Volume 9, Number 2, July 1998
Legislated Trust: Protection
for Persons in Care in Alberta
Janet C. Ross-Kerr, PhD, Professor
Faculty of Nursing, University of Alberta, Edmonton
Abuse of vulnerable individuals has long presented particularly
difficult issues for society in respect of children, women,
the disabled and the elderly. However, the movement to protect
the rights of women and those of children began at least two
decades prior to that directed at protecting the rights of
vulnerable adults, a group comprised of adults with disabilities
and the frail elderly. The inability of many vulnerable adults
to prevent and protect themselves from abuse has led to considerable
societal concern over the need to protect the welfare of such
individuals, and more recently, the frail elderly have been
a particular focus of concern. Efforts to generate legislation
to describe the nature and meaning of abuse, specify criteria
for determining its occurrence, and stipulate penalties to
be applied to institutions and individuals involved in abuse,
follows a great deal of discussion and debate about abuse over
a considerable number of years.
The ethical obligations of society to the increasing number
and proportion of elderly people in the population are reflected
in the growing number of jurisdictions that have determined
legislation to be a critical element in preventing and dealing
with abuse. The movement to develop and pass laws to deal with
situations of abuse is widespread and reflects concern for
the problem in the Western world. Although legislation enacted
to date in various jurisdictions deals with actual abuse and
penalties for perpetrators in cases where abuse is deemed to
have occurred, the larger purpose of such legislation is deterrent
in nature. The best interests of vulnerable adults are clearly
served by more widely educating the public about acceptable
behaviour in relation to the frail elderly and those who are
vulnerable by virtue of particular disabilities, in order to
prevent abuse from occurring.
The Alberta Protection for Persons
in Care Act
The need for legislative protection to support the personal
autonomy of a group of adults provides an indication that the
group in question is viewed as highly vulnerable and that prevalence
of abuse has been deemed to be widespread. It has been difficult
to establish the prevalence of abuse because it has been hidden
behind closed doors and because of the variation in interpretations
of the meaning of abuse. Although abuse has been difficult
to study, most of the research which has been done has addressed
abuse in community-dwelling adults. A Canadian study addressing
this population indicated overall prevalence to be as high
as 4%.1 It is possible that this figure could be much higher
if the adult population being cared for in all institutions
were included. In a longitudinal cohort study of community-dwelling
older adults, an adjusted 9-year prevalence of 1.6% was found,
and risk factors for abuse were identified as age, race, poverty,
functional disability and cognitive impairment.2 In
the latter study, there was also an indication that new cognitive
impairment was also related to abuse and neglect of older persons.
The 'Protection for Persons in Care Act', proclaimed in Alberta
in December 1997, came into force on January 5, 1998. This
legislation adds to the increasing body of such legalisation
in jurisdictions around the world, and its passage attests
to the need to address the highly complex personal issues which
form the context for abuse of vulnerable people, the majority
of whom are elderly and particularly vulnerable to such abuse.
The Act provides a means of assessing and addressing problems
related to abuse of adults being cared for in public funded
institutions, such as hospitals and continuing care facilities,
group homes, and lodges. All publicly funded facilities which
meet the criteria for inclusion in Social Care Facilities Review
Act (SCFRA) are identified as institutions to which the Persons
in Care Act applies. Legal protection is thus accorded to a
relatively large group of vulnerable adults being cared for
in certain public institutions, protection on which the law
had previously been silent. However, the restrictions relative
to institutions also mean that private institutions, services
provided by home care agencies, and care provided in private
care homes or other settings which do not meet the criteria
identified in the SCFRA, are excluded from the provisions of
the Act, whether or not public or private compensation was
received for the services provided. Directing the powers of
the Act to the protection of individuals only if they are resident
in certain categories of institutions means that a great number
of vulnerable adults will not have the protection of the law,
should they find themselves the subjects of abuse.
