Strategies for occupational therapists to address elder abuse/mistreatment Provincial Legal Information: ALBERTA Prepared by the Canadian Association of Occupational Therapists August 2011 This project is funded by the Government of Canada, Human Resources and Skills Development Canada (HRSDC).
Table of Contents A. Introduction Purpose of this legal resource B. Elder Abuse in your Region 1. Introduction to the tables 2. Alberta reporting table 3. Legal Principles Specific to your Region 2
A. Introduction: Purpose of this Legal Resource The following material will: Provide a summary of key laws relevant to elder abuse and neglect Identify obligations to respond to abuse, neglect and risk Identify key agencies to contact if you are concerned that an older adult is being abused or neglected Outline the relationship between mental capacity and the law in relation to elder abuse Discuss the impact of professional confidentiality obligations and privacy law on the ability of professionals to disclose an older adult s confidential information in order to follow up on concerns regarding abuse and neglect Provide a list of resources The Canadian Centre for Elder Law (CCEL) has produced this elder abuse legal resource to assist the following agencies to produce educational materials of relevance to their members: Canadian Association of Occupational Therapists Canadian Dental Hygienists Association Canadian Nurses Association Fédération des associations de jurists d expression française Fédération des locataires d habitations à modique du Québec Fondation du centre de santé et de services sociaux de la Vieille-Capitale This tool has been augmented by additional legal research specific to occupational therapy practice. This tool accompanies the main document entitled, Strategies for occupational therapists to address elder abuse/mistreatment, produced by the Canadian Association of Occupational Therapist with funding the Human Resources and Social Development Canada New Horizons for Seniors Program. 3
WARNING This material contains information and guidance for practice. The information is not legal advice. Abuse or neglect of older adults can have serious consequences. In many instances it will be your obligation to ensure that an older adult gets legal advice as soon as possible. Legal advice will help protect your client. It can also protect you and your employer from a lawsuit. The law is always changing. All material provided is up to date as of August 31, 2010. Any changes to the law after August 31, 2010 are not reflected in these materials. 4
B. Elder Abuse in your Region 1. Introduction to the tables Introduction: All occupational therapists should have a basic knowledge of when they are required to report abuse or neglect of older adults in their jurisdiction, for which types of harms, and where to go for assistance. The following table provides a general description and summary of law, regulations, and policies. Abuse, neglect, or self-neglect occurring in the community: If a clinician suspects that an older client is being (or may be) abused or neglected, it is important to understand that they may not be able to seek help on his or her own because of a physical or mental condition, and therefore is often referred to as a vulnerable adult or adult in need of protection. There may be special laws and resources in your jurisdiction to help you support this population. If an older person living in the community is being abused or neglected and is not a vulnerable adult, then occupational therapists may want to seek out more information to help the person access appropriate community resources. Or with the older adult s consent, they may want to make a referral to family violence or victim services, law enforcement, or other important resources in the community. Abuse or neglect happening in long-term care: Many provinces and territories have specific reporting requirements if the abused or neglected person lives in a licensed long-term care facility or certain other facilities that provide care and assistance. Occupational therapists working in these settings are usually expected to report abuse or neglect incidents they witness. They must be aware of whom to contact (e.g., their immediate supervisor, the facility manager, or director of care) so that the incident can be properly addressed and reported to the necessary authorities or parties. In long-term care there can be three types of perpetrators: a) staff, volunteers or others in the setting; b) family members; and c) other residents. Depending on the type of care setting, the type of harm, the level of seriousness, the type of person causing harm, and sometimes the type of abuse, the licensees or operators of facilities usually have a responsibility to report the incident to outside authorities. They may also have a responsibility to keep a record of other not reportable serious incidents. If the suspected perpetrator is a member of a regulated health profession (e.g., medicine, nursing, physical or occupational therapy), there is a mandatory obligation to report certain types of abuse (e.g., sexual abuse) and to contact the respective provincial College for specific information. Long-term care home operators cannot safeguard residents or fulfil their legal duty if they do not know about the incident. It is important that all staff report incidents promptly to the appropriate person(s) so that the incident can be properly addressed and reported to the necessary authorities or parties. Operators are usually required to have written policies and protocols on abuse. This practice helps all staff and others working or volunteering at the facility to know their responsibilities, and to whom they should be making a report. Note: It is not up to the occupational therapist to identify the person s (suspected abuser s) intention or whether the incident falls under the exact specifics of the law. The agency or department responsible for reports will make that decision. 5
