1. Judith Wahl Advocacy Centre for the Elderly wahlj@lao.on.ca www.acelaw.ca Advocacy Centre for the Elderly 20121

2.  2 Carlton Street, Suite 701 Toronto, Ontario M5B 1J3  Tel: 416-598-2656  Fax:416-598-7924  Email wahlj@lao.on.cawahlj@lao.on.ca  Website www.acelaw.cawww.acelaw.ca  To subscribe to ACE Newsletter list (emailed twice a year), send an email to gillardt@lao.on.cagillardt@lao.on.ca Advocacy Centre for the Elderly 20122

3.  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 Advocacy Centre for the Elderly 20123

4.  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 PowerPoint will be available on BOTH the ONPEA and ACE websites for downloading

5.  Reporting is Abuse is NOT the only answer to Elder Abuse  What is Mandatory reporting?  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 Advocacy Centre for the Elderly 20125

6.  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 Advocacy Centre for the Elderly 20126

7.  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 Advocacy Centre for the Elderly 20127

8.  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) Advocacy Centre for the Elderly 20128

9.  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  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 Advocacy Centre for the Elderly 20129

10.  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 Advocacy Centre for the Elderly 201210

11.  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 Advocacy Centre for the Elderly 201211

12.  Duty to report ◦ Child and Family Services Act - if victim is a child in need of protection ◦ Long-Term Care Homes Act - if victim is a resident and potential or suspected abuse/neglect as defined by that act ◦ Retirement Homes Act - if the victim is a tenant/resident and potential abuse/neglect as defined by that act ◦ Criminal Code - no specific duty to report however may voluntarily report crime/suspicion of crime ◦ Substitute Decisions Act - voluntary reporting options exist in particular circumstances if victim is an adult that is not mentally capable Advocacy Centre for the Elderly 201212

13.  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? Advocacy Centre for the Elderly 201213

14. To access full text of legislation go to http://www.e-laws.gov.on.ca Advocacy Centre for the Elderly 201214

15.  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 LTCHA and are required to comply with provisions of legislation and regulations  LTC homes are subject to inspection and requirements for compliance by MOHLTC Advocacy Centre for the Elderly 201215

16. 24. (1)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. Advocacy Centre for the Elderly 201216

17.  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/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 Advocacy Centre for the Elderly 201217

18. 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. Advocacy Centre for the Elderly 201218

19. LTCHA 2. (1)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)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; Advocacy Centre for the Elderly 201219

20. 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)(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)(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. Advocacy Centre for the Elderly 201220

21.  ‘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 S. 24 (3) Advocacy Centre for the Elderly 201221

22. 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: (4) 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. Advocacy Centre for the Elderly 201222

23.  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 24. (1)  DIRECTOR is a person at the MOHLTC not the “director” or administrator of the LTCH Advocacy Centre for the Elderly 201223

24.  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.)  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 Advocacy Centre for the Elderly 201224

25.  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.24(1)  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. LTCHA, s. 175(1) Advocacy Centre for the Elderly 201225

26.  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 Advocacy Centre for the Elderly 201226

27. 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 Advocacy Centre for the Elderly 201227

28. 19. (1)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)(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. Advocacy Centre for the Elderly 201228

29. Policy to promote zero tolerance 20. (1)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)(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)(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. Advocacy Centre for the Elderly 201229

30. 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. Advocacy Centre for the Elderly 201230

31. Notification re incidents LTCHA REGULATION s. 97. (1)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)(2) The licensee shall ensure that the resident and the resident’s substitute decision- maker, 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)(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. Advocacy Centre for the Elderly 201231

32. LTCHA REGULATION, s. 98.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. Advocacy Centre for the Elderly 201232

33. LTCHA REGULATION, s. 99.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. Advocacy Centre for the Elderly 201233

34. Offence of failure to report (5)(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. Advocacy Centre for the Elderly 201234

35. Offences re suppressing reports (6)(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. Advocacy Centre for the Elderly 201235

36.  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 Advocacy Centre for the Elderly 201236

37. 25. (1)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)(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. Advocacy Centre for the Elderly 201237

38.  Whistle-blowing protections to protect against retaliation  Possible complaints to Ontario Labour Relations Board if anything done in retaliation for reporting Advocacy Centre for the Elderly 201238

39. Whistle-blowing protection 26. (1)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. Advocacy Centre for the Elderly 201239

40. Interpretation, retaliate (2)(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)(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)(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. Advocacy Centre for the Elderly 201240

41. Complaint to Ontario Labour Relations Board 27. (1)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)(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). Advocacy Centre for the Elderly 201241

42. To access full text of the legislation go to http://www.e-laws.gov.on.ca Advocacy Centre for the Elderly 201242

43.  Retirement Homes are residential accommodations 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 Advocacy Centre for the Elderly 201243

44.  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 Registrar who is the senior management person who has various duties under the act including the requirement to receive the reports of abuse and neglect Advocacy Centre for the Elderly 201244

45. RHA 75. (1)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. Advocacy Centre for the Elderly 201245

46.  When victims/ potential victims are residents/tenants in a “Retirement Home”  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 Advocacy Centre for the Elderly 201246

47.  How do you know if a place is a 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  Duty to report also applies when Retirement home resident/tenant is outside the retirement home  FOR EXAMPLE - Applies if resident/tenant of a retirement home has gone to hospital/physician/is attending a program 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 Advocacy Centre for the Elderly 201247

