Legislative Framework and Service Provision  Regarding Abuse  and/or Neglect of Older Adults  in Manitoba

Manitoba Report: Abuse of Older Adults Legislative Framework and Service Provision Regarding Abuse and/or Neglect of Older Adults in Manitoba Kerstin Stieber Roger Jane Ursel Presented to: The Manitoba Seniors and Healthy Aging Secretariat Submitted by: RESOLVE University of Manitoba April 2007
Manitoba Report: Abuse of Older Adults Table of Contents Acknowledgements.............................................................................................................. i List of Tables and Figures.................................................................................................. ii EXECUTIVE SUMMARY OF REPORT ..........................................................................3 RECOMMENDATIONS ....................................................................................................6 List of Terms .......................................................................................................................8 Part 1 ­ BACKGROUD.......................................................................................................9 Goal of Review.................................................................................................................9 Introduction to Themes ...................................................................................................9 Manitoba Resources: Calls for Information and Data Collection ...............................11 Data on Incidence of Abuse and/or Neglect of Older Adults .......................................17 Part 2 ­ PUBLIC AND PROFESSIONAL KNOWLEDGE AND ATTITUDES ON ABUSE AND/OR NEGLECT OF OLDER ADULTS .....................................................23 Section A ­ Methods.......................................................................................................23 Limitations to the Selected Methods.............................................................................27 Section B ­ Summary of Findings from Survey ............................................................28 Section C ­ Summary of Findings from Older Adult and Professional Interviews.....40 Older Adult Interviews.................................................................................................40 Professional Interviews and Focus Group ...................................................................44 Part 3 ­ SUMMARY OF LEGISLATIVE FRAMEWORK PROVIDING PROTECTION TO OLDER ADULTS ............................................................................47 Introduction ...................................................................................................................47 Discussion of Primary Themes......................................................................................59 Endnotes ............................................................................................................................66 References..........................................................................................................................67 Appendices.........................................................................................................................69 APPENDIX A ­ Definition of Capacity and Competence in Manitoba .......................70 APPENDIX B ­ Research Instruments .........................................................................71 APPENDIX C ­ List of Legislation and Related Regulations ......................................88 APPENDIX D ­ Provincial Summaries.........................................................................92
Manitoba Report: Abuse of Older Adults i Acknowledgements We would like to acknowledge the funder, the Province of Manitoba (Manitoba Seniors and Healthy Aging Secretariat), for contracting Research and Education for Solutions to Violence and Abuse (RESOLVE) to do this review. Thank­you to Dianne Bulback, and, the research assistants who participated in important ways towards the final product of this review: Lucy Dean, Meredith Mitchell, Sharon Scharfe and Kimberly Baydak. The authors would also like to thank the ten older adults who agreed to be interviewed, the nine professionals, and all of the survey respondents. A thank­you also goes to Dr. Lori Wilkinson for her contribution towards the development of the new survey.
Manitoba Report: Abuse of Older Adults ii List of Tables and Figures Tables Table 1 ­ Elder Abuse Case Characteristics.........................................................................18 Table 2 ­ Type of Assault in Elder Abuse Cases ...................................................................19 Table 3 ­ Court Outcome by Relationship ............................................................................20 Table 4 ­ Sentencing Pattern by Relationship ......................................................................21 Table 5 ­ Summary of Survey Implementation......................................................................24 Table 6 ­ Summary of Demographics of Older Adult Participants........................................25 Table 7 ­ Summary of Demographics of Professional Participants ......................................26 Table 8 ­ Summary of Survey Respondent Demographics ....................................................28 Table 9 ­ Types of Abuse as Identified by Older Adult Interview Participants ......................42 Table 10 ­ Desirable Supports According to Older Adults ...................................................43 Figures Figure 1. Type of Caller to Seniors’ Abuse Line .................................................................13 Figure 2. Number of Calls to Seniors’ Abuse Line ..............................................................13 Figure 3. Types of Abuse Stated in Calls to Seniors’ Abuse Line ........................................14 Figure 4. Number of Intake Calls: Protection for Person’s in Care Office............................15 Figure 5. Age of Alleged Victim: Calls to Protection for Person’s in Care Office................16 Figure 6. Type of Alleged Abuse: Calls to Protection for Person’s in Care Office* .............16 Figure 7. Risk Over 60........................................................................................................29 Figure 8. General Awareness ..............................................................................................30 Figure 9. Know Whom to Call ............................................................................................31 Figure 10. More Media Coverage........................................................................................32 Figure 11. Knowledge of Laws ...........................................................................................33 Figure 12. Support for Mandatory Reporting for Self by Age of Respondent.......................34 Figure 13. Belief that M. R. Would Restrict Rights by Age of Respondent..........................35 Figure 14. Support for M. R. on Behalf of Older Adult by Level of Contact........................36 Figure 15. Support for M. R. for Healthy Older Adult Living Independently.......................37 Figure 16. Support for M. R. Older Adult with Some Health Concerns Living Indep……...38 Figure 17. Support for M. R. Older Adult with Diagnosis of Incompetence.........................39
Manitoba Report: Abuse of Older Adults 3 EXECUTIVE SUMMARY OF REPORT To begin, the recommendations section includes suggestions for proposals for work towards revising related Manitoba legislative frameworks, improved service provision, and, developing new future research. Part One of this review includes a statement of the goal of this review followed by this study’s primary objectives. An introduction of selected research follows which demonstrates key themes in the literature regarding elder abuse and/or neglect. Data collected by the Manitoba Seniors and Healthy Aging Secretariat and by the Protection for Persons in Care Office, on each of their services to Manitobans, is subsequently analyzed. Next, data provided to Research and Education for Solutions to Violence and Abuse (RESOLVE) from the Family Violence Court, as well as existing data from Statistics Canada, is summarized and reviewed. The conclusion drawn is that abuse and/or neglect of older adults is under­ reported, and that little is known about the range of types of abuse and/or neglect. Part Two outlines the methodology, the research instruments, and the outcomes of the methods selected. In total, nineteen interviews were completed: ten with older adults and nine with professionals working in the field. One focus group with professionals was held via conference call. One new survey was developed and implemented at five sites; it was distributed to 522 potential respondents, with a response rate of 168. It was found that mandatory reporting is supported in cases where an older adult is known to have a diagnosis of incompetence and is known to be living at risk. In all other cases, where older adults may experience some confusion or may be considered healthy, mandatory reporting was not always supported. Support was inversely related to age and degree of contact with older adults. It was also found that awareness of legislative frameworks and related issues is low in the general population. More education, care provision, and media visibility were suggested. Part Three includes selected legislative frameworks in Manitoba and across Canada that were reviewed: British Columbia (7), Yukon (6), Saskatchewan (6), New Brunswick (4), and Manitoba (8). Legislative framework relevant in Manitoba is discussed in the body of the text alongside a chart, whereas summaries of key points to the other provincial legislative frameworks exist in chart form in the Appendices. Four primary themes emerged as discussed in Part Three: definitions, mechanisms for reporting, capability and competence, and penalties. The legislative review demonstrates a general invisibility of specific issues as these may face older adults, an absence of useful definitions of abuse and/or neglect as these may relate specifically to older adults, gaps in reporting mechanisms, questions regarding competence assessment, and, gaps regarding penalties as dictated in the legislative frameworks.
Manitoba Report: Abuse of Older Adults Summary of Key Points General Themes
· Older Adults diagnosed as incompetent and living at risk should always be protected
· More education and care provision was prioritized by professionals
· More social supports prioritized by Older Adults
· Yukon and British Columbia seen as having most effective legislative frameworks Calls for Advice or Information Increasing
· 1,145 Seniors’ Abuse Line from 2001­07
· 3,057 Protection for Persons in Care Office line from 2001­05 Provincial Seniors’ Abuse Line (SAL)
· 31% of calls are from older adult victims
· 64% are third party calls on behalf of older adult
· Financial and emotional abuse info calls highest Provincial Protection for Persons in Care Office Line (PPCO)
· 49 % of calls concern Older Adults 80 years or older
· 87% of calls about Older Adults, although line is for all adults
· 67% of calls about physical abuse
· 20% of calls deal with emotional or financial abuse or both Abuse of Older Adults and Winnipeg Family Violence Court
· 526 Cases of Abuse (2.5% of all cases) heard by the Court from 1992­2002
· 64% of victims are female
· 77% of accused are male
· 63% of accused had a history of prior arrests
· 55% of cases involved charge of Common Assault
· 28% involved serious assault charges (aggravated assault, assault with weapon, etc.) Type of Abuse of Older Adult Case in the Court
· 60% of cases were spousal abuse
· 21% of cases involved friends, neighbours, and acquaintances
· 19% of cases involved intergenerational abuse o Intergenerational abuse cases more likely to result in conviction o Intergenerational offenders more likely to go to jail
· Older women 2x as likely as older men to be victimized
4 Manitoba Report: Abuse of Older Adults 5 Summary of Survey Responses Awareness of Abuse of Older Adult Correlated with Age
· 43% of Older Adults (50+) report high or very high awareness
· 37% of adults report (30­49) high or very high awareness
· 16% of young adults (under 29) report high or very high awareness Older Adult at Risk: Do You Know Who to Call?
· 50% Older Adults knew who to call
· 43% Adults knew who to call
· 20% Young Adults knew who to call
· 75% of all respondents reported a need for more media coverage of the issue Knowledge of Protective Legislative fFameworks much lower than Awareness
· 27% of Older Adults knew of some protective legislative frameworks
· 9% of adults
· 7% of young adults
· Public View of Mandatory Reporting (M.R.) on Behalf of Self
· 65% of all respondents support concept of M.R. if they themselves are at risk Inverse Relationship between Contact with Older Adult and Support for Mandatory Reporting
· 53% of high contact respondents supported M.R.
· 80% of low contact respondents supported M.R. Support for Mandatory Reporting Increases with Perceived Vulnerability of Older Adult
· 47% with regular contact supported M.R. in cases of healthy, independent older adult
· 71% with regular contact supported M.R. in cases of independent living older adult with health concerns
· 90% with regular contact supported M.R. in cases of older adult with diagnosis of incompetence
· Older Adults and professionals interviewed demonstrated similar results View that Mandatory Reporting Restricts Rights of Older Adult Increases with Age
· 50% of Older Adults agreed M.R. would restrict rights
· 44% Older Adults ambivalent (22% neither agree nor disagree, 22% disagree somewhat)
· 21% of Adults agreed M.R. would restrict rights
· 24% of Young Adults agreed M.R. would restrict rights
Manitoba Report: Abuse of Older Adults 6 RECOMMENDATIONS Legislative frameworks It is suggested that the Manitoba Seniors and Healthy Aging Secretariat consider developing a working group, in order to review the Yukon and British Columbia legislative frameworks, for the purposes of recommending amendments to relevant legislative frameworks in Manitoba. Priority areas for consideration include i. mandatory and voluntary reporting, ii. mandatory investigation. This Working Group could reflect key stakeholders regarding abuse and/or neglect of older adults, with consideration of representatives from the following: Department of Justice, Family Violence Prevention Branch (Department of Family Services and Housing), an affiliated Non­Governmental Organization (NGO), Older Adults from appropriate constituencies, Manitoba Advisory Council of Women (Chair), Department of Health (community and long term care), Manitoba Council on Aging, Manitoba Seniors and Healthy Aging Secretariat, and, a research expert in this area. Revisions to the following areas are to be considered: i. track protocols that regulate the assignment of, and agreements with, health care proxies and those assigned Power of Attorney, ii. address protocols that specify who has access to personal health information when older adults are known to be at risk, iii. expand expanded protection of older adults under Protection for Person’s in Care Act to community, and/or, expanding the Vulnerable Persons Living with a Mental Disability Act to include older adults, iv. address protection of whistleblowers, v. address gaps in the range of interventions possible by a Public Trustee, vi. clarify how consent is sought regarding decisions made by older adults who may be confused or have a diagnosis of incompetence. Service Provision It is suggested that the Manitoba Seniors and Healthy Aging Secretariat consider producing a position paper towards the development of a full­time Seniors’ Advocate delineating reporting structure, location, and their focus of responsibility regarding services to older adults living at risk. It is suggested that a team of professionals trained in gerontology and issues of abuse and/or neglect be established along with the development of associated services. In particular, developing accessible and affordable legal services, as well as advocacy for older adults living at risk, could be considered.
