for the purposes of this section.
Duty to investigate
(2) The Public Guardian and Trustee shall investigate any allegation that a person is
incapable of personal care and that serious adverse effects are occurring or may
occur as a result.
Extent of investigation
(3) In conducting an investigation under subsection (2), the Public Guardian and
Trustee is not required to take any steps that, in his or her opinion, are unnecessary
for the purpose of determining whether an application to the court is required under
subsection (3.1).
Application for temporary guardianship
(3.1) If, as a result of the investigation, the Public Guardian and Trustee has
reasonable grounds to believe that a person is incapable of personal care and that
the prompt appointment of a temporary guardian of the person is required to
prevent serious adverse effects, the Public Guardian and Trustee shall apply to the
court for an order appointing him or her as the incapable person’s temporary
guardian of the person.
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The Public Guardian and Trustee shall investigate any
allegation that a person is incapable of managing
property (or personal care) and that serious adverse
effects are occurring or may occur as a result.
1.Evidence
that the victim is incapable of managing
property or personal care.
NOTE : This evidence does not need to be a capacity
assessment by a capacity assessor or other detailed
assessments. May be observations of behaviours,
from your interaction with person. May be
observations and evidence of other people.
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2. Evidence that “ serious adverse effects” are occurring or may occur
as a result.
What are “ serious adverse effects” ?
27. (1) Loss of a significant part of a person’s property, or a person’s failure to
provide necessities of life for himself or herself or for dependants, are serious
adverse effects for the purposes of this section.
62. (1) Serious illness or injury, or deprivation of liberty or personal security,
are serious adverse effects for the purposes of this section
So Think of what evidence / information you can provide to the OPGT
orally, in writing to show this? Note that the losses/ harms may be
POTENTIAL as well as actually occurring
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There are MANY misunderstandings about privacy law
YOU need to understand the requirements for privacy
both from legislation and from professional codes of
practice
A full discussion of privacy law is beyond this
presentation however the basic principles are that
◦ you must get consent for the collection, use and disclosure
of private information,
◦ a person may give or refuse consent about their own
information,
◦ if a person is not capable the SDM as defined in the
particular applicable privacy legislation may give or refuse
consent and
◦ the legislation may provide for exceptions to consent when
consent is not required to release of information
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Personal Health Information Protection Act
2004
43. (1) A health information custodian may disclose
personal health information about an individual,
(a) for the purpose of determining, assessing or
confirming capacity under the Health Care Consent
Act, 1996, the Substitute Decisions Act, 1992 or this
Act;….
(e) to the Public Guardian and Trustee, ..so that they
can carry out their statutory functions;
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Personal Health Information Protection Act
2004
40. (1) A health information custodian may
disclose personal health information about an
individual if the custodian believes on
reasonable grounds that the disclosure is
necessary for the purpose of eliminating or
reducing a significant risk of serious bodily
harm to a person or group of persons.
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
Reporting to a third party agency/ person is NOT
the only way of assisting a person you think is or
may be the victim of abuse
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
Appropriate response to abuse situations depend
on many factors including:
◦ who is the victim and his or her particular personal
circumstances (mental capacity, physical needs/ limitations,
financial circumstances, available personal supports such
as family and friends, place of residence etc)
◦ The victim’s own understanding of the abuse, does the
victim see the identified activity as abuse, and what are his
or her concerns/ wishes/directions in respect to different
options/ interventions to respond to the abuse
◦ START BY TALKING TO THE SENIOR!
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
Appropriate response to abuse situations depend on many factors
including:


Availability of services/ supports
The immediate, short term, and long term needs of the victim
 safety,
 financial
 shelter,
 health care,
 social services assistance,
 legal assistance
 Help for a victim of abuse may require a number of different
people and services because elder abuse is not one “type” of
action/ behaviour etc
 Think about what YOU are able to do and whether you know the
other services and systems that you can help the senior access
for other help
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
What options family members (that are not the
abuser) may have such as
◦ Helping support the capable victim emotionally to
take steps to address abuse
◦ Assisting capable victim to seek recovery of money
that was taken from them through abuse
◦ Providing temporary or long term accommodation or
temporary or long term care supports to reduce or
eliminate dependency of victim on abuser if any
◦ Taking steps to challenge authority of abuser that is
SDM of incapable victim whether that is through a
court proceeding or by some other means
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