Issues in Reporting Abuse The Act provides for a complaint of abuse to be registered
by any individual, and section 4 stipulates that no reprisals
may be taken against a complainant except where the complaint
is judged as malicious and unreasonable. These provisions may
make an individual or agency suspecting client abuse much more
willing to register a complaint than they would have without
such protection. Despite the fact that most agencies and the
professional and non-professional caregivers who work within
them have the best intentions in relation to their clients,
and despite the fact that these organizations and individuals
have always had a duty to care, in the absence of clear definitions
of abuse and of a system for reporting problems experienced
by particular clients, reluctance to report abuse has been
common. The Act also allows clients, family members, friends
or any other interested party to lodge a complaint relative
to abuse of a person being cared for in an institution. From
the perspective of an agency and its caregivers, what the Act
does is to identify the reporting of abuse as a duty. Therefore,
failure of an agency or caregiver to report clear indications
of abuse would represent failure to carry out their duty to
the client and, thus, become liable under the law.
Should an agency either knowingly or unknowingly be found
to have allowed abuse to occur, the consequences would be highly
detrimental to its credibility as a service provider. Therefore,
it is likely that institutions covered by the Act will endeavour
to institute measures to ensure that all clients are cared
for properly by staff, and that any evidence of abuse of clients
by family, friends or others will be treated seriously, investigated
and taken forward as indicated.
Nurses and other health professionals often care for adults
in institutional settings over long periods of time, and in
the process have an opportunity to observe their relationships
with others including other caregivers, family members, and
friends. If professional caregivers suspect abuse of the adults
in their care, the Act provides assurance that there is a legitimate
vehicle for putting forward specific concerns they may have
such as financial abuse of clients by family, friends or others.
Some agencies have actively discouraged the reporting of such
complaints in the past, believing that areas such as clients'
personal and financial affairs were private matters and not
the business of the agency or its employees. To raise an issue
of potential abuse of a client was commonly categorized as
a breach of confidentiality and, therefore, was thought not
to be in the client's best interest. Nurses and other caregivers
may find that their professional ethics and values may be enhanced
by the legislation, because institutional bureaucracies will
be hard-pressed to avoid acting on suspicions of client abuse.
In some situations in the past, nurses have felt that their
professional judgement has been compromised by the failure
of institutional hierarchies to act on their concerns about
the well-being of clients.
For clients and their families where the professional caregivers
believe that family members, friends or others may be taking
advantage of the client in particular ways, the Act may raise
painful issues about matters of certain kinds of abusive behaviour
which may have been present in relationships over a long period
of time. Clients have sometimes been reluctant to bring to
light such situations, not only because they feel powerless
as a result of weakened physical, mental or social resources,
but because they may have allowed and accepted this behaviour
over a long period of time because they feared their relationship
with the individual or individuals concerned would be damaged.
Conclusion
Abuse of a person represents a violation of trust. Ethical/moral
values respecting the dignity and worth of the person demand
scrutiny of the treatment of vulnerable adults by all those
who may relate to them personally or professionally. Ethical
principles such as autonomy, maleficence and non-maleficence
are at the root of questions concerning the care of vulnerable
adults, and provide a basis for the passage and implementation
of legislation designed to protect the welfare of such people.
There will be pressure to expand the provision of the Protection
for Persons in Care Act since it excludes the majority of those
who are vulnerable to abuse and neglect. Nevertheless, it is
an important first step in providing a means for ensuring that
respect for the vulnerable adult is more than a theoretical
concept and is applied in practice to enhance the health and
welfare of those in society who are unable to ensure its application
to themselves.
References
- Podniecks, E., Pillemer, K., Nicholson, J., Shillington,
T. & Frizell, A. (1990). National Survey on Abuse of the
Elderly in Canada. Toronto: Ryerson Polytechnical Institute.
- Lachs, M.S., Williams, C., O'Brien, S., Hurst, L. & Horwitz,
R. (1979). Risk factors for reported elderly abuse and neglect:
a nine-year observational cohort study. Gerontologist. 37(4),
469-74.
Protection
for Abused Adults in Alberta
Noela Inions
Barrister & Solicitor, Edmonton
Rationale
Adult protection legislation came into force in Alberta on January
5, 1998, with proclamation of the Protection For Persons In Care Act.1 The
purpose of this Act is to protect adults in care by requiring criminal
record checks, mandatory reporting of abuse, and mandatory investigation
of complaints.