ALBERTA Abuse in the community Is there a law that requires occupational therapists to report abuse of older adults (compulsory reporting)? Which adults does this law cover? Types of abuse covered by this law Where can an occupational therapist call for information or report the suspected abuse? GENERAL RULE: No compulsory reporting in Alberta for abuse or neglect of older adults in the community. There is currently no one-stop number to call in Alberta. Alberta Elder Abuse Awareness Network Tel: 780-392-3267 (Edmonton); 403-206-8311 (Calgary) Website: www. albertaelderabuse.ca/ Senior Abuse HelpLine Tel: 780-454-8888 (Edmonton) Kerby Elder Abuse Line Tel: 403-705-3250 (Calgary) Older Women s Long-term Survival (OWLS) Tel: 403-253-2912 (Calgary) EXCEPTION: Everyone in Alberta is required to report abuse or neglect if the abused person is receiving care or support services from certain publicly funded health care or living environments. (Protection for Persons in Care Act [PPCA]). PPCA applies where the adult lives in/ receives care or support services from a publicly funded lodge, hospital, mental health facility, nursing home, social care facility, or other service provider. This includes older adults receiving care or support in any assisted living PPCA covers: - Physical harms, - Emotional harms, - Sexual abuse (nonconsensual sexual contact), - Financial abuse, - Neglect (not providing adequate nutrition, medical attention or other necessity of life) It also includes giving or inappropriately Protection for Persons in Care Every person must report abuse or neglect that falls under the PPCA criteria. To report abuse of a client or resident, you have three choices : (i) Call the Protection for Persons in Care Office, toll free 1-888-357-9339 (ii) If it involves a crime, report it to the police. 6
ALBERTA con t NOTE: PPCA only covers publicly funded bodies or supportive living facility that receives public funding. Upcoming changes to the PPCA regulations will also make it apply to homecare services. withholding medication. It does not cover financial abuse by family. In most cases there is a threshold for compulsory reporting. The abuse or neglect must lead to serious bodily or serious emotional harm or involve a significant amount of money. (iii) Report to a professional regulatory College or body if the abuse involves a health professional. For example, if the incident involves a registered nurse, the report can be made directly to the College and Association of Registered Nurses of Alberta A very good new resource for professionals is: A Guide to Understanding the Protection for Persons in Care Act (see footnote 6). Abuse in long-term care Is there a law that requires occupational therapists to report abuse of older adults (compulsory reporting)? Which adults does this law cover? Types of abuse covered by this law Where can an occupational therapist call for information or report the suspected abuse? GENERAL RULE Alberta has compulsory reporting for abuse or neglect of people living in nursing homes. (Protection for Persons in Care Act). Everyone in Alberta is required to report abuse or neglect if the abused person is receiving care or support services from certain publicly funded health care or living environments, As above. Applies where older adult lives in a publicly funded nursing home or an auxiliary hospital. Same as above. Same as above regarding PPCA. Every person must report abuse or neglect of a nursing home resident. To report abuse of a resident in a publicly funded nursing home, call the Protection for Persons in Care Office, toll free 1-888-357-9339. Or if a crime has occurred, you can report it to the police. Report to a professional regulatory college if the 7
ALBERTA con t including nursing homes. Does not have to be the OT s client, just the client of the facility s service providers. abuse involves a health professional. Note : Report to the Protection for Persons in Care (PPC) Information and Reporting Line. (If a report is made to police or a regulatory College, the PPC will not deal with it.) The PPC reporting line is not an emergency number and is only open during regular business hours. A written abuse report can also be submitted to PPC by letter or by completing an Abuse Report Form available at: www.seniors.alberta.ca/ PPC 3. Legal Principles Specific to Region (compiled by Canadian Centre on Elder Law) 1. Key Legislation Protection for Persons in Care Act, R.S.A., 2009, c. P-29.1. Protection Against Family Violence Act, R.S.A. 2000, c. P-27 Health Information Act, R.S.A. 2000, c. H-5 Personal Information Protection Act, R.S.A. 2003, c. P-6.5 [PIPA] Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 [FOIPPA] 2. Definition of abuse and neglect According to the Protection for Persons in Care Act (s. 1(2)), abuse means an act or an omission with respect to a client receiving care or support services from a service provider that (a) causes serious bodily harm, (b) causes serious emotional harm, (c) results in the administration, withholding or prescribing of medication for an inappropriate purpose, resulting in serious bodily harm, (d) subjects an individual to non-consensual sexual contact, activity or behaviour, (e) involves misappropriating or improperly or illegally converting a significant amount of money or other valuable possessions, or (f) results in failing to provide adequate nutrition, adequate medical attention or another necessity of life without a valid consent, resulting in serious bodily harm. 8