Capable people have the right to control their own lives (to
a point)
Capable people may need information as to options
available as they may think that nothing and nobody can
help them
 May need help accessing help
 May need help seeking legal assistance
 May need help getting alternative care supports if abuser is the
caregiver
 May need help to revoke POA if abuser is person named as
attorney in POA
 May need help enforcing own rights and also addressing
misunderstandings by service providers of seniors rights and
ways of addressing the abuse
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
If the alleged victim lacks decisional capacity,
there may be additional options as to what action
is appropriate
 Reporting to OPGT
 Involving family who can take steps to replace SDM
 Seeking direction from the SDM (if SDM is not the alleged
abuser)
 Challenging authority of the SDM – just because someone is
an attorney for personal care or property they cant just do
“anything” – the scope of their authority is limited by the law
 Example – SDM for personal care gets no authority to make
decisions until the senior is not capable for a particular
decision – so are YOU getting the decision from the right
person or actually contributing to abuse by taking direction
from the SDM?
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


Need to understand what SDMs may or may not do by law
(scope of authority)
SDMs powers are not unlimited eg SDMs do not have the
right to restrict visitors to LTCH resident unless there is a risk
of safety
SDMs cannot use the incapable seniors money for their own
purposes (breach of fiduciary duty)
SDMs must make health care decisions for the incapable
resident in accordance with the residents wishes / best
interest and care providers may challenge the SDM authority
before the Consent and Capacity Board if they are not acting
so accordingly
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
Is the abuse a Criminal Code Offence?
◦ No requirement generally to report a crime other
than in two pieces of legislation mentioned earlier
but ethically/ by professional codes of ethics may
be possible/ appropriate/ justifiable to do
something
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
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Assault s 265
Assault with a weapon or causing bodily harm s. 267
Forcible Confinement ss 279(1) Sexual Assault s.271
Breach of Duty to Provide Necessaries s.215
Intimidation s.423
Uttering threats s.264.1. Theft s.322
Theft by a Person Holding a Power of Attorney s.331
Fraud s.380
Extortion s.346
Stopping Mail With Intent s.345
Forgery s.366
Advocacy Centre for the
Elderly 2012
88

TALK to the person - what does he or she want to
do?

Is he or she even aware that abuse has occurred?

Is it actually abuse or does it appear to be abuse when
its not (ie money removed from bank account with the
agreement of the person with full consent and not with
undue influence) ?

The person needs information on options open for him or
her to pursue before he or she can make decision of
whether to take action or not and what action to take.
Advocacy Centre for the
Elderly 2012
89

The person may need to speak to a lawyer or others to
determine the options available.

Who are the best people to provide information on the
options available?

The person may need help from a variety of sources
simultaneously to address the abuse - ie talk to a lawyer
to seek legal options, get counselling to assist person in
supporting self esteem and in having confidence to
pursue remedies, get ongoing assistance from various
services to prevent a reoccurrence of the abuse.
Advocacy Centre for the Elderly 2012
90
Some ideas:
a)
If abuse by an attorney named in the person’s continuing
power of attorney for property,
Help senior get appropriate assistance to revoke the
continuing power of attorney for property ( this is done by
signing a revocation of the CPOAP, tearing up the original
CPOAP, get all copies if any of the CPOAP back , send
notices of the revocation to all places (ie banks etc) where the
attorney may have used the CPOAP and where the person
has assets
Senior may take legal action if necessary against the attorney
for an accounting and for the return of any assets
misappropriated,
Advocacy Centre for the
Elderly 2012
91
Senior may want tp create a new CPOAP naming
another person as attorney that the grantor can trust
to properly manage his/her finances;
Senior may want / be advised to report to police for
investigation as to whether criminal offence
committed (Abuse of Power of Attorney? Theft?
Fraud? )
If abuse of pension cheques (ie theft of cheques)
Help senior get direct deposit of pension cheques into
the person’s own bank account not accessible by the
abuser;
Advocacy Centre for the Elderly 2012
92
Senior may need assistance to take legal action
against the abuser to recover misappropriated funds;
Senior may also report to police for possible criminal
charges against abuser
Return of property placed in name of abuser ( ie on
promise to provide care etc) –
Senior may need legal help to take action against the
abuser for return of property if undue influence,
unjust enrichment, fraudulent transfer etc.
Advocacy Centre for the Elderly 2012
93
Can
you talk to this person? Although incapable for
financial decision making are they still capable to
participate in decision making as to a remedy?
Is
the substitute the abuser? If not, can you talk with the
substitute decision maker as to the possible options?
Would the substitute be the person who would need to
pursue the options?
Advocacy Centre for the
Elderly 2012
94
Some ideas:
a)
person incapable in respect to property but still capable to
revoke a continuing power of attorney for property if the abuse is by
the attorney named in the CPOAP - revoke CPOAP - same as in a)
above
b)
person incapable and at risk of serious harm or serious harm is
occurring to their property - contact OPGT under s.27 of SDA for
investigation.
c)
contact to the police - what can you say or not say? issues
related to confidentiality and rules of professional conduct. The
person contacting the police may want to get legal advice before
releasing information as to appropriate action.
Advocacy Centre for the
Elderly 2012
95
d)
substitute decision maker (if not the abuser) may be
able to take action for recovery of funds, take steps to
protect property as appropriate to the situation.
e)
if no attorney, someone may apply to become
trustee to manage OAS and CPP cheques of the
financially incapable person so that senior will still have
access to income fro own support and a person
managing that for them
Advocacy Centre ofr the Elderly 2012
96
What
does the person who has been abused
want to do?
Does
he or she know of the options available?
Is
the person at personal risk if no steps are
taken to address the abuse?
Is
the person dependent on the abuser for care?
Advocacy Centre for the
Elderly 2012
97