Manitoba Report: Abuse of Older Adults 7 Public and Professional Education It is suggested that the Manitoba Seniors and Healthy Aging Secretariat work with government and other community partners to increase the level of visibility of this issue for the public, and the type of education programs available about abuse and/or neglect of older adults. As well, emphasis could be placed on more training for police officers and Crown Attorneys. Research It is suggested that the Manitoba Seniors and Healthy Aging Secretariat consider maintaining a budget with which to facilitate data collection and analysis in the area of elder abuse to further inform policy and program development. Initial research may include the following: 1. Develop protocols for data collection in organizations where services are provided to older adults at risk. 2. Analyze application for, and use of, Protection Orders by older adults. 3. Analyze type of inquiry, characteristics of caller, and type of abuse in calls to Seniors’ Abuse Line and Protection for Person’s in Care line. 4. Develop a full scale random sample Winnipeg area study exploring needs, knowledge and attitudes regarding abuse and/or neglect of older adults.
Manitoba Report: Abuse of Older Adults 8 List of Terms “Abuse” of older adults refers to actions that harm an older person or jeopardize the person's health or welfare. Abuse of older adults is also known as elder abuse. According to the World Health Organization (Bain and Spencer, 2006), abuse and neglect of older adults can be a single or a repeated act. It can occur in any relationship where there is an expectation of trust or where the abuser is in a position of power or authority. Abuse can be physical (e.g. hitting), emotional, verbal (e.g. name calling), financial (e.g. taking money or property), sexual, spiritual, or, neglect. Some types of abuse of older adults involve violation of their rights. Financial abuse is considered the most common form of abuse of older adults. Neglect is when your caregiver or somebody else you trust withholds care, food and/or emotional support and may be intentional or unintentional. Sometimes those we trust to provide care do not have the necessary knowledge, experience or ability (Bain et al.). “Older Adult” is the term selected for use in this report. The terms ‘senior’ and ‘elder’ are used when they occur as part of proper titles, as stated in existing reports, or, as they were used originally in the research instruments. The term ‘older adult’ was selected as most appropriate during the writing of this report, since senior organizations provide services to the older adult who may be over 50 and not yet 65. It was also found that older participants in our interviews, and older respondents in the survey, may not have considered themselves a ‘senior’,even if they fit in this age group. Furthermore, finding enough seniors as participants over 65 proved difficult, thus, suggesting that inclusion of the category ‘older adult’ would reap more participation. There is also a concern that using the term ‘elder’ may be too confusing given the Aboriginal communities’ very respectful use of the term ‘Elder’.
Manitoba Report: Abuse of Older Adults 9 Part 1 BACKGROUND Elderly people aren’t dumb; they’ve worked hard their whole lives [and] they know what goes on. My mother is 94 and she knows what goes on. Older Adult Interview Participant Goal of Review The goal of this review, as requested by the Manitoba Seniors and Healthy Aging Secretariat, is first, to seek out public attitudes and awareness of abuse and/or neglect of older adults and related legislative frameworks in Manitoba. Second, the review aims to highlight key strengths and weaknesses in existing legislative framework and service provision regarding abuse and/or neglect of older adults in Manitoba and across Canada. A third goal is to summarize existing themes about abuse and/or neglect of older adults in literature and research, and, finally, to make recommendations for future development regarding legislative framework and service provision for older adults. This review acts as an introduction to the most current thinking and progress in this field in Manitoba and it is presumed that future work on this topic will continue to address the need for protection of all Canadian older adults. The timeline for this review was approximately five months, which attests to both inherent limitations to its scope and future potential for further analysis. Introduction to Themes Novak and Campbell (2006) project that the population of persons aged 65 to 74 will more than double between 1998 and 2041. The 85 and over group will increase almost fourfold by 2041 and constitute 17.6% of the older population. Surprisingly, abuse and/or neglect of older adults remains poorly understood, despite the fact it was first referenced in the academic literature over 30 years ago (Manitoba Law Reform Commission, 1999). Since that time, significant advances have occurred in our understanding of violence against children and women, leading to reforms in criminal law and policy in the 1980s (Ursel, 1992). Effective legislative frameworks that protect older adults are now more critical than ever before. According to the Manitoba Law Reform Commission (1999), particularly vulnerable groups may include older adults who are Aboriginal, immigrants, disabled, isolated, and/or women. Vulnerable groups may include older adults experiencing some confusion, older adults who have been diagnosed with dementia, and older adults who are nearing the end of life as these tend to be dependent on care (Roger, 2006). This suggests that older adults as a group, and especially those diagnosed with dementia, may be at a higher risk of abuse and/or neglect.
Manitoba Report: Abuse of Older Adults 10 Primary areas of concern for abuse and neglect of older adults includes (a) physical, emotional, sexual, and financial abuse; and (b) active and passive neglect. In the first category, the following behaviours may be witnessed: physical or verbal intimidation or aggression, shaking or inappropriate handling, and unwanted sexual touching. Examples of financial abuse include the withholding of money, misuse of power of attorney, and/or controlling an older person’s finances. In the second category, neglect implies an omission of care and a failure to attend to the basic necessities of an older adult. This most commonly includes neglect in the area of meals and food provision, medical or physical care. No single definition of abuse and/or neglect of older adults exist. Some individuals define abuse as primarily physical in nature, while others extend the definition to include such behaviours as limiting access to grandchildren or over­medicating. At a February 2007 workshop (hosted by the Public Health Agency of Canada and the Manitoba Seniors and Healthy Aging Secretariat, in partnership with the World Health Organization), another form of neglect was identified. It was noted that older adults are often the first victims of natural disasters, that they are more likely to die in such instances, that evacuation is often most difficult for them due to mobility issues, and that they are often the poorest members of a community. As stated at the workshop, this combination may result in older adults being neglected in the case of a natural disaster. The general ambiguity of what abuse and/or neglect is and how to define its severity makes investigation and reporting of suspected cases difficult. Little attention has been paid to the physical abuse and/or neglect of older adults, and even less attention has been paid to defining the range of non­physical ways in which older adults may be at risk of abuse and/or neglect. This oversight results in a general lack of understanding and awareness of what risk may even look like, how much is too much, and who is most likely to be at risk. There are several hypotheses regarding the occurrence of abuse of older adults. In some cases, such abuse is thought to be a continuation of previous and long­term existing abuse against a person who has become an older adult; it is also understood that sometimes this is a result of caregiver stress (Hawranik and McKean, 2004). Abuse may be a transfer of abusive behaviours to an older adult parent, learned by a child who was abused by that person (Statistics Canada, 2005); or, it may be a sign of temporary age and stage­specific intergenerational conflicts. Contrary to popular belief, financial dependence on an older adult has been found to lead to abuse by the dependent younger family member (Novak and Campbell, 2006). As in other forms of abuse, addiction is often involved in the abuse and/or neglect of older adults. Two major areas of concern are capacity and competence. First, a clear understanding of capacity and competency is required for all health care decisions, advanced planning, wills, family­based care, and, end of life decision­making. Yet, in practice, an application of a definition of competency can be wide­ranging in scope (Appendix A). According to Molloy
Manitoba Report: Abuse of Older Adults 11 (1992), competency can be defined differently depending on the realm in which the decisions are being made. In the case of the legislative frameworks selected for review, definitions of capacity and competence do vary, leaving room for interpretation, as Molloy has suggested. Second, questions arise regarding seeking consent in the event that an older adult is diagnosed incompetent but appears to be able to make some decisions on their own behalf. It is evident that the issue of abuse and/or neglect of older adults raises basic ethical and moral dilemmas regarding an adult’s right to self­determination (including the choice to remain in an abusive relationship by choice) and society’s desire to intervene. The need to find this balance is felt most keenly in the process of developing a legislative framework that is intended to be responsive and effective, but not intrusive and paternalistic. Any legislative framework dealing with abuse and/or neglect must be careful, from the outset of its definitions to the proscription of remedies, to avoid stereotyping those who may be victims of abuse and/or neglect. Stereotyping of aging or competence can have the effect of compounding violence, either by not listening to the victim (thereby ignoring reports of abuse) or by creating disenfranchisement (thereby not allowing the older adult to have control over their own affairs). This review intends to keep in mind these two positions embedded in legislating protection for older adults at risk of abuse and/or neglect. Manitoba Resources: Calls for Information and Data Collection There are four primary sites in Manitoba that offer information accessible by telephone regarding abuse and/or neglect of older adults. At a provincial level, the Seniors’ Abuse Line (Manitoba Seniors and Healthy Aging Secretariat), the Protection for Person’s in Care Office, and Klinic Inc. offer toll­free telephone resources for adults. As well, Age and Opportunity offers toll­free counseling, general information and counseling in Winnipeg. Each of these organizations also offer other programs and services, however, the following discussion highlights data regarding incoming telephone calls only. Current data on the number and type of calls occurring to the Seniors’ Abuse Line (SAL) and the Protection for Person’s in Care Office (PPCO) is presented first, illustrating that increasingly, calls are being made in Manitoba by the public seeking information on abuse and/or neglect of older adults. Data will be presented next from Statistics Canada reports and RESOLVE demonstrating that reporting rates and actual arrests regarding abuse and/or neglect of older adults are particularly low, suggesting such abuse and/or neglect may be severely under­reported. The disparity between expressed need (increasing telephone information is being sought by Manitobans) and a lack of requests for formal interventions (few police reports and arrests) sounds alarm bells regarding the well­being of older adults living at risk, and, it identifies a key area that demands development in the future. Given the data provided by the Seniors’ Abuse Line and the Protection for Persons in Care Office Line, it is probably safe to assume that the average of 840 calls per year on these two lines are the tip of the iceberg. These
Manitoba Report: Abuse of Older Adults 12 numbers confirm that there is growing concern about the issue of abuse and/or neglect of older adults in our community. However, it is still unclear how this concern gets translated into action. Manitoba Seniors and Healthy Aging Secretariat The Manitoba government identified abuse of older adults as an issue in 1989, and the provincial Treasury Board authorized the Seniors Directorate to undertake a pilot Elder Abuse Initiative (Susan Crichton, personal communication, January 5, 2007). Two­term full­ time­equivalent staff were provided. In 2002/03, the Treasury Board approved the conversion of the Elder Abuse Initiative to a permanent ongoing strategy. Key components of the strategy include: 1. 2. 3. 4. 5. 6. a Senior Abuse Consultant, a Seniors’ Abuse Line Coordinator, the Seniors’ Abuse Line, education and awareness, the development of community based response/monitoring teams, and funding to Age & Opportunity for an elder abuse counseling service. On the first World Elder Abuse Awareness Day (held on June 15 th , 2006), the Minister Responsible for Seniors announced an expansion of the provincial elder abuse strategy which includes support for an elder abuse safe suite program and a toll­free counseling line; support for the development of a provincial elder abuse network; and research examining legislative frameworks and supports to address elder abuse in Manitoba. The elder abuse consultant has, to date, worked with many of the regions throughout the province, which are at various stages of coordinating and increasing capacity to address elder abuse. In 2003, new elder abuse publications were developed; these are used extensively to increase awareness of elder abuse and to promote the Seniors’ Abuse Line (SAL). Following is a presentation of preliminary data collected as part of these services (Susan Crichton, personal communication, January, 2007). Figures 1, 2 and 3 illustrate the use of this phone line since its inception. The Seniors’ Abuse Line has collected data regarding the type of person making the predominant number of calls to this line including older adults calling on behalf of themselves, third party callers on behalf of an older adult living at risk, and information calls only.