48. 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. Advocacy Centre for the Elderly 201248

49. 2. (1)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; Advocacy Centre for the Elderly 201249

50. RHA REGULATIONS 1. (1)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; Advocacy Centre for the Elderly 201250

51. “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 self- worth, 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. Advocacy Centre for the Elderly 201251

52. 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, (3) (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. Advocacy Centre for the Elderly 201252

53.  RHA, s.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… RHA, s.75(1)  So its ANYONE and EVERYONE ◦ Except residents  RHA, s.75(2) A resident is not required to make a report under subsection (1) but may do so. RHA, s.75(2) Advocacy Centre for the Elderly 201253

54. Duty on medical practitioners and others (3)(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. Advocacy Centre for the Elderly 201254

55.  RHA, s.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 RHA, s.75(1)  The Registrar is a person at the Retirement Home Regulatory Authority Advocacy Centre for the Elderly 201255

56. 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-ASK-RHRA (1-800-275-7472) *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. Advocacy Centre for the Elderly 201256

57.  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 Advocacy Centre for the Elderly 201257

58. 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 Advocacy Centre for the Elderly 201258

59. 67. (1)67. (1) Every licensee of a retirement home shall protect residents of the home from abuse by anyone. Same, neglect (2)(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)(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. Advocacy Centre for the Elderly 201259

60. RHA s 67 (4)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. Contents (5)(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. Advocacy Centre for the Elderly 201260

61. RHA REGULATION, s.15 (1)RHA REGULATION, s.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)(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. Advocacy Centre for the Elderly 201261

62. (3)(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; Advocacy Centre for the Elderly 201262

63. (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. Advocacy Centre for the Elderly 201263

64. 98. (1)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. Advocacy Centre for the Elderly 201264

65.  Require an inspector to conduct an investigation  As a result of investigation, RHA provides for various actions that the Registrar/RHRA may take to ensure compliance by Licensee with legislation Advocacy Centre for the Elderly 201265

66. s.75 (5)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)(6) Sections 77 to 79 apply with necessary modifications to an inspector acting under subsection (1). Advocacy Centre for the Elderly 201266

67.  Whistle-blowing 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 Advocacy Centre for the Elderly 201267

68. RHA, s.115(1)RHA, s.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)(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)(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). Advocacy Centre for the Elderly 201268

69. Threats against resident made to others (4)(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)(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)(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)(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. Advocacy Centre for the Elderly 201269

70. RHA REGULATION, s. 116. (1)RHA REGULATION, s. 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)(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)(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)(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)(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. Advocacy Centre for the Elderly 201270

71. To access full text of the legislation, go to http://www.e-laws.gov.on.ca Advocacy Centre for the Elderly 201271

72.  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 Advocacy Centre for the Elderly 201272

73. 27. (1)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)(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)(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)(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. Advocacy Centre for the Elderly 201273

74. 62. (1)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)(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)(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)(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. Advocacy Centre for the Elderly 201274

75. 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. Advocacy Centre for the Elderly 201275

76. 2. Evidence that “ serious adverse effects” are occurring or may occur as a result. What are “ serious adverse effects” ? 27. (1)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)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 Advocacy Centre for the Elderly 201276

77.  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 Advocacy Centre for the Elderly 201277

78. Personal Health Information Protection Act 2004 43. (1)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 ; Advocacy Centre for the Elderly 201278

79. Personal Health Information Protection Act 2004 40. (1)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. Advocacy Centre for the Elderly 201279

80.  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 Advocacy Centre for the Elderly 201280

81.  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! Advocacy Centre for the Elderly 201281

82.  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 Advocacy Centre for the Elderly 201282

83.  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 Advocacy Centre for the Elderly 201283

84.  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 Advocacy Centre for the Elderly 201284

85.  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? Advocacy Centre for the Elderly 201285

86.  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 Advocacy Centre for the Elderly 201286

87.  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 Advocacy Centre for the Elderly 201287

88. Assault, s. 265 Assault with a weapon or causing bodily harm, s. 267 Forcible Confinement, s. 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 201288

89.  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 201289

90. Advocacy Centre for the Elderly 201290  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.

91. 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 201291

92. Advocacy Centre for the Elderly 201292 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;

93. Advocacy Centre for the Elderly 201293 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.

94.  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 201294

95. 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 201295

96. Advocacy Centre ofr the Elderly 201296 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

97.  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 201297

98. Advocacy Centre for the Elderly 201298  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?

99. Advocacy Centre for the Elderly 201299  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

100. 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 home/ 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 2012100

101. Advocacy Centre for the Elderly 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

102.  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 2012102

103. Advocacy Centre for the Elderly 2012  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?

104. 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 2012104

105. Advocacy Centre for the Elderly 2012 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.

106. 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 2012106

107. 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 2012107

108. Final Points to remember: Archived Webcast: available on the ONPEA, Sunnybrook and ACE websites after the event. Download Webcast * Judith’s PPT will be available also on the ONPEA and ACE website Registration: If you have not yet registered we would encourage you to still go to the ONPEA Website to sign up. * ONPEA can inform you of upcoming events, webcasts, regional conferences, etc. On-line evaluation: sent in a few days to obtain your feedback. * Allows us to determine if we should proceed in hosting future events * Provides an opportunity for you to share your ideas for future topics of interest.WebcastONPEA Website ONPEA Video Conference and Webcast Elder Abuse and the Legal Duty (or not) to Report hosted in partnership with