Historically, the parens patriae2 jurisdiction enables
the state to protect vulnerable persons such as individuals with legal
disabilities. It is a fundamental expectation both in law and ethics,
that patients should not be abused or neglected. The good intentions
in this legislation are obvious, but a look at the details reveals
some difficulties.
Overview of the Law
This Act requires every individual or service provider who "has reasonable
and probable grounds to believe and believes that there is or has been
abuse against a client"3 to report the abuse to the Minister
of Community Development or others as specified. A client is any adult
who receives services from an agency. The duty to report exists even
if the information is confidential and disclosure is prohibited under
other legislation, but does not extend to information covered by solicitor-client
privilege. Persons reporting are protected against adverse employment
action and against legal action, unless the complaint was made maliciously
or without reasonable and probable grounds. Failure to report abuse
and known false complaints are offences punishable with a maximum fine
of $2,000 and in default, a maximum of six months imprisonment. Reporting
may be done anonymously
The definition of abuse in the Act is: (i) intentionally causing
bodily harm, (ii) intentionally causing emotional harm, including but
not limited to, threatening, intimidating, humiliating, harassing,
coercing or restricting from appropriate social contact, (iii) intentionally
administering or prescribing medication for an inappropriate purpose,
(iv) subjecting to non-consensual sexual contact, activity or behaviour,
(v) intentionally misappropriating or improperly or illegally converting
money or other valuable possessions, or (vi) intentionally failing
to provide adequate nutrition, adequate medical attention or other
necessity of life without a valid consent.4
This definition uses the word 'abuse' but arguably also covers neglect
of clients, as the last clause includes the failure to provide necessities
of life. Only abuse which occurs after the Act came into force is reportable.
It remains to be seen how these provisions will be interpreted in situations
involving medication of the elderly and use of restraints.
Agencies covered by the Act include hospitals, lodges, nursing homes,
facilities under the Social Care Facilities Review Committee Act (that
is group homes), and institutions or organizations designated by regulation.
It is interesting to note that regional health authorities are not
in this definition. Agencies have an obligation to make this Act available
to service providers, employees, and clients, which has resource implications.
A criminal records check is required for successful applicants for
employment and new volunteers.
Abuse, or a situation of potential abuse, may be made directly to
the police, the Minister of Community Development, or to a committee
or entity as appropriate (i.e. professional disciplinary body). The
complaint must be investigated as quickly as possible. The investigator
is entitled to enter the agency at a reasonable hour and to inspect
and copy records. The records available to the investigator do not
include financial operational records or medical records, unless the
person or their guardian consent to release of the medical record.
The investigator must prepare a final report to the Minister of Community
Development and may make recommendations including review or alteration
in funding for Crown agencies, disciplinary action against an employee
or service provider, dismissal of the complaint, or any other appropriate
recommendation. Legal action may not be taken against the investigator
for anything done in good faith under the legislation.
The decision of the Minister is binding and the Minister may approve
the recommendations in whole or part, reject the recommendations, order
further investigation, or take any other action that the Minister deems
appropriate. The Minister must provide a copy of the decision to the
person reporting and to the agency involved.
". . . although a mandatory reporting requirement exists, the legislation
does not establish a parallel obligation to protect or assist the person
who has been abused." - Noela Inions
The experience in Alberta5 with approximately five months
of the Act being in force, is that a total of 350 files have been opened
(from January 5 to May 31, 1998) for allegations reported under this
legislation. Of these 350 cases, 276 (79%) have been sent to the Minister
of Health. Cases reported to the Minister of Health have been referred
on to the police, professional associations or the Health Facilities
Review Committee for investigation.
Analysis of the Protection for Persons in
Care Act
This section will analyse the new legislation in Alberta, with a
focus on requirement for reporting and criminal records checks.