Manitoba Report: Abuse of Older Adults 13 Figure 1. Type of Caller to Seniors’ Abuse Line 5% 31% 64% Self Third Party Info Call Figure 1 illustrates that 31% of the calls to the SAL were by older adults about themselves, yet, 64% were third party calls. This disparity reflects the difficulty older adults may be having in acknowledging that abuse and/or neglect is occurring, or, in overcoming fears they may have in reaching out for help. Such a high rate (64%) of third­party calls indicates that concern about older adults is being experienced by other community or family members. The Seniors’ Abuse Line has had an increasing number of all calls per year as illustrated in the next figure. This data demonstrates the increasing public interest and need for more information about such abuse and/or neglect. Figure 2. Number of Calls to Seniors’ Abuse Line 300 294 274 254 250 169 200 150 154 106 105 100 50 20
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1 0 * Data provided from April to March in every column. However, 2003­04 includes only data from April – January (not March). In 2006, only data from April to July was collected. Figure 2 illustrates the significant increase in the number of calls to the Seniors’ Abuse Line between 2000 and 2006. The fourth year demonstrated the highest increase of any year with
Manitoba Report: Abuse of Older Adults 14 100 more calls. Note that 2006 numbers were not yet compiled at the date of this review and could not be reported in full. The Seniors’ Abuse Line has also collected data regarding the types of questions people call about with questions about emotional and financial issues at first and second place. Figure 3. Types of Abuse Stated in Calls to Seniors’ Abuse Line April 2000 ­ July 2006 500 455 380 400 254 300 266 200 100 0 Emotional Financial F/E Other combinations Figure 3 illustrates that the type of questions asked have predominately related to financial (34%) and emotional (28%) abuse. Several calls included questions about both financial and emotional abuse (19%). At the same time, the category titled ‘other’ may include both financial and emotional abuse as a focus suggesting that these areas are integrated with each other, and callers may not always be able to separate one from the other. Future analysis of the way in which this service is promoted, and to whom, will contribute towards a better understanding of this focus. The Manitoba Seniors and Healthy Aging Secretariat (Bain et al., 2006) has also compiled existing data on such abuse and/or neglect. The findings reflect the following: 1. Older women were more likely than older men to experience violence at the hands of their spouse but older men were more likely than older women to be victimized by an adult child. 2. The most common type of abuse of older adults that comes to the attention of the police involve younger older adults (between the ages of 65 and 69). 3. Common assault (hitting or attacking with minor injury, or, no injury) was the most frequent type of harm to older adults by family members reported to police. 4. Adult children were involved in 38% of the family assaults against older adults.
Manitoba Report: Abuse of Older Adults 15 Protection for Person in Care Office (PPCO) The PPCO (Manitoba) began to collect preliminary data on calls to their office since the implementation of the PPC Act in 2001 (P. Lamoureux, personal communication, PowerPoint Presentation for the PPCO, February 27, 2007). Note that the following PPCO figures include data accounting for “all adults” and not just older adults. Figure 4. Number of Intake Calls: Protection for Person’s in Care Office May 2001 ­ December 2005 1200 1000 793 800 600 1091 587 626 417 400 200 0 'May 2001 2002 2003 2004 2005 Figure 4 illustrates that the number of calls to the PPCO rose significantly from 417 to 1091 between 2001 and 2005. This increase in calls, coupled with the data derived from the Manitoba Seniors and Healthy Aging Secretariat, demonstrates the growing demand for a service that provides information on such abuse and/or neglect. It is interesting to note that the majority of calls are about older adults, as illustrated in the next figure. The PPCO has also collected data on the age of the person most likely to be named as a victim in calls to their office.
Manitoba Report: Abuse of Older Adults 16 Figure 5. Age of Alleged Victim: Calls to Protection for Person’s in Care Office May 2001 ­ December 2005 50 43 40 26 30 20 20 10 10 1 0 60 ­ 70 Years 70 ­ 80 Years 80 ­ 90 Years 90 ­ 100 Years 100 + Years *includes reports of persons under the age of 18 In total, 2674 (not including those under 60) calls were made about or by older adults aged 60 to 100. Given this total, it is evident that the dominant age of the alleged older adult victim aged 60 to100 was 80 to 90 (43%) years old. The second largest group of alleged victims was older adults between 70 and 80 (26%), and the third, between 90 and 100 (20%). Since the PPCO serves “all adults”, the predominance of older adults as alleged victims is striking and begs further investigation. The PPCO collected data regarding the type of alleged abuse stated in calls to their office. Figure 6. Type of Alleged Abuse: Calls to Protection for Person’s in Care Office* 9% 3% 10% 11% 54% 13% Physical Physical/Emotional Emotional Financial Sexual Combination *By Percentage of Intakes – Cumulative 2001 – 2005 Figure 6 illustrates that the highest number of calls (54%) to the PPCO involved questions about physical abuse with all other categories of abuse (emotional, financial, sexual) ranging
Manitoba Report: Abuse of Older Adults 17 between 9% and 13%. Since the Manitoba Seniors and Healthy Aging Secretariat’s calls were predominantly of a financial and emotional nature, it will be necessary to research this difference in order to understand it better. Data on Incidence of Abuse and/or Neglect of Older Adults There are three sources of information on interventions in such abuse cases available and all are from of the Justice System ­­ national crime statistics published by statistics Canada; data on cases regarding abuse of older adults from the Winnipeg Family Violence Court (FVC); and data on Protection Order applications in Winnipeg. National Crime Statistics. Statistics Canada publishes an annual Family Violence Report that has a section on elder abuse. The Statistics Canada Report (2005) indicates that there were 4,000 incidents reported to the police in Canada in 2003 that included older adults. Common assault was the most frequent form of violence against older adults reported, however, these assaults were considered to be serious since older adults are more physically fragile and more easily injured. Police reports indicated that 63% of these violent incidents were perpetrated by people outside the family, and men (54%) and women (46%) were almost equally victimized in such cases. However, in cases of family violence a clear gender difference emerges both in terms of perpetrators and victims. Almost twice as many women (39%) as men (20%) were victimized and in 66% of these cases adult male children or male spouses were the perpetrators. In the tragic circumstances of homicides women were most likely to be murdered by a family member while men were most likely to be murdered by an acquaintance. In cases of an older woman murdered by a family member, spouse (43%) and son (36%) were the most frequent perpetrators. National data consistently shows that in cases of domestic abuse, older women are the most frequent victims. Winnipeg Family Violence Court. The Winnipeg Family Violence Court (FVC) Monitoring Project conducted by RESOLVE collects data on abuse cases related to older adults processed in that court. Data has been collected from this court since its opening in 1990, and it is the only longitudinal court study of its kind in North America.
Manitoba Report: Abuse of Older Adults 18 RESOLVE collects and codes data on all cases and this represents a complete population of family violence criminal cases rather than a sample. In the ten year period 1992­ 2002, Table I describes that there were 526 older adult abuse cases heard before the court which constitutes approximately 2.5% of the overall FVC caseload. The data includes 314 spousal abuse cases, 100 intergenerational abuse (see definition below), and a category defined as “Other” including 112 cases involving a variety of relationships and/or multiple victim or multiple accused dynamics. In the remaining four cases, the accused died before the court case was completed. Such cases demand further investigation in particular also as to the reasons why they were not investigated further after death. The characteristics of these cases are identified below in Table 1. Table 1 Older Adult Abuse Case Characteristics Winnipeg Family Violence Court 1992 – 2002 N = 526* N % Type of Abuse Spouse 314 60% Intergenerational** 100 19% Other*** 112 21% Gender of Accused Male 403 77% Female 115
22% Male & Female 8 1% Gender of Victim Male 119 23% Female 336 64% Male & Female 71 13% * Denominators for each category have been adjusted to account for missing information. ** Intergenerational is defined by relationship (i.e. mother/son) or a 20 year age difference between the adult accused and the Older Adult Victim. *** OTHER includes acquaintances and friends and cases of multiple victims and accused. Similar to the national data the most frequent form of violence is common assault, however, the Winnipeg FVC data provides further information on all assaults which add up to a disturbing pattern of violence against older adults. Table 2 identifies the major charge categories involved in the abuse cases related to older adults before the court.
Manitoba Report: Abuse of Older Adults Table 2 Type of Assault in Older Adult Abuse Cases Winnipeg Family Violence Court 1992 – 2002 Distribution of Cases by Most Serious Charge N Murder/Manslaughter 1 Sexual Assault 4 Serious Physical Assault* 145 Common Assault 292 Other Charges** 84 Total 526 19 % <1% <1% 28% 55% 16% 100% * Serious physical assault includes Aggravated Assault, Assault Causing Bodily Harm & Assault with a Weapon. ** Other charges include, uttering threats, forcible confinement, break and enter, etc. It is important to note that 28% of all cases involved a serious physical assault and 26% of all cases involved an assault with a weapon. Further, evidence of the older adult’s vulnerability in these cases is the fact that 63% of the accused had a history of prior arrests. This suggests that police are most likely to be called when serious harm could or did result from the incident. This may explain the extreme difference in who calls help lines and who calls police. One of the interesting statistics from the Senior Abuse Line is that only (31%) of their calls are from older adults at risk while 80% of calls to police are made by the older adult victim. Our data would suggest that older adults at risk seldom call for help unless they are in extreme danger and then they call police. These findings give credence to the general concern expressed by professionals and the community at large that older adult abuse is dramatically under­reported, and that intermediate interventions must be developed prior to the occurrence of a ‘most extreme’ case. For the purposes of understanding court outcome and sentencing patterns we will compare the older adultspousal abuse cases with the intergenerational cases. The other category involves such complex relationships and complex multiple victims, multiple accused dynamics that it is beyond the scope of this report. When we compare older adultspousal abuse and intergenerational abuse of older adults there are some interesting differences in how these cases fare in the justice system.
Manitoba Report: Abuse of Older Adults 20 Table 3 Court Outcome by Relationship Winnipeg Family Violence Court 1992 – 2002 Court Outcome Older Intergenerational Adultspousal N = 100 N = 310* Guilty Plea 37% 59% Trial Found Guilty 3% ­­ Total Cases Proceeding to Sentence 40% 59% Stay of Proceedings Stay with Peace Bond Stay for Counseling 40% 11% 6% 31% 7% 2% Total Stays 57% 40% 1% 2% ­­
1% Dismissed/Discharged Trial Found Not Guilty * 4 accused deceased. Intergenerational cases of such abuse are one and a half times more likely to end in a conviction than a spousal abuse case. Which raises the question of whether this difference expresses a community standard that perceives the assault of an older adult by a young adult as more harmful and serious than the assault of an older adult by their spouse? Perhaps there are other factors at play that are in need of investigation. Are spousal abuse victims less likely to testify against their accused than those victims who have been abused by their child or younger relative? Clearly, these questions merit further exploration. Differences also emerge in comparing sentences of convicted offenders of spousal abuse involving older adults and intergenerational abuse involving older adults. Table 4 looks at the sentencing pattern in these two cases.
