The Canadian Centre for Elder Law, a division of the BC Law Institute at UBC, has released A Practical Guide to Elder Abuse and Neglect Law in Canada:
This comprehensive resource includes snapshots of the law in each of the thirteen provinces and territories, a comparative table that allows for quick reference, a set of guiding principles for working with vulnerable adults, and sections that discuss mandatory reporting of abuse and neglect, rules around confidentiality of personal and health information, and the relationship between mental capacity and elder abuse. The guide also contains a lengthy list of resource agencies.
The Guide is available in English and French.
Although there is a lot of good material in this paper, I do notice some omissions that are quite important.
1. In the section on the Criminal Code (section 5 “Is Elder abuse and neglect a crime?") there is reference to theft but not to theft by person holding a power of attorney. Abuse of power of attorney is one of the most common forms of elder abuse against seniors. In our practice at the Advocacy Centre for the Elderly that is one of the common issues on which we litigate to recover property and funds misappropriated by attorneys and on which we assist clients in contacting the police to engage the criminal process.
That is also a topic on which we frequently lecture to health and social service providers ( the primary audience this guide is directed to) as well as seniors and their families because most people do not know that misuse of a POA is a form of theft. Referencing theft as an elder abuse offence alone does not make people connect the dots to the abuse of a POA.
2. The section on “Mental Capacity and Consent” makes it appear that someone would be "legally incapable" only if a judge made such a finding in court. This is not correct in Ontario. There are a variety of processes the result of which would be that a person could fairly and appropriately be treated as mentally incapable for particular purposes. A chart that described "Who Assesses Capacity Under What Circumstances" appears on the ACE website at http://www.acelaw.ca that explains this.
Not understanding capacity and incapacity and how it is determined would be very problematic for persons who are seeking to assist others in matters of abuse. This could result in either inappropriate intervention without the consent and involvement and direction of the older adult that is being victimized or being potentially victimized, or under intervention which leaves the incapable adult at risk. Giving the impression that only a judge can make a determination of incapacity could result in the latter.
3. In respect to the Provincial snapshots, I will comment only on the snapshot of the Ontario Law on page 27 as I practice in Ontario. I leave it to others to review their own provincial legislation.
This section, in an effort. I assume, to be simple, is a bit misleading unless one reads it carefully. The subsection entitled "Elder Abuse and Neglect in the Workplace" could make persons who work in places other than in a long term care home think that they can report suspected abuse and neglect to a third party without concern of possible dismissal etc however the s 26 referenced is in the Long Term care Homes Act and ONLY applies to reports in respect to abuse/ neglect/ suspected abuse etc in a long term care home. The first part of the section on confidential information also applies only in a long term care home setting.
Additional interpretative information in explanation of the other sections referenced in the privacy legislation applicable in Ontario is warranted because too often, in my experience, I have come across situations where various parties such as health and social service providers who have contact with older adults are looking for the quick fix , a fast way of "reporting" to someone else about the problems that they think the senior is experiencing. This is done despite the fact that it is that very service or provider that should be trying to talk with the senior, work with that senior to assist him or her to address the abuse. Releasing private information to another party in mistaken belief that they can do something more than the reporting service may not accomplish anything and only delay assistance to the senior. Disclosing private information to a relative or friend that , unknown to the service provider, may be the abuser make cause even greater problems for the senior. With the disclosure that the service provider thinks that the senior is being abused, that abuser now knows that the abuse has been detected although not yet connected to him or her. That just enables the abuser to hide his or her tracks. I realize that this section of this paper is intended only as a summary of the law however a bit more detail about interpretation would have been helpful.
My last comment is that this section has a major omission. It does not refer to section 27 and 62 of the Substitute Decisions Act which provides for reports to be made to the Public Guardian and Trustee if it is believed that an adult is not mentally capable and is at risk of serious harm to their property and/ or person. The OPGT may investigate and potentially can take steps to become the victim’s Guardian of property or the person to protect that person from harm.
This was the route that Ontario chose to take, having this intervention available to protect adults that lack capacity rather than the adult protection models that are in other provinces that are modeled after child protection and potentially apply to both capable and incapable person if the court determines that the adult is "in need of protection". The SDA sections apply to persons in any setting, whether long term care or in the community or in any other setting.
I also want to correct the website information for the Advocacy Centre for the Elderly on page 59. The correct address of the ACE website is http://www.acelaw.ca.
Elder abuse is a complex and difficult issue. This summary paper (with the addition of the Substitute Decisions Act reference above) does reference that legislation that directly includes the words “abuse and neglect’ in some way, however there is often other legislation/ other law / legal process that can be used to assist a senior that has been victimized in some way. I encourage anyone seeking to assist a senior that has been victimized or abused in some way to think creatively in seeking remedies for the senior. Sometimes its not the formal legal process that is of greatest assistance, but it’s the advocacy to help the senior regain control over assets, get new housing, regain access to their own accommodation, get connected to social supports and get access to health and social services that assists the most.
We will be following up directly with the writers of this paper as well as 6 Associations to whom it was directed to give them this additional information. As this document came to my attention and the attention of others through Slaw I also thought it appropriate to comment here.
ADVOCACY CENTRE FOR THE ELDERLY- Judith Wahl,B.A., LL.B. Executive Director