A. Reporting The Alberta legislation requires all situations
of abuse against a client to be reported. Although the legislation
defining abuse may appear clear, the difficulty of identifying abuse
in a standardized manner in the clinical setting should not be underestimated,
even with improved assessment criteria.6 Substantial penalties
for the failure to report exist, and healthcare providers may be concerned
about their ability to comply with these new requirements.
The Alberta provision applies to all adults receiving services (in
contrast to other jurisdictions where adult protection applies to adults
who are unable to properly care for themselves), and would even include
a clinic visit at a hospital. It is curious that services provided
by home care and public health are not included.
One of the difficulties with this legislation is the loss of autonomy
for competent adults. Many of the clients affected by this Act are
mentally competent persons making their own decisions, pursuant to
their right of self determination and autonomy. It is acknowledged
that due to a variety of factors including fear of retaliation, loss
of family or caregivers, loss of family honour, and a lack of self-esteem
and assertiveness, abused persons often may not report the abuse or
seek help.7 However, it is argued by the writer that particularly
when the client is competent, the decision should be left with the
client as to what is in their best interest and the wishes of the client
should be respected.
Mentally competent clients have legally protected rights of autonomy.
The most insignificant medical procedure could not be done without
first obtaining informed consent from the client. The mentally competent
client has the legally protected right to refuse unwanted medical treatment,
even where refusal may result in death.
Clients have increasing control over their lives with new legislation
which creates the legal ability to appoint enduring powers of attorney
for financial and personal matters and to enforce living wills. Ironically,
control over the disclosure of such sensitive information as reporting
abuse has been taken away without any requirement for client consent,
consultation, or other involvement.
Competent clients may resent this intrusion in their lives. For instance,
a prominent or public figure may wish to choose when and to whom information
about a spousal assault is disclosed. Once this information is disclosed,
for example to the police, criminal charges may be laid and public
legal proceedings begun. It is interesting to note that only crimes
involving national security such as high treason must be reported under
the Criminal Code. The client must face the consequences of disclosure
(i.e. reputation and career opportunities may be jeopardized). The
argument can be made that it is only fair that the competent client
should remain the decision maker in regard to when and to whom the
information is disclosed.
When the abuser provides financial support for the person abused
as well as other dependents, financial hardship may result from the
disclosure. Another interesting note is that although a mandatory reporting
requirement exists, the legislation does not establish a parallel obligation
to protect or assist the person who has been abused. The abused client
who returns to the community may be in serious danger where protections
such as restraining orders may be ineffective. The client may not have
participated in the disclosure of information, and may not have had
the opportunity to make alternate plans. Although abuse cannot be condoned,
the right of the client to make the decision to temporarily stay in
an abusive situation or to choose the time of disclosure may be important
components in achieving the psychological strength and developing the
support system needed to make a successful change.
"Is it possible that in some circumstances clients will avoid necessary
health care to avoid disclosure of abuse against their wishes?" - Noela
Inions
Another difficulty with this legislation is the erosion of privacy
and the erosion of the ability to fulfill the duty of confidentiality
of health information. Clients disclose sensitive information to healthcare
professionals with the expectation that the information will be kept
confidential and only used to provide appropriate healthcare services.
Clients may have no idea that when they provide a medical history
to obtain healthcare service for treatment of an illness or injury,
or when they release information to a service provider of an agency,
that their physician or nurse has a mandatory duty to report abuse.
What about situations where the client expressly states that the information
is not to be disclosed? Avoiding medical treatment to avoid unwanted
disclosure of health information has been reported in other situations
such as sexual assaults, where information may end up in the hands
of the alleged abuser. Is it possible that in some circumstances clients
will avoid seeking necessary health care to avoid disclosure of abuse
against their wishes? These situations may create ethical conflicts
between legislative obligations and agency policies, and long standing
values and codes of ethics of healthcare professionals.
Alberta legislation is sparse on issues such as due process and procedural
fairness, which other jurisdictions (i.e. Ontario and Manitoba) address
at length. For example, the Alberta legislation does not require the
notification of the Regional Health Authority of the site which is
the subject of the complaint, although this could create implications
for the site from a damaged reputation to a decrease in funding. The
legislation requires the Minister to provide a copy of the decision
to the person who reported the abuse and the agency. Notification of
the person who has allegedly been abused is not addressed.