Manitoba Report: Abuse of Older Adults 21 Table 4 Sentencing Pattern by Relationship Winnipeg Family Violence Court 1992 – 2002 Older Intergenerational Adultspousal N = 100 N = 310* % of cases Proceeding to Sentence 40% 59% Probation Alone Incarceration & Probation 51% 22% 51% 31% Fine 6% 10% Conditional Discharge 31% 7% Absolute Discharge 4% 2% * Percent totals are greater than 100% due to the occurrence of multiple sentences (i.e. 3 months in jail and 2 years probation). This table indicates that the most serious sentence, i.e. probation and incarceration is much more likely to occur in sentencing an intergenerational offender than a spousal abuse offender. On the other end of the continuum, one of the lightest sentences, the ‘conditional discharge’, is almost five times more frequent for spousal abuse offenders than intergenerational offenders. Finally, considering that incarceration is the most severe sentence, it is interesting to note that there is an inverse relationship between a sentence of incarceration and the age of the accused. This suggests that the type of abuse of older adults held out for greatest sanction is intergenerational abuse. Protection Orders. The final source of information from the Justice system on such abuse comes from the RESOLVE collection of data on applications for Protection Orders in Winnipeg. This data is extremely limited because the information in the files coded by RESOLVE almost never has the age of the applicant included. Out of thousands of cases analyzed over the past five years, only 29 applications indicated that an older adult had applied for a Protection Order. However, we only had information on age in a couple of hundred cases. Thus, these statistics represent less than 5% of all cases and so they must be read with a great deal of caution. Out of 29 applications, 20 applications (69%) were taken out against the intimate partners and ex­partners of the applicants, whereas 6 applications (21%) were taken out against children, grandchildren, or siblings; and, 3 applications (10%) were against neighbours, caregivers, co­ workers or landlords. Fourteen of the 29 cases (48%) were described as involving emotional or psychological types of abuse, including unwanted communication (e.g. stalking). Six of the 29 applications (21%) appear to be due to physical abuse. Only 1 of the 29 applications (3%) also included a call to the police. In this case, the victim was a female older adult (aged 75) whose walker was being pulled away from her by her grandson (aged 41). He was charged.
Manitoba Report: Abuse of Older Adults 22 The majority of protection orders requested by older male applicants were directed against women who were listed as ex­spouses. It appears that not a single male who applied for a protection order had an application granted. There may be a wealth of information within the application files for Protection Orders, however, there needs to be some means of identifying the applicants age. RESOLVE was informed that the information sheet containing particulars of the applicant and the respondent are removed from the files before we code them to ensure anonymity. If this is the case there may be a procedure for identifying older adult applicants, by the staff of the Department of Justice pulling those files for RESOLVE to code. If this is, in fact, possible, it would be beneficial for the Manitoba Seniors and Healthy Aging Secretariat to negotiate this arrangement with the Department of Justice and RESOLVE. In Conclusion. In the Province of Manitoba, we currently do not have a system in place for collecting information on investigations and interventions related to the abuse and/or neglect of older adults. Data on investigations and interventions are fragmented among a number of government and non­governmental agencies with no protocol for information sharing and no data collection system in place. As a result, the data available to us at this point is extremely fragmented and limited. Several other sites in Manitoba have committed to new data collection on this topic in the future. The Office of the Public Trustee in Winnipeg, according to J. Knowlton (personal communication, January 25, 2007), confirmed that the Manitoba is beginning to collect data on older adults and financial abuses as of April 2007. Data on this topic collected in other community based (e.g. Klinic, Inc. or Age and Opportunity), or, long­ term care settings was not available at this time. At the same time, this existing data is an excellent platform upon which to expand the investigation of abuse and/or neglect of older adults. Continuing investigation is required to flesh out the characteristics of abuse and/or neglect of older adults, the variations in type and range, and an improved understanding of the barriers to further reporting and effective interventions.
Manitoba Report: Abuse of Older Adults 23 Part 2 PUBLIC AND PROFESSIONAL KNOWLEDGE AND ATTITUDES ON ABUSE AND/OR NEGLECT OF OLDER ADULTS Section A ­ Methods Qualitative and quantitative methods were selected for this study. Qualitative methods were selected to seek new data as these best allow for the investigation of little known views in new areas of research. Little work has been done to better understand the views of Manitobans on questions related to mandatory reporting, legislative development, and abuse and/or neglect. It was decided that interviews with older adults and professionals, and focus groups with the same, could effectively establish rich qualitative data (Appendix B). The development of a new survey occurred first, in order to collect and analyze more general views in Manitoba on this topic; second, since few appropriate existing surveys on this topic were found (Appendix B). Other research was archival in nature in order to review, summarize and analyze existing documents (see bibliography). Caution is recommended in generalizing this data to a broader audience, as the sample size of participants was quite small. An ethics protocol was approved by the Psychology / Sociology Research Ethics Board at the University of Manitoba in January 2007. Survey Development and Implementation An extensive search for a relevant Canadian survey asking detailed questions about knowledge and attitudes regarding abuse and/or neglect of older adults and associated legislative frameworks was completed, but with little success. Podnieks (1992) developed a survey and the results were quite useful in that they concluded there were four categories of such abuse: material, chronic verbal aggression, physical violence, and neglect. In another example, Statistics Canada (2005) had conducted one survey that focused specifically on reports to the police regarding homicide and common assault. Another survey was completed in the United States in 1998 named the National Elder Abuse Incidence Study (NEAIS), so the data was American. These and other surveys found did not meet the criteria or focus of this particular focus on legislative frameworks and mandatory reporting in Manitoba, demanding the development of a new survey. A new survey was developed with 46 closed­ended questions using a Likert scale for responses and including five open­ended questions (Appendix B). As Table 5 illustrates, three sites were selected for survey implementation in five university and college level classes, and 522 surveys were handed out in total with 168 surveys returned for analysis.
Manitoba Report: Abuse of Older Adults Site Name Red River College (training related to aging) University of Winnipeg (older adults day class) University of Manitoba (day class on family relationships) University of Manitoba (evening class on aging) University of Manitoba (evening class human development) Table 5 Summary of Survey Implementation Available Actual Possible Number of Respondents Respondents 12 11 24 Response Rate (%) 92% 200 12 6% 156 50 32% 40 28 70% 115 67 58% Analyzing the Response Rate for Surveys. It was not possible in advance to predict how many students would attend a particular class, or, how many students would hand in a completed survey. Further, the instructor for the class comprised primarily of older adults did not approve researcher access for twenty minutes of class time. Instead, the research assistant was asked to drop off the surveys one week with an explanation of the review, and return to pick up responses the following week. This site had been selected specifically because it was anticipated that older adults would be supportive of this topic, and it would be important to attain their views. This was not the case as the response rate was quite low (6%). Observations were made to one of the researchers while waiting for the collection of completed surveys: 1. Some older adults in this class stated that the topic of abuse was particularly taboo for today’s older adults who may never have discussed abuse in their homes at any time previously. 2. The survey should not refer to “abuse” and “violence”, but should use softer language to investigate the same issues. 3. Older Adults in this class may have been fearful of demonstrating to their peers that they had any interest in or knowledge of this subject, or, that they had completed the survey at all. One older woman phoned the researcher individually, to say that this topic was both important and frightening to her, that it was only the “tip of the iceberg”, and that she would like to be interviewed. She had supported someone close to her through a serious case of financial abuse.
Manitoba Report: Abuse of Older Adults 25 It was important to her to be included in the one­on­one interviews. Two other older adults who responded to the survey also said they would be interested in and available for individual interviews. These unsolicited phone calls demonstrate the need for privacy and confidentiality when researching this subject in the future. At the same time, while this site did not yield the expected number of responses from older adults, it was evident in the final analysis of all surveys that older adults in other classes did respond to the survey. Other lessons were learned about how not to implement a survey on this topic. First, the timeline for this review (five months) meant that researchers had little time to seek more survey sites. Second, it was imperative that the survey be filled out and handed in on one occasion, rather than two. Despite these limitations, the data from the surveys provides important insights into the knowledge and attitudes of the public. Interviews First, the Centre on Aging (University of Manitoba) made available a list of older adults who had agreed in advance to be contacted for possible research studies. Word of mouth was also used to solicit names of other individuals who were known to be older adults and potentially willing research participants, and/or known to fit a particular criterion required for this review. Up to twenty potential participants were called by the research assistant, who told them about the interviews and their rights as a research participant, and asked them whether they were interested and available for participation. Interviews followed if they were interested in participating and after they had signed consent forms. Table 6 Summary of Demographics of Older Adult Interview Participants Age 55 to 72 Gender Two men; eight women Education Seven completed up to or less than grade 12 range One had a social service degree One was a practicing lawyer One unknown Employment Predominantly participants described themselves as retired but working Marital 5 married; two divorced; three unknown Languages English, French, Ukrainian, German A list provided by the Manitoba Seniors and Healthy Aging Secretariat identified possible relevant organizations or individuals that would be able to provide participant names of professionals. These professionals were contacted, and upon having the opportunity to ask questions about the study, interviews followed.
Manitoba Report: Abuse of Older Adults 26 Table 7 Summary of Demographics of Professional Participants Type of profession Years worked with older adults Type of service 1. Social service 2. Legal 3. Police 4. Health care 5. Public Trustee 8 to 30 years Health and social services: includes home care, outreach, Geriatric Program Assessment Team (GPAT), hospital, housing, counselling, care assessment, medical, home security, meals, health, other supportive services, community development, education, etc. Public Trustee: can deal with power of attorney, freeze bank accounts, place caveats on properties, legal advice, advocacy and referrals Legal researcher: provides analysis of legislative framework Police: understands criminal justice system, can refer to other resources, make well­being visits, can make arrests Location of professionals Yukon (1) British Columbia (1) Northern Manitoba (1) Regional health authorities located outside Winnipeg (2) Winnipeg (4) Focus Groups All older adults and professionals were asked during their individual interviews whether they wanted to participate in a focus group: there would be one focus group for service providers and one for older adults, each lasting approximately two hours. The focus group for older adults was impossible to schedule, as the number of volunteers was quite low. Of those older adults willing to participate in a focus group, most were reluctant or unable to travel to a central location because of extreme cold weather and icy roads and sidewalks in January and February. Seven of the nine professionals interviewed were willing and available to meet through a scheduled conference call. This meeting summarized the themes that emerged in the interviews asking for additions and revisions to the same. This revised data is reflected in the discussion in the section on findings.
Manitoba Report: Abuse of Older Adults 27 Limitations to the Selected Methods Due to the time constraints associated with this five month project, some important areas were not able to be reviewed. For example, it was not possible to fully explore how differing communities (e.g. ethnic, disabled, rural) may define, understand, and respond to such abuse and/or neglect, or what they would prefer regarding protective legislative frameworks. Another limitation is that the data that emerged from the interviews and the survey can still be mined for further analysis. Future studies may refine questions for each. The focus group for older adult interview participants was not implemented due to the season and time constraints. Some of the legislative frameworks themselves have not yet been put into practice, and so it is too early to assess their practical implementation.
Manitoba Report: Abuse of Older Adults 28 Section B ­ Summary of Findings from Survey Demographics The survey responses from the three designated sites (see Table 5) were summarized and analyzed. For the purpose of this discussion, the responses are clustered into three age categories: 113 responses (age 29 and younger), 27 responses (age 30 ­ 49), and 27 responses (age 50+). Clearly, the highest number of people in any age group was people age 29 and younger (67%). As Table 8 illustrates, women (82%), people with higher levels of education (75% ­ University), and single people (67%) dominated in this sample. This is not a representative sample, thus, the data is derived from populations we could easily access for this survey. Due to the lower number of respondents over 65 for the survey, the analysis of this data includes respondents over 50. While this is not an age associated with being a legal senior, many seniors’ organizations include people over 50 (called older adults) in their literature and programming mandates. Since people over 50 are more likely to think about retirement and their future well­being as a senior, these responses are calculated in the following figures as an older adult. The following Table 8 illustrates the demographic of the survey respondents. Table 8 Summary of Survey Respondent Demographics Gender Male 15% Female 82% NA 3% Education level Grade 12 5% College 31% University 57% Post­Graduate 4% NA 3% Marital Status Married 13% Common Law 5% Widow 3% Divorce / Separated 7% Single 67% NA 5% Ethnicity* Caucasian / Canadian 31% Aboriginal Origin 9% European 9% Asian 17% African 1% *respondents were asked to self­identify their ethnic affiliation: more than one category may apply to the same person.