Is abuse taking place or is the caregiver not
providing good care unintentionally or doesn”t
know how to provide the care needed?

Are there alternative options for the care and
other ways of reducing or eliminating the
dependency on the abuser?

Does the person live with the abuser?
Advocacy Centre for the Elderly 2012
98

Can the abuser be removed from the household?

Does the victim want to move to alternative accommodation?

Does the victim have control over his or her own money ( This may
extend the options available).

Who is the abuser? A family member, a service provider, a paid
caregiver, a health care professional? There will be different options
depending on who is the abuser and the type of abuse committed.

Depending on the abuse that was committed, this may change
create special obligations on some persons who become aware of
the abuse ie obligation on health professionals to report sexual
abuse has been committed by another health professional
Advocacy Centre for the Elderly 2012
99
Some ideas:
a)
assisting the person to make a complaint to a
professional College
b) assisting the person to make a complaint to the
Ministry of Health if abuse in a Long-term care facility/
complaint to Registrar under RHA if Retirement Home
c)
helping senior access a lawyer to discuss possible
action for damages for harm suffered
Advocacy Centre for the
Elderly 2012
100
d) eviction of abuser who is living with the victim from
household by action under the Residential Tenancies Act
e) application to the Criminal Injuries Compensation
Fund for compensation for victims of crime
f) assisting the victim to find alternative care providers
(alternative to the abuser), to find alternative
accommodation, to get counselling and support
g) assisting the person to report the abuse to the police
if the abuse was a criminal act
Advocacy Centre for the Elderly
Can
this person still participate in decision
making about options to address the abuse? The
person may lack some capacity and yet still be
capable to give some directions.
Is
the substitute decision maker the abuser?
How
much at risk is the person? How quickly
does this person need assistance?
Advocacy Centre for the
Elderly 2012
102

If the abuser is not the substitute, is the
substitute aware of the abuse?

Can the substitute take steps to address the
abuse?

Who does the victim and his/her substitute need
to get advice from to address the abuse?
Advocacy Centre for the Elderly 2012
Some ideas:
a)report to OPGT to do investigation under s. 62 of
the SDA - incapable person at risk of serious
harm/ experiencing serious harm to his or her
person.
b)report
to the police of criminal offence
c)report
to professional College of professional’s
misconduct
Advocacy Centre for the
Elderly 2012
104
a)
if no Guardian of the Person and no attorney named in
a power of attorney for personal care, application to
Consent and Capacity Board to be appointed as
representative for the Person ( the new substitute
decision maker) if abuse related to existing substitute’s
failure to act as appropriate substitute for treatment,
admission, or personal assistance services
b)
application by health practitioner (if treatment) or by
CCAC (if admission) to Consent and Capacity Board
to determine compliance of substitute with the
legislation if abuse related to substitute’s failure to act
as an appropriate SDM.
Advocacy Centre for the Elderly 2012
1.
They may not understand the options available to
them.
2.
They may think that they are no other options except
to put up with the abuse.
3.
They may not trust the person who is seeking to
help them.
4.
The person seeking to help may not know all the
options or may be trying to impose a particular
option on them that they don’t want to pursue.
Advocacy Centre for the
Elderly 2012
106
5.
The person seeking to help may be setting up barriers
unknowingly that prevents the person from agreeing to the help
offered.
6.
The person may need time to consider the options and may be
willing to take help but at their own pace, a pace that is
different than the person offering the help.
7.
The person offering the help may have done things that cause
the person needing help to distrust them ie. taking direction
from an abusing caregiver instead of the victim or disclosing
information to the abuser that the victim did not want to be
disclosed.
Advocacy Centre for the
Elderly 2012
107
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