3. Principles and Values The purpose of the Protection for Persons in Care Act (s. 2) is: (a) to require the reporting of abuse involving clients, (b) to provide for an independent review of reports of abuse involving clients, and (c) to promote the prevention of abuse involving clients. 4. Responding to elder abuse and neglect According to the Protection for Persons in Care Act (s. 7(1)), every person who has reasonable ground to believe there is or has been abuse involving an adult who receives care or support services from a hospital or lives in a care facility must report abuse to: 1. a complaints officer, 2. the police, or 3. other authorized person, body or committee authorized to investigate abuse. Committees, bodies or persons authorized to investigate abuse include regulatory bodies governing professionals under the Health Professions Act. Service providers and their employees who provide care or support services under an additional obligation (Protection for Persons in Care Act, s. 10): (a) to take reasonable steps to protect the client from abuse while providing care or support services, and (b) to maintain a reasonable level of safety for the client. and to: take all reasonable steps to provide for the immediate safety, security and well-being of a client in respect of whom a report of abuse is made and any other clients who may be at risk of abuse when the service provider is notified that a report of abuse has been made under this Act. Individuals who fail to comply with the above requirements are guilty of an offence and may be fined up to $10,000 (ss. 7(5) and 24(2)). Service providers, including hospitals and care facilities, may be fined up to $100,000 (s. 24(2)). Lawyers are exempt from this reporting requirement if the information on which they base their belief of abuse is privileged as a result of a solicitor-client relationship (s. 7(3)). There is no duty to report family violence. However, under the Protection Against Family Violence Act (s. 4), it is possible to get a court protection order with terms such as no contact or exclusive occupation of the home, where family violence has occurred. Family violence is defined to include some kinds of elder abuse (s. 1): (i) any intentional or reckless act or omission that causes injury or property damage and that intimidates or harms a family member, (ii) any act or threatened act that intimidates a family member by creating a reasonable fear of property damage or injury to a family member, (iii) forced confinement, (iv) sexual abuse, and (v) stalking. The vulnerability of an elderly victim is a factor a judge may consider in determining whether to grant an emergency protection order (s. 2(2)(c.1)). 9
The following people may apply for a protection order (s. 6(1)): a victim, a person, including a police officer, with consent of the victim, or any other person with leave of the court. 5. Elder abuse and neglect in the workplace Employees who notify the appropriate person or organization about concerns of abuse under Protection for Persons in Care Act are legally protected from adverse action in the workplace (s. 18(1)). Employers cannot fire or discipline an employee for notifying the appropriate authority about a reasonable belief of abuse. 6. Confidential information Professionals, non-professional staff and volunteers must normally get consent from an older adult before disclosing personal or health information. The Protection for Persons in Care Act (s. 7(2)) says that a person is allowed to disclose confidential information when notifying an appropriate authority about concerns regarding abuse, subject to solicitor-client privilege (s. 7(3)). Under the Health Information Act (s. 35(1)(m)) confidential health information may be disclosed to any person if the custodian believes, on reasonable grounds, that the disclosure will avert or minimize an imminent danger to the health or safety of any person. Information may also be disclosed if a reasonable person would consider that the disclosure of the information is clearly in the interests of the individual and consent of the individual cannot be obtained in a timely way or the individual would not reasonably be expected to withhold consent (PIPA, s. 20(a)). See Section 8 regarding information subject to solicitor-client privilege. According to the PIPA, which applies to employees of private bodies (long term care facilities and non-profits), and the FOIPPA, which applies to public bodies (regional hospitals and government agencies), a practitioner may disclose confidential personal information, other than health information, without consent, for a number of reasons, including the following two reasons which are most relevant to elder abuse: To assist with a police investigation (PIPA, s. 20(f); FOIPPA, s. 40(1)(q)); Required or authorized by another law, such as to notify a designated agency about abuse (PIPA, s. 20(b); FOIPPA, s. 40(1)(e) and (f)). Practitioners who are employed by a public body may also disclose information without consent, if the head of the public body believes, on reasonable grounds, that the disclosure will avert or minimize an imminent danger to the health or safety of any person (s. 40(1)(ee)). Other practitioners may disclose information under PIPA if: 1. The disclosure of the information is necessary to respond to an emergency that threatens the life, health or security of an individual or the public (s. 20(g)); or 2. A reasonable person would consider that the disclosure of the information is clearly in the interests of the individual and consent of the individual cannot be obtained in a timely way or the individual would not reasonably be expected to withhold consent (s. 20(a)). 10