Manitoba Report: Abuse of Older Adults 29 Survey Responses The following figures represent a summary of the key points that emerged through the analysis of the survey responses (SR). These figures illustrate the knowledge and awareness of abuse and/or neglect of older adults in this sample of respondents. Each figure includes the question (in italics) that solicited the responses; these responses are graphed in percentages. While seeking the views of the respondents regarding mandatory reporting, it was of interest to determine whether they felt that they as older adults might be at risk for abuse and/or neglect when they are over 60. Have you ever thought that you may be at risk of abuse and/or neglect when you are over 60? Figure 7. Risk Over 60 % of Respondents who have thought about being at risk of abuse/neglect 100 80 90 75 76 80 70 60 50 40 30 17 19 21 20 3 6 10 3 0 Yes Young Adult Responses No Senior Responses No Response Adult Responses The majorities of older adults (75%), adults (76%), and younger adults (80%) stated they had not thought about being at risk when they were over 60. This reflects either the perception that abuse and/or neglect happens to other people and not oneself, or that people are not paying attention to this issue in general and understanding its prevalence. Certainly, according to the interviews with older adults and professionals abuse and/or neglect of older adults occurs frequently; for professionals, they stated it occurs much more than they are able to manage in their daily work lives. Similarly, the survey sought a better understanding of respondent’s general awareness of abuse and/or neglect of older adults. This data can contribute towards a more thorough understanding of what people know about the topic, prior to investigating their views on mandatory reporting.
Manitoba Report: Abuse of Older Adults 30 What is your general level of awareness of issues of abuse and/or neglect towards older adults? Figure 8. General Awareness 100 90 % of Responses 80 70 60 47 50 38 40 32 46 35 30 22 10 17 12 20 4 5 24 13 5 0 0 0 Very High Quite High Young Adult Responses Average Somewhat Low Senior Responses Very Low Adult Responses Figure 8 illustrates that older adults have significantly more awareness of the topic of such abuse and/or neglect than younger adults have. Where 5% of older adults were very high and 38% of older adults were quite high in awareness (totalling 43%), the remaining 57% are average, somewhat low, or, very low in awareness. Only 4% of younger adults were very high, and 12% were quite high in awareness (totalling 16%). Adult responses demonstrate a higher awareness than young adults and a lower awareness than older adults. Further, young adults dominated the lower end of the awareness scale with 47% having average awareness, 24% somewhat low, and 13% very low. This level of awareness must be considered when analyzing the views on mandatory reporting. To what extent does one take into account views on mandatory reporting by an age group that reflects average to low awareness on this issue? The survey sought to determine whether respondents would know who to call if they knew an older adult living at risk. The responses reflect both the degree to which people are aware of existing resources, and, the degree to which resources need to be improved.
Manitoba Report: Abuse of Older Adults 31 Today, if you knew an older adult you thought was being abused and/or neglected, would you know who to call for information? Figure 9. Know Whom to Call 100 90 % of Respondents 80 70 60 50 49 43 50 40 30 27 20 26 29 23 27 20 2 10 0 4 0 Yes Young Adult Responses No Not Sure Senior Responses No Response Adult Responses The results in Figure 9 illustrate that younger adults and older adults alike are not well­ informed about whom they should call for information or resources. Only 50% of older adults and 43% adults knew whom to call if they required assistance. Almost 50% of young adults said they did not know whom to call. When we add the “not sure” responses in any age group to the “no” responses, a startling majority of all respondents indicated a lack of clarity on whom to call. For example, if 26% adults said “no” and 27% said “not sure”, this totals 53% of respondents not knowing (or being sure) whom to call if assistance is required. Similarly, the survey sought to determine whether respondents would support more media coverage on the topic, given questions regarding their levels of awareness and knowledge of whom to call.
Manitoba Report: Abuse of Older Adults 32 Do you think more media coverage would be helpful on abuse and/or neglect of older adults? % of Respondents who Support More Media Coverage Figure 10. More Media Coverage 100 90 75 75 80 74 70 60 50 40 30 20 9 13 10 13 13 12 3 10 0 4 0 Yes Young Adult Responses No Not Sure Senior Responses No Response Adult Responses The results in Figure 10 illustrate that older adults, adults, and young adults agreed that more media is required on this topic. This confirms the findings in the individual interviews with older adults who clearly stated that more media attention and education is essential. This would improve knowledge on this topic and knowing whom to call. The next series of figures reflect on survey respondent’s knowledge of legislative framework and views of mandatory reporting. First, it was important to ask the degree to which respondents felt they knew about specific legislation regarding such abuse and/or neglect.
Manitoba Report: Abuse of Older Adults 33 Do you know of particular laws or policies that protect older adults from abuse and/or neglect in Canada? Figure 11. Knowledge of Laws 92 100 88 90 73 % of Responses 80 70 60 50 40 27 30 20 9 7 1 10 0 3 0 Yes Young Adult Respondents No Senior Respondents No Answer Adult Respondents Figure 11 illustrates that only 27% of older adult respondents and 9% of adult respondents knew about legislative framework that might protect older adults. This is similar to what was found in the individual interviews with older adults, where very few older adults were aware of any legislative framework they could apply to protect themselves. It is clear, as stated in Figure 11, that young adults lag far behind older adults in their awareness of legislative framework with 92% saying they had little knowledge of such legislative framework. Similarly, 88% of the adults stated they knew little on this topic. Again, this data raises caution in translating into action the views of a group whose knowledge and awareness is low not only on the issue of abuse but also regarding related legislative framework. The survey sought to determine whether respondents supported mandatory reporting, especially in this case, if they themselves were at risk.
Manitoba Report: Abuse of Older Adults 34 If you were experiencing abuse and/or neglect as an older adult, would you feel that mandatory reporting was a good idea in your own case? % of Respondents who Support Mandatory Reporting Figure 12. Support for Mandatory Reporting for Self by Age of Respondent 100 90 80 70 66 64 68 60 50 36 40 25 23 30 20 6 7 10 0 0 3 0 0 Yes Young Adult Responses No Not Sure Senior Responses No Response Adult Responses The question of mandatory reporting on one’s own behalf solicited strong responses in young adults and older adults alike. Older adults (64%), adults (68%), and young adults (66%) were in favour of someone being notified if they themselves were in a position of risk. It is equally noteworthy that 36% of older adults and 23% of young adults were “not sure” about mandatory reporting on their own behalf. 25% of adults did not respond to this question at all. Being unsure or not responding to the question is an important finding which may imply reasons the respondents considered mandatory reporting on their own behalf not to be the right solution. This requires further investigation. The survey sought to determine whether respondents thought that older adult’s rights would be restricted in the case of mandatory reporting. This question elicits a core principle in question regarding the development of such a legislative framework.
Manitoba Report: Abuse of Older Adults 35 Some people say that mandatory reporting may not respect the rights of older adults to stay in relationships that others assess as bad relationships. In provinces that already require mandatory reporting by anyone who suspects abuse and/or neglect against older adults, indicate how much YOU believe that a mandatory reporting process would restrict or violate the rights of that older adult. % of Respondents who Support Mandatory Reporting Figure 13. Belief that Mandatory Reporting Would Restrict Rights by Age of Respondent 100 90 80 70 60 50 50 40 29 24 30 21 30 22 30 22 20 10 25 11 6 0 4 15 6 5 10 0 0 Strongly Agree Somewhat Agree Young Adult Responses Neither Agree nor Disagree Disagree Somewhat Senior Responses Strongly Disagree No Answer Adult Responses This question asks whether the rights of an older adult would be restricted or violated by mandatory reporting. Few people stated that they strongly agreed. Older Adults were more likely to hesitate on the subject of mandatory reporting than younger adults: 50% of older adult respondents agreed that mandatory reporting would restrict the rights of older adults, while 22% stated they neither agreed nor disagreed, and 22% stated they disagreed somewhat. Adults appeared equally ambivalent in their predominant responses which clustered as follows: “somewhat agree” (21%), “neither agree nor disagree” (30%), and “disagree somewhat” (25%). Even young adults clustered around responses that appear ambivalent: 24% somewhat agreed, 29% neither disagreed nor agreed, and 30% disagreed somewhat. As illustrated above, support for mandatory reporting varies according to the age of the respondent, with younger respondents more strongly in favor of mandatory reporting. Adults were somewhat in favor compared with younger adults, and older adults were most likely to appear ambivalent. Due to the strong youthful bias in the sample (the highest number of respondents were under 30), it was important to seek out other ways to establish the knowledge and attitudes regarding abuse and/or neglect of older adults and mandatory reporting.
Manitoba Report: Abuse of Older Adults 36 Thus, it was found that the degree of contact respondents had with older adults contributed towards their views on mandatory reporting. The following figures illustrate the degree to which 46% of the respondents with regular contact with older adults (N=77) supported mandatory reporting, and, the degree to which 54% respondents with little contact with older adults (N=90) supported mandatory reporting. The results are striking. If you believed that an older adult you knew was staying in a relationship you suspected was abusive and/or neglectful, would YOU support a mandatory reporting process by anyone who suspected this, on behalf of that older adult? Figure 14. Support for Mandatory Reporting on Behalf of Older Adult by Level of Contact % of Respondents who Support Mandatory Reporting 100 90 80 80 70 53 60 50 30 40 17 30 7 5 20 10 0 Yes Respondents with Little Contact with Seniors No Not Sure Respondents with Regular Contact with Seniors Respondents with little contact with older adults are much more likely to respond in favour of mandatory reporting (80%) than respondents with regular contact with older adults (53%). Those with more regular contact appear more ambivalent to mandatory reporting. This is again mirrored in the “not sure” response, where respondents with more contact with older adults are more likely to be unsure (30%) than those who have less contact with older adults, and appear more certain about mandatory reporting (17%).
Manitoba Report: Abuse of Older Adults 37 Figures 15, 16 and 17 summarize responses to the following question: Some older adults choose to stay in abusive / neglectful relationships and, as adults, they do not think that anyone should be forced to report this on their own behalf. Other people think that any older adult being abused (or suspected of being abused) should have a report made by someone on their behalf. In the following scenarios, assume this person is suspected of being abused / neglected, and indicate in which cases YOU believe mandatory reporting of suspected abuse and/or neglect against older adults should occur? % of Respondents who Support Mandatory Reporting Figure 15. Support for Mandatory Reporting for Healthy Senior Living Independently 100 90 80 70 60 43 47 50 46 30 40 17 30 7 20 10 0 Yes Respondents with Little Contact with Seniors No N/A Respondents with Regular Contact with Seniors Forty­seven percent of respondents who have regular contact with older adults stated that they agreed with mandatory reporting, and 46% in this same category did not agree. Of respondents who had little contact with older adults, similarly 43% stated that they agreed with mandatory reporting in the case of an older adult who was apparently healthy, and a lower 30% said they did not agree with mandatory reporting in this case. These results are similar to each other and indicate ambivalence in all respondents regarding mandatory reporting in the case of older adults with few apparent health concerns. The underlying attitude may prevail that older adults with few health concerns living independently in the community have rights as adults to choose their living situations, even if this includes choosing risk.
Manitoba Report: Abuse of Older Adults 38 % of Respondents who Support Mandatory Reporting Figure 16. Support for Mandatory Reporting for Senior with Some Health Concerns Living Independently in Community 100 90 80 70 60 50 40 30 20 10 0 70 71 19 15 15 4 Yes Respondents with Little Contact with Seniors No N/A Respondents with Regular Contact with Seniors In Figure 16, reference is made to an older adult who is experiencing some confusion but was still able to live independently in the community. When compared with Figure 15, these responses are striking. A older adult who is experiencing some confusion should be protected through mandatory reporting, as stated by 70% of those with little contact with older adults (compare with 43% in Figure 13) and 71% of those with regular contact with older adults (compare with 47% in Figure 13). As health concerns are increasingly indicated for older adults in these survey questions, so the responses also indicate an increasing desire to protect and support those older adults through mandatory reporting.
Manitoba Report: Abuse of Older Adults 39 Figure 17. Support for Mandatory Reporting for Senior with Diagnosis of Incompetence % of Respondents who Support Mandatory Reporting 100 90 80 90 80 70 60 50 40 30 15 7 5 20 3 10 0 Yes Respondents with Little Contact with Seniors No N/A Respondents with Regular Contact with Seniors The survey results are quite clear in Figure 17. If an older adult has been diagnosed as incompetent and is living at risk, most respondents stated this older adult should be supported through mandatory reporting. Here, those with more regular contact with older adults (90%) and those with less regular contact (80%) predominantly agreed that mandatory reporting should occur. In fact, people with more regular contact with older adults are less divided on this question than they were on any other previous questions. Very few people stated “no”. Conclusion In conclusion, the survey responses suggest that respondents were not always in support of mandatory reporting in all situations. In cases where a diagnosis of incompetence has occurred, and an older adult is clearly living at risk, mandatory reporting is unequivocally supported. Otherwise, support for mandatory reporting varied according to the age of the respondent and the degree of contact they had with older adults. For example, older respondents with more regular contact with older adults were more ambivalent about mandatory reporting. Interesting to note are the low levels of awareness of older adult abuse and/or neglect in younger adults, the low assessment of one’s own risk when one is over 60 in any age group, the lack of general knowledge regarding legislative frameworks, and the lack of knowledge regarding whom to call on this topic.
Manitoba Report: Abuse of Older Adults 40 Section C ­ Summary of Findings from Older Adult and Professional Interviews “I would never expect a senior to navigate through this, [that is] totally unreal. It is exasperating and [is currently] not [set up] to the benefit of the senior.” Older Adult Interview Participant Older Adult Interviews General. Eight of the ten older adult participants interviewed stated that they did not really consider themselves a “senior”, since a senior was someone who was fragile and older, and some participants did not view themselves as such, despite their age. Most older adult participants stated they had not experienced abuse firsthand, but knew about it only through the media. As the interviews progressed, some participants stated they had heard “about a woman on their street having difficulties”. This was removed from their own personal experience, according to these interviews. Three participants knew about organizations such as Age and Opportunity and the Manitoba Seniors and Healthy Aging Secretariat. Seven out of ten participants stated that they did not know about any seniors’ organizations in the city except those that were culturally specific (e.g. Italian Club). It was felt that if one did not belong to a given cultural group, that one had no access to that kind of centre or inherent supports. Knowledge of Legislative Frameworks. By majority, older adult participants did not know of any specific legislative framework that might protect or support them if they were at risk. Certainly then, older adult participants were not aware of gaps or benefits of any particular legislative framework, although they readily referred to the police and their duty to protect. As one participant stated, “I can’t answer most of these questions because I don’t really know what policy or the relationship to abuse is, and as far as mandatory reporting goes, I don’t know what exists or where, and what the terms are.” Another participant stated: I am not specifically knowledgeable what there is. I know through my work there is a place called the Office of the Public Trustee and I am not clear what they do. But I think if I had a concern about elder abuse or neglect, I think I would probably contact there to find out. It might be a stepping stone. Some participants were able to speak in general terms about any legislative framework. The two men stated clearly that it was essential to take away an abuser’s right to access a victim, if abuse and/or neglect were occurring. The women were more likely to be cautious about
Manitoba Report: Abuse of Older Adults 41 removing a person’s rights, saying a legislative framework could not change everything, and rights should not be taken away too quickly or easily. It was suggested by one female participant that it was better to have a “code of conduct” regarding abuse situations, rather than mandated reporting. Whether a gender difference occurs in views about mandated reporting is an important question (given possible socio­demographic differences between men and women) and the interview data here demands a more detailed study of this topic. Mandated reporting was feared by some as it could force older adults to report even if they were too scared, or if they chose to stay in their situations for complex reasons. Another participant agreed, “We should have some kind of legislation without being aggressive about it. Like just something to make people aware that it is there and that the people [who want it] can seek help and get protected.” One comment about legislating intervention went as follows: Hmmm, it [the abuse] would have to be very serious I think. Yeah, I really have an issue about people meddling in people’s lives where they shouldn’t. How do you draw a clear line because what one professional may perceive of what the time [is that] I would have to step in there: another professional might say, “oh no, no, no, no, it isn’t there yet you know”. It has to be about life, the risk of life. One participant stated clearly that we should have a legislative framework that protects older adults in the same manner that we do for children, but she was not aware of any specific existing legislative framework that might protect her. Again, another participant was hesitant about the power of a legislative framework. She stated, “A law isn’t going to make people do it. It is just going to be there as a working tool for, you know, society”. The role of mandatory reporting was queried by one well­informed participant, who demonstrated some hesitation as to how this might effectively occur: See, this is what is so hard. Once you are a professional [it is hard] to get into the life of a person. It’s like I said, it is privacy, and that’s the one thing; people are private no matter who they are. If they want to talk about it they will, but if they don’t and it’s personal, and you assume that if you are a representative from the government, that’s just one thing . . . If you are from the province or something like that it puts them off right away. You got to be very careful how you approach them. For this reason, including the older adult was considered by some participants to be a critical element in all discussions on protection. As one participant stated: The senior should always be the priority when that happens. There is a concern of the family, there is a concern of the community, there is a concern from the medical people. So, you have all of these views regarding the senior, but what the senior thinks most and wants to do is very important.
Manitoba Report: Abuse of Older Adults 42 Types of Abuse as Identified by Older Adult Interview Participants. The examples that follow are provided by older adult participants and can be categorized as physical, emotional and financial: but the examples also reflect types of abuse, types of abusers, and, sites where abuse happens. A. Physical Table 9 Types of Abuse as Identified by Older Adult Interview Participants B. Emotional C. Financial In a nursing home In a hospital Poor service Not being fed Not being kept clean Medical neglect – related to medications, too much or too little Daughter/son is very mean to parent Psychological intimidation Home care workers steal Financial abuse by adult children Isolating older adult and taking money Alcohol and violence and taking money Immigrants – family back home taking money It is striking that older adults in interviews did not frequently expand on concerns regarding physical abuse. As stated in an earlier section, a better understanding of how older adults view physical abuse may help to understand their low rate of reporting. Older Adult participants did say that financial abuse was the type of abuse most prevalent against older adults. Psychological and emotional abuse was second, with systemic abuses (e.g. home care workers stealing, programs not available) listed third. Cultural issues related to older adult abuse and/or neglect emerged for some older adults. One participant spoke about the role that young adults in gangs play in older adult abuse and/or neglect – the gangs may collect monthly payments from their older adults as part of a verbal agreement to protect them from harm. However, according to the participant, this really means, “we won’t hurt you if you pay us”. One participant suggested the following with regards to the families of older adults: Well, you know, they [adult children] say, “you don’t give me this money or you don’t give me what I want then we won’t come around, or, we won’t be part of your life”. I think that is a big part for elderly people who don’t have good family relationship with their kids or their caregivers. They are being threatened by their own families. In northern communities, two participants stated that older adults may only have access to limited or insufficient health care. It was felt by one participant that northern older adults may be experiencing more health care neglect than their southern partners. Another comment was
Manitoba Report: Abuse of Older Adults 43 the new trend in Aboriginal adults to ask older adult parents to raise their young children, even when those older adults may not have the resources to do so. Reasons not to Report Abuse and/or Neglect. The predominant reasons older adult participants stated they would not want to speak up about abuse and/or neglect to anyone are as follows:
· · · · · · · · · · · · Fear of what dominant society will think of their culture
Need for an interpreter is too scary and complicated
Fear of police
Fear of abusive son
General fear of the world apart from abuse
Lack of information about what to do
No access to a good care home if removed from own home
Dependent on a situation
Did not know about legislative protection
Fear of isolation
Shame and embarrassment at being abused by an adult child
Pride wounded because independence was failing Older Adult participants stated that another challenge for them in reporting abuse was that professionals often changed their jobs – someone they had come to know with a particular title may not be in that position especially when they may need help. Trusting and knowing a professional was viewed as very important when discussing abuse with anyone. Again, shedding more light on why older adults may not report abuse and/or neglect can contribute towards better service provision, and legislative development. Existing and Desirable Supports. Table 10 lists supports older adult participants viewed as valuable in the event of abuse and/or neglect. This list can also be viewed as a wish list, as some older adult participants stated an item and then said, “more of the same”. Table 10 Desirable Supports According to Older Adults Access to professionals Social services and programs Material or product
· Police
· Spiritual and healing groups · Mail­outs
· Lawyers
· Information groups
· Education
· Priests or ministers
· Activities such as bingo that · Phone lines for also distribute information
information and · Doctors or nurses
counseling
· Regular phone calls / visits · Social workers
from community
to isolated · Victoria Lifeline
· New seniors’ advocates
older adults
Manitoba Report: Abuse of Older Adults 44 All participants stated that their direct communities had to become more involved with older adults in general, in order to provide improved safety for older adults at risk. As well, older adults should always be included in decisions that were being made on their own behalf. Professional Interviews and Focus Group Focus on Legislative Frameworks. First, there was unequivocal support that if an older adult had been diagnosed as incompetent and was clearly living at risk, the police should be mandated to step in and protect that older adult. As one professional participant stated, “we should not let that older adult rot in their own risk”. This mirrors the survey responses as well as the view of older adults in the interviews, who stated that if an older adult were in immediate physical danger the police should step in. The type of risk could include physical violence, but other abuses stated by professionals included financial abuse, any type of neglect, or, any kind of medical or chemical restraint that prevented that older adult from seeking help on their own behalf. The view was also held by the majority of professional participants that in cases where older adults (a) appeared to be at risk of abuse and/or neglect and (b) were clearly either competent or predominantly competent, that these older adults must be allowed to choose whether or not to live with risk, as they were adults able to make their own decisions. In such cases, it appeared that program development and improved policies were preferred. The second predominant theme was that in cases where there was no diagnosis of incompetence, and an older adult appeared to be living at risk, that a “response” by the Regional Health Authority, Registered Social Workers, or, other Certified Professionals was favored over a police visit and a formal report. A response would include: information, referrals to relevant agencies, counseling, and developing a safety plan. It may include calling the police, but was generally seen as a preliminary visit. Professionals stated in the interviews that Regional Health Authority and/or Registered Social Workers should have the authority to enter any premise if they had good reason (not necessarily evidence) to believe a person’s life was at risk. A psychosocial (not clinical) assessment of capabilities was preferred by professional participants in the case of someone who appeared to be somewhat confused, but still retained their competence in many areas. This could help to identify whether incompetence in an older adult may be due to dehydration or medical interactions (and not dementia). Developing a relationship of trust with the older adult was seen as a key step towards future “response” interventions. It was believed by the majority of respondents that a series of “responses” could bring about important change for the older adult in the future leading that older adult or another family member to make a formal report down the road. Police were seen as strong allies who should always be involved in a report or a “response”, but the type and degree of this involvement varied according to the situation, and according to
Manitoba Report: Abuse of Older Adults 45 participants. The older adult interviews similarly suggested that while police should be available in cases where risk and incompetence was clear, they may not always be viewed as supports by older adults. Police presence in some cases (except in the most serious case where incompetence and risk was present) might act as a deterrent to an open conversation with a frightened older adult. As used in the Yukon, a “memorandum of understanding” could be drawn up that would clarify the role of communication between the police and social services, so that police would be notified about every call but need not always go on an initial visit, except if violence were clearly occurring. Strategies were intended to be ‘most effective, least intrusive’. Significant concern arose regarding possible financial abuses and health care abuses. Statistics on such cases were not being collected (or made public) by relevant organizations, so very little can be analyzed in this regard. It was stated that if a power of attorney, a primary care provider, or a substitute decision­maker was suspected of also being a perpetrator, a Public Trustee should be allowed to immediately freeze the accounts of the older adult and protect their property from sale or transfer of ownership. If the suspected abuses were of a health care nature, it was felt that all restrictions regarding the privacy of health information should be lifted for a specific set of professionals who would be investigating the report. A more user­friendly definition of over­ and under­medication was hoped for by all professional participants. Computer systems were seen as helpful in tracking medical and other health care abuses. It is suggested that transportation systems be improved so older adults who cannot drive can seek help. Police were not always seen as the most ideal resource (although valuable) in such cases. More explicit legislative framework regarding reporting of financial and health care abuses was seen as favorable. A unified response network was suggested. This meant two things. Reciprocal reinforcement across provinces should be developed, so that provinces have the right to reinforce other provincial legislative framework. A similar approach might function between employment sites as well, where a registry would allow a new employer to seek out the status of a potential new employee. These strategies would help to sustain a unified response network between professionals and older adults at risk across Canada. Focus on Service Provision. Professionals suggested that a specific team of professionals should be designated for older Manitobans. Each member would be well versed in gerontology and older adult abuse and/or neglect. This team may include the Public Trustee, a member of the Geriatric Program Assessment Team (GPAT), clergy, a police officer, a physician, a social worker/mental health worker, and, an older adult volunteer from the community. As part of this team, a full­time “Seniors’ Advocate” could be made available. This person would be trained in gerontology and specific issues related to abuse and/or neglect and they would be tasked as advocates to speak on behalf of older adults who requested their services. Advocacy would reflect inviting older adults into decision­making processes that involved them, and, ensuring that their voices are heard and considered in those decisions. The Seniors’ Advocate would develop regional
Manitoba Report: Abuse of Older Adults 46 and provincial educational programs for the community at large and for older adults more specifically, they would support policy development in local and provincial organizations, and, they could make recommendations to government regarding relevant legislative development. Some professional participants stated that new ‘monitors’ could be trained to assess and analyze how reporting processes were working. This monitor would also be able to assess whether a substitute decision­maker and a power of attorney were abusive or neglectful. The collection of data could be utilized by researchers in the field. Home care workers should be certified so that (a) they could both be held accountable if they were the abusers, and (b) they could have a refined method for reporting on abuses within the daily context of their work. Further, there is no tracking of the cases that are effectively resolved or remain unresolved, so that “lessons learned” are currently communicated through word of mouth, rather than documented knowledge. Five options were provided to professional participants in the interview process to prioritize in the event that future funding became available. The options were education, legislative development, research, care provision, and counseling. Education and care provision were selected as first and second priorities. Education for all relevant parties was seen as a strong priority: professionals and family, community members, lawyers and police, doctors and financial planners, as well as real estate agents, clergy and all First Nations People, and, pharmacists and emergency teams in hospitals. As the survey results similarly stated, accessible information, more education and much more media attention is being requested. It was seen as important to reduce the stigma of being an older adult through such education, a strategy thought to help increase reports of abuse by older adults. Practical information about dementia and confusion was needed for professionals and family members. As well, several professionals wanted more education on disabilities in general. Improving the legal knowledge and financial skills for older adults was seen as valuable. Education for older adults about the internet, online sales, and snail mail lotteries was discussed. Some educational material on abuse and/or neglect of older adults was available, but professionals stated this was not sufficient given language needs in northern communities. Language was deemed key when English was not the predominant language among older adults; it was also noted that some English terms are regionally specific, as in the example where Elders refers to the leaders of First Nations people. The suggestion was made to use the term “older adults” across Canada instead. Care provision was seen as a second priority of the five options presented, but care provision could mean different things. In one case, it was suggested that older adults at risk should be allowed to stay in their home and more formal care provided to them there, while the abuser would be taken from the home. Safe housing was also discussed. In another case, improving care provision meant providing professionals and staff already doing this work with
Manitoba Report: Abuse of Older Adults 47 significantly more administrative supports. In some cases, improved care provision meant more care supports for the non­abusive care provider in the home. Part 3 SUMMARY OF LEGISLATIVE FRAMEWORK PROVIDING PROTECTION TO OLDER ADULTS Introduction In Section 15 (1), the Canadian Charter of Rights and Freedoms prohibits discrimination on the basis of age, or physical or mental disability. Similarly, the Criminal Code is a federal legislative framework, which is applied uniformly across the country, by virtue of the federal government’s constitutional authority over criminal law. Where evidence of a crime exists and where a charge is laid, the criminal justice process can be brought to bear against an accused person. The consequences of this are considered serious in terms of possible penalties. Thus, the Charter of Rights and Freedoms requires that the criminal process ensures fairness in the treatment of an accused by the courts and criminal justice personnel. These protections apply to older adults in the event of abuse and/or neglect. The challenge in applying these two documents lies in the fact that not all older adults want to engage with the legal system at all, and certainly even less if it means taking their own family to court, should they become aware of being at risk for abuse and/or neglect. Another challenge is that not all instances of abuse and/or neglect fall under the Criminal Code. Therefore, protection of older adults at a federal level may not be effective in such cases, or even amenable to older adults, suggesting increasing protection of older adults through provincial legislative framework. Selection of Legislative Frameworks The Manitoba Seniors and Healthy Aging Secretariat provided a list of possible Manitoban and Canadian legislative frameworks to review. An online search for the most current literature on legislative frameworks was sought through the University of Manitoba’s library databases. Conference call meetings with the Canadian Network for the Prevention of Elder Abuse provided additional resources. Other legislative frameworks were selected from within Manitoba and across Canada that fit one or more of the following criteria: 1. It referred specifically to abuse and/or neglect. 2. It referred specifically to vulnerable people. 3. It referred specifically to older adults. Appendix C comprises the list of all legislative frameworks reviewed for this report. Legislative frameworks that were relevant within Manitoba (8) are discussed in the body of
Manitoba Report: Abuse of Older Adults 48 this next section. Appendix D contains a summary in the form of a table, for each province included in this analysis: D1 ­ British Columbia (7), D2 ­ Yukon (6), D3 ­ Saskatchewan (6), D4 ­ New Brunswick (4).
Manitoba Report: Abuse of Older Adults 49 Manitoba Legislative Framework The following Table summarizes eight Manitoba Acts selected given the criteria stated above. Each of these Acts has strengths and gaps that can be applied to protect older adults at risk. Some Acts may be applicable in existing form, but the limited resources could limit its application for these purposes. For this reason, each of the legislative frameworks summarized are followed by a statement of a single action item. This action item acts as a recommendation towards increased service provision given existing strengths of that legislative framework.
Manitoba Report: Abuse of Older Adults Legislation Type of Abuse Domestic Violence and Stalking Act, C.C.S.M., c. D93 Domestic Violence: an act or omission that causes or has a reasonable fear of causing bodily harm or property damage; conduct that constitutes psychological or emotional abuse; forced confinement; sexual abuse. Stalking: repeated harassment that causes the person to reasonably fear for their safety. 1 Reporting Process (Mandatory or Voluntary) Voluntary (onus on victim to seek prevention or protection order)
50 Strengths: Outcome and Content Vulnerabilities: Outcome and Content Capacity/Competency · Broad application (includes family members regardless of cohabitation) 2
· Evidence can be given by telecommunication and acted upon immediately by a JP 3
· Defines tort (personal injury) of stalking 4 Types of Protection:
· Protection Order 5
· Prevention Order 6 which can include a driver’s licence suspension 7
· Does not deal with financial abuse
· Does not refer specifically to elder abuse
· Applies only to acts committed by those with a direct connection to the victim (e.g. cohabitation, family member). For example, it would not include an act encouraged by family member against victim through a third party
· No definition of capacity
· Mental incompetence referred to as reason for disbelieving reasonable fear of stalking 8 ACTION RELEVANT TO OLDER ADULTS: Consider providing more training in community­based organizations so that staff can better act as advocates on behalf of older adults in the event of violence and stalking. Age and Opportunity does have two trained professionals, called Protection Order Designates, who can act as a resource for expanding training in this area to other community based organizations. 1 Section 2, Domestic Violence and Stalking Act. Section 2, Ibid. 3 Section 5, Ibid.. 4 Section 26, Ibid.. 5 Sections 3­13, Ibid.. 6 Sections 14­16, Ibid. 7 Section 15, Ibid.. 8 Section 2(4), Ibid..
2 Manitoba Report : Abuse of Older Adults Legislation Type of Abuse Health Care Directives Act, C.C.S.M., c. H27 Focus of Act on designation of health care decision­making power by directive or proxy for use when incapacitated regarding treatment options. Abuse component of Act focuses on misconduct by proxy of authority relating to medical care. Reporting Process (Mandatory or Voluntary) Review of conduct of proxy by application only (voluntary).
Strengths: Outcome and Content 51 Vulnerabilities: Outcome and Content · This Act provides some assurance · Does not deal with that a “living will” will be respected abuse of older adults by family and medical practitioners
specifically
· Approach to capacity and · Applies only in serious competence is flexible, depending circumstances (e.g., on circumstance 9
maintenance of life support)
· Express limitation on scope of proxy’s authority (e.g., no consent · Can be written quickly, to treatment for medical research; by anyone, with no sterilization; removal of tissue while witness or living). 10 confirmation of proxy Misconduct by proxy can result in suspension or termination of authority 11 , or substitution of decision by court 12 . Strong penalties for “any person who, without the maker's consent, willfully conceals, cancels, obliterates, damages, alters, falsifies or forges a directive or a revocation of a directive is guilty of an offence” 13
Capacity/Competency Capacity to make health care decisions defined if one is able to understand the information that is relevant to making a decision and able to appreciate the reasonable consequences of a decision. 14 Capacity to make decisions can change with time and treatment. 15 Strong penalties proscribed (fine $2000 and/or 6 months imprisonment) 16 ACTION RELEVANT TO OLDER ADULTS: Consider tracking the assignment of and agreements made with proxies. Consider an assessment of their competence, and whether they have a Protection Order against them. A clearer definition of abuse and/or neglect of older adults would be helpful. 9 Section 6, Ibid.. “ A person may have capacity respecting some treatments and not others and respecting a treatment at one time and not at another”. Section 14, Health Care Directive Act. 11 Section 17, Ibid.. 12 Section 17, Ibid. 13 Section 27, Ibid.. 14 Section 2, Ibid.. 15 Section 6(2), Ibid.. 16 Section 27, Ibid.
10 Manitoba Report : Abuse of Older Adults Legislation Personal Health Information Act, C.C.S.M., c. P33.5 Type of Abuse Reporting Process (Mandatory or Voluntary) Voluntary. May share information with outside agency (without consent) if necessary to prevent serious harm. 17
52 Strengths: Outcome and Content Vulnerabilities: Outcome and Content Capacity/Competency · Restriction on use of information only for purpose for which it was collected. 18
· It is an offence to disclose personal health information by employees of trustees 19
· Possible to share personal health information without patient’s consent 20 for purposes of: health care; to lessen or prevent a serious or immediate threat; public safety
· No reference to older adults
· Applies only to personal health information
· Capacity considered only in cases of minors 21
· Capacity only in reference to minors ACTION RELEVANT TO OLDER ADULTS: Consider protocols that specify who should have access to personal health information when older adults are at risk. 17 Section 21, Ibid. Section 21, Personal Health Information Act. 19 Section 63, Ibid.. 20 Sections 21­25, Ibid.. 21 Section 60(e), Ibid..
18 Manitoba Report : Abuse of Older Adults Legislation Type of Abuse Reporting Process (Mandatory or Voluntary) Mandatory 23
Protection Mistreatment, whether for Persons physical, sexual, mental, · Service provider emotional, financial that in Care or person with Act, causes or is reasonably reasonable C.C.S.M., c. likely to cause death or grounds must P144 serious physical or report abuse to the psychological harm to a Minister or the person or significant Minister’s loss to property. 22 delegate 24
· Patient may report 25
Strengths: Outcome and Content 53 Vulnerabilities: Outcome and Content · Patient autonomy to be considered · Act doesn’t apply to a (to an extent) 26
person who is living independently.
· Provides for mandatory reporting 27 , powers of investigation 28 , · Personal health protective action 29 and a mechanism information can be for appeal
disclosed during investigation without · Definition includes possibility of consent of older causing death (enabling urgent resident 31 intervention)
30 · Protects “whistleblowers” from liability, including adverse employment action, if make a report of abuse in good faith
Capacity/Competency No reference to capacity or competence ACTION RELEVANT TO OLDER ADULTS: Consider the possibility of expanding reporting duties designated in this Act, and protection for whistleblowers, beyond institutional care. 22 Section 1, Protection for Persons in Care Act. Section 3, Ibid.. Reports of abuse to Minister or Ministers delegate. 24 Sections 3­4, Ibid.. 25 Section 4, Ibid.. 26 “When making a report, the investigator shall try, to the fullest extent, to involve the patient and to determine and accommodate the patient’s wishes.” Section 7, Supra Note 26. 27 Section 3, Ibid.. 28 Section 5, Ibid. 29 Section 11­12, Ibid.. 30 Sections 10­11, Ibid.. 31 Section 6, Ibid..
23 Manitoba Report : Abuse of Older Adults Legislation Type of Abuse Reporting Process (Mandatory or Voluntary) Focus of Act is on Voluntary any time Powers of person with power of after execution of Attorney Act, attorney who will not be power of attorney on C.C.S.M., c. liable if they act in good review by court 34
P97 faith. 32 Liability where failure to act 33 . No definition of abuse (of power). 54 Strengths: Outcome and Content Vulnerabilities: Outcome and Content Capacity/Competency · Covers financial abuse
· Positive duty to take action on behalf of the grantor to protect the grantor’s interests when unable to make reasonable judgments 35
· Attorney will be held liable for any loss to grantor where attorney failed to act.
· Duty to account on demand or annually 36
· Attorney’s can avoid this duty by not commencing any action and not indicating acceptance of appointment 37 Mental incompetence is the inability of a person to manage his or her affairs by reason of mental infirmity arising from age or a disease, addiction or other cause. Capacity at issue when power executed. ACTION RELEVANT TO OLDER ADULTS: A definition of abuse and/or neglect of older adults would be helpful to clarify actions and inactions taken in accordance with this Act, and protocols that regulate the same. 32 Section 9, Ibid. Section 20, Ibid.. 34 Section 24 (1), Powers of Attorney Act 35 Section 19, Ibid.. 36 Section 22, Ibid.. 37 Section 19(1)(a), Ibid..
33 Manitoba Report : Abuse of Older Adults Legislation Type of Abuse Public Trustee Act, C.C.S.M., c. P225. Reporting Process (Mandatory or Voluntary) The Public Trustee is the official guardian in Manitoba. There is an annual report to Minister of Justice following audit by Auditor General 38
55 Strengths: Outcome and Content Vulnerabilities: Outcome and Content Capacity/Competency · Administers small estates 39
· Annual audit of estates 40
· Liability of trustee for losses assessed on same basis as if a personal liability to discharge, and paid out of Consolidated Fund 41
· Does not deal with older persons specifically No reference to capacity or competence ACTION RELEVANT TO OLDER ADULTS: Consider the gaps to interventions possible by the Public Trustee in the case of an older adult who is experiencing some confusion, is living in the community, and may be living at risk. Clarify how consent is sought regarding decisions made by older adults living with some confusion but with no diagnosis of incompetence. 38 Section 19, The Public Trustee Act. Section 5, Ibid.. 40 Section 17, Ibid.. 41 Section 16, Ibid..
39 Manitoba Report: Abuse of Older Adults Legislation Type of Abuse Reporting Process (Mandatory or Voluntary) Mandatory. Vulnerable Abuse means mistreatment, Duty to report Persons by service Living with whether physical, sexual, mental, provider to a Mental emotional, financial Executive Disability Act, that is reasonably Director 43 who C.C.S.M., c. likely to cause after V90 death or serious investigation physical or may take certain psychological harm action, which to a vulnerable could include person, or “requesting an significant loss to investigation by their property. 42 a law Also includes enforcement neglect. agency with jurisdiction respecting the matter”. 44
Strengths: Outcome and Content 56 Vulnerabilities: Outcome and Content Capacity/Competency · Capacity to retain legal counsel is presumed 45
· Limited · “Capable” refers to applicability. Does mentally capable 54 · Executive Director given power of emergency not apply to those A vulnerable person is intervention where abuse or neglect and whose impairment defined as an adult living immediate danger or serious harm or resulted from with a mental disability deterioration to physical and mental health of accident or illness who is in need of vulnerable person 46
after the age of 18, assistance to meet his or · Extensive framework for substitute decision­ to patients in her basic needs with making, including vulnerable persons psychiatric regard to personal care or commissioner 47 ; vulnerable person entitled to be facilities, or to management of his or her present 48
those who
suffer property. · Substitute decision maker granted broad powers 49 from other forms (max.5 years) with set conditions, only for of mental disorder.
areas where vulnerable person unable to make a · No specific decision alone or with support network. Can reference to abuse include issues relating to health care, place of of older adults
residence 50 (including apprehension order) and/or financial matters 51 (fiduciary duty 52 )
· Prevents fraud for administration of property by substitute decision maker 53
ACTION RELEVANT TO SENIORS: Consider the inclusion of seniors with a diagnosis of incompetence in this Act, and, provide training for staff in community­based organizations on elder abuse and/or neglect 42 Section 1(1), The Vulnerable Persons Living with a Mental Disability Act. Section 21, Ibid.. 44 Section 25(b), Ibid.. 45 Section 2, Ibid.. 46 Section 26, Ibid.. 47 See Part 4 “Substitute Decision Making”, Ibid.. 48 Section 40(3), Ibid.. 49 Section 57(4), Ibid.. 50 Section 62, Ibid.. 51 Section 82, Ibid..
43 Manitoba Report : Abuse of Older Adults Legislation Reporting Process (Mandatory or Voluntary) No definition of abuse Admission to care Mental Health Act, or neglect. Focus of Act can be voluntary or C.C.S.M., c. on mental competence involuntary. Police M110. or incapacity for officer and Public personal care 55 of/by Trustee mandatory individual. E.g., reporting POLICE officer can requirements. Where intervene where involuntary reasonable grounds to admission, reporting believe that the person requirements only has threatened bodily internal to medical harm or behaved facility, information violently to self or is protected by others or shown lack of patient competence to care for confidentiality self; or believes considerations. 58 suffering from mental Report of allegations illness that will result in or concerns of any serious harm to self or abuse is voluntary another person. 56 Also, and at discretion of emergency intervention Medical Director by Public Trustee with consent of permitted where abuse patient or patient’s or neglect 57 (not proxy. 59
52 Type of Abuse Strengths: Outcome and Content · Permits appointment of Committee to manage the adult’s affairs, personal or financial or both
· Public Trustee may be appointed without a court order 60
· Public Trustee can intervene in emergency situations of abuse or neglect
· Any person may apply for a termination, replacement or variation of an appointment 61
· Cannot override a Health Care Directive
· Allows police intervention at risk
57 Vulnerabilities: Outcome and Content · The approach to competence is problematic (an all­ or­nothing approach) Capacity/Competency Mental disorder is a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgement, behaviour, capacity to recognize reality or ability to meet ordinary demands of life, but does not include a disorder due to exclusively a mental disability as defined in the Vulnerable Persons Living with a Mental Disability Act. Capacity to consent to voluntary admission is determined by psychiatrist based on person’s understanding of the nature and purpose of admission; whether Section 99, Ibid.. Sections 100, 108, 139, Ibid.. 54 Section 1(1), Ibid.. 55 Section 3, Mental Health Act 56 Section 12, Ibid. A peace officer has authority to take into custody and then promptly to a place to be examined involuntarily by a physician if the officer believes abuse or harm to self or others, taking all reasonable precautions. 57 Section 64, Ibid.. A Public Trustee may intervene in case of emergency (i.e., abuse or neglect) and immediate danger of death or serious harm or deterioration to physical or mental health of person.
53 Manitoba Report : Abuse of Older Adults defined) on reasonable grounds. 58 condition affects ability to appreciate the consequences of giving or withholding consent. 62 Section 27 deals with “competence” to make decisions. The Public Trustee may be appointed as Committee without a Court order 63 . Mental Health Act continued ACTION RELEVANT TO OLDER ADULTS: Consider how consent is sought from older adults with a diagnosis of incompetence (early stages). Provide training to professionals on the distinction between assessing capacity versus requesting diagnosis for competence. A clearer definition of abuse and/or neglect of older adults would be helpful to clarify how professionals may take action in accordance with this Act. 58 Section 8, Ibid. applies only to admission to psychiatric care, report filed with Medical Director (s.18); no requirement to report of nature of abuse to relevant (external) authorities. Part 5 (s.32­39) deals with Information and Records. Consent of patient required to disclose medical records (s.36). 59 Section 36(2)(e), Ibid. Section 36(2)(e) states that the medial director may disclose such information to “any person, if the medical director reasonably believes that the disclosure is necessary to prevent or lessen a serious and immediate threat to the mental or physical health or the safety of the patient or another person” with the patient’s consent. 60 See Part 8 which gives Public Trustee same powers as a private committee, Ibid.. 61 Section 67, Ibid.. 62 Section 17(2), Ibid.. 63 Section 41 (1), ss. 61­65 and ss. 106­110, Ibid..
Manitoba Report: Abuse of Older Adults 59 Discussion of Primary Themes The following discussion summarizes and highlights four themes that emerged in the review of all legislative frameworks. These themes point to areas of future development. Definitions Key legislation do not define the scope of abuse and/or neglect of older adults. This missing information is essential since such abuse and/or neglect does not always reflect types of abuse and neglect as defined for younger generations. Abuse and/or neglect can encompass financial, physical, psychological and/or sexual abuse, and sometimes neglect is referred to as abuse as well (Podnieks, 2001). In particular, the life of the older adult may contain unique features, which heighten the impact of any kind of abuse and/or neglect. That older adults may have special needs and special claims on society is undeniable. The broadest, most encompassing definition of abuse is contained within the Yukon’s Adult Protection and Decision­Making Act (2003); the definition includes physical, mental and emotional abuse, damage to or loss of assets, as well as neglect and self­neglect to adults. 1 This statement suggests that older adults are covered within this definition. This act is part of a wider, more encompassing legislative framework, the Decision Making, Support and Protection to Adults Act, which was enacted in the Yukon in 2005. In Manitoba, eight pieces of legislation were examined with regards to abuse and/or neglect of older adults (the Domestic Violence and Stalking Act, 1998; the Health Care Directives Act, 1992: the Mental Health Act, 1998; the Personal Health Information Act, 1997; the Protection for Persons in Care Act, 2000; the Powers of Attorney Act, 1996; the Public Trustee Act, 1987; and the Vulnerable Persons Living with a Mental Disability Act, 1993). While several of the acts (such as the Powers of Attorney Act; 1996) make specific references to infants (meaning children under the age of 18), not all acts make reference to older adults, although it is certainly possible for an older adult to come within the scope and application of the various acts. Indeed, the Vulnerable Persons Living with a Mental Disability Act, which has a strong definition of abuse and neglect, 2 coupled with mandatory reporting of any abuse, does not apply to older adults whose impairment resulted from an accident or illness after the age of 18. 3 In other words, those diagnosed later in life with dementia or Alzheimer’s will not be protected by this act. The Protection for Persons in Care Act similarly contains a definition of abuse and neglect, but this applies only to adults who are actively living in care in an institution. This act can be applied to older adults in such settings, but not to those older adults living independently in the community. The Health Care Directives Act (1992), which among other things, includes the provision that a “living will” will be respected, offers little protection