Similarly, notification of the alleged abuser is not addressed. Although
this is not a situation where the alleged abuser is likely to lose
their liberty at the outset, this is a potentially serious situation
for the person accused of abuse. Procedural fairness includes a bundle
of rights such as notice of the case against you, notice of a hearing,
the right to be represented, the right to be heard, and the right to
a fair and impartial hearing. A complaint of physical or sexual abuse,
whether or not this is substantiated, could have a marked effect upon
a distinguished career.
B. Criminal Records Check The Alberta legislation requires
agencies to ensure that a criminal records check is provided by every
successful applicant for employment and every new volunteer.8 A
similar requirement was not located in any of the other provinces adult
protection legislation, however, some jurisdictions require an annual
records check for renewal of licenses for healthcare professionals.
The purpose of this requirement is to provide an extra measure of safety
for clients by ensuring that persons with unsuitable backgrounds are
screened out and precluded from providing services to clients.
One of the practical issues which arises is the interpretation of
the categories of persons who must provide criminal records checks.
Does an applicant for employment include persons who are not usually
considered employees such as physicians, students, researchers, and
contractors? Similarly, does the word 'volunteer' include all members
of Boards of Directors, foundations, auxiliaries, and every high school
student that helps to organize a raffle? Even where the cost of the
check is free to the volunteer, the cost is still born by the taxpayer.
Once a criminal records check has been obtained, can this document
be relied upon for persons being hired at various places within a region,
for example at a site which is privately run within a region? How long
is a records check valid? In view of the time and costs incurred and
inconsistency in approach, agencies may tend to interpret these provisions
in their narrowest manner, and not pursue record checks unless they
are clearly required.
Presuming that this legislation will provide greater protection for
clients by ensuring better selection of service providers, some important
groups have been left out such as physicians, who are rarely employees
in healthcare facilities in Alberta. It seems inconsistent that a new
physician who happens to be an employee requires a criminal records
check, but a colleague who is making a first application for hospital
privileges and may be doing identical work but is an independent contractor,
does not require this precaution. A nurse who is an employee in a hospital
must provide a records check, but a nurse employed in other areas with
greater potential for unobserved abuse, such as home care and public
health is not required to provide the same. Similarly, record checks
are not required for persons who are existing employees, or who may
be transferring to different positions, areas, sites and facilities
of the same employer. It is curious that employees without direct patient
contact are not excluded.
One of the drawbacks is that criminal records checks may become false
security, and result in less attention being paid to other hiring and
selection tools such as interviews and references. A clear record could
become misinterpreted as an indication that the candidate is suitable
for the position. However, a 'hit' may mean a variety of things, including
a similar or identical name belonging to a different individual than
the new applicant for employment or volunteer. A criminal record can
be cleared after a certain length of time based upon the application
of the convicted person. It must be emphasized that the records check
only indicates convictions, and not those individuals who have faced
serious charges which were not proven or which are abandoned.
Different law enforcement jurisdictions may provide varying levels
of detail, for example whether a person has been repeatedly charged
but not convicted of a relevant offence. Data bases are not completely
current, as data may be backlogged awaiting entry. A person who has
moved from jurisdiction to jurisdiction, may not have a complete record
in the jurisdiction of their present residence where the search will
be conducted. Search results may not be available from some foreign
jurisdictions, or may involve extensive delays.
A further practical difficulty once the criminal records check is
obtained is determining the relevance of and weight to be given to
the information received. Difficult judgments may need to be made.
Where information is misinterpreted or where a difference of opinion
exists as to the significance of the information, the applicant for
employment may disagree with the assessment made.
Other considerations include the 'window of opportunity' being lost,
for volunteers who may lose enthusiasm after a certain amount of aggravation
has been experienced and time has passed since they indicated an interest
in the volunteer work. Employers bound by this legislation may have
similar difficulty when competing for new applicants for employment
when the applicants are in short supply or can readily go elsewhere
without the requirement of a criminal records check. A declining number
of applicants may arise which could become problematic with the impending
shortage of certain healthcare providers, and critical staffing levels.
The record check could create an unfair competitive edge for persons
able to quickly produce their criminal records searches.
Implications of this new legislative requirement include costs of
implementation, such as analysis and planning, development of policy
and procedure, staff education, communication, and labour and resources
even where the cost and time required to pick up the criminal records
check is passed along to applicants. The cost of any new initiative
is an important consideration at this time when the healthcare system
is facing serious resource allocation and cost constraint pressures.
Will the benefits justify the costs? Ironically, at a time when government
is pursuing initiatives for deregulation with less red tape and bureaucracy,
this legislation establishes further bureaucracy and requirements.
Conclusion
The good intentions of this legislation must be recognized, as this
step has been taken to protect adults in care from abuse. The very
existence of this legislation emphasises that abuse is unacceptable.
Of concern is the applicability of the legislation to adults who are
mentally competent and generally able to care for themselves.
Mandatory reporting of abuse is a blunt instrument and a reactive
step. The writer would argue in favour of voluntary reporting with
client consent and involvement where the client is mentally competent.
The patriarchal system of mandatory reporting is consistent with the
parens patriae jurisdiction and is more appropriate where the client
is not mentally competent and unable to care for him/herself. Alternatively,
clients could be defined under the Act as persons unable to care for
themselves, removing mentally competent adults from this legislation
altogether.
The writer would also argue in favour of less emphasis upon reporting
of abuse, and greater emphasis upon assisting adults in need of protection.
Legislative provisions creating legal obligations to provide advocacy
services, resources, and support systems for abused adults are essential
to enable real change and progress.9
Perhaps the most salient question is, will this legislation help
abused adults in Alberta? Will they receive safer care in agencies?
Will fewer adults be abused? Will abused adults receive better protection
and more effective intervention?
Further Readings
J. Bond and R. Penner. "Perceived Effectiveness of Legislation Concerning
Abuse of the Elderly: A Survey of Professionals in Canada and the United
States." Canadian Journal on Aging. (1995) 14:2 at 118.
R. Gordon. "Adult Guardianship and Adult Protection Legislation in
Canada: Recent Reforms and Future Problems." Canadian Journal On Aging.
(1995) 14:2 at 89.
P. McDonald et al. Elder Abuse and Neglect in Canada. (Toronto: Butterworths)
1991.
G. Robertson, Legal Approaches to Elder Abuse and Neglect in Canada:
In Abuse and Neglect of Older Canadians: Strategies For Change. M.
MacLean (Ed.) (1995) at 55.
References
- S.A. 1995, Ch. P-19.5, as am.
- Henry Black, Black's Law Dictionary, 5th ed., (West Publishing
Co.: St. Paul), 1979, at 1003.
- Supra, Note 1. s. 2(1).
- Ibid., s.1(a).
- Edith Baraniecki, Alberta Health. Protection for Persons in Care,
Issues Management. Corporate Services, personal communication.
- J. Ashley and T. Fulmer, "No Simple Way to Determine Elder Abuse" Geriatric
Nursing (Sept/Oct. 1988) 9:5 at 286, M. Sengstock et al., "Identification
of Elder Abuse in Institutional Settings: Required Changes in Existing
Protocols" Journal of Elder Abuse & Neglect (1990) at 31, L. Phillips, "Elder
Abuse - What Is It? Who Says So?" Geriatric Nursing (May/June 1983)
at 167.
- Supra note 43, at 21 and 22, W.Roach Ed., "Legal Review" Topics
in Health Record Management (Sept. 1989) at 71.
- Supra, note 1, s.5(3).
- E. Pittaway and E. Gallaher, A Guide to Enhancing Services For
Abused Older Canadians.(Family Violence Prevention Division, Health
Canada) 1995, E. Podnieks, Elder Abuse: It's Time We Did Something
About It. (National Clearinghouse on Family Violence: Health and
Welfare, Canada) 1989, R. Breckman and R. Adelman, Helping Elderly
Victims of Abuse and Neglect. (Beverly Hills, Ca: Sage Publications)
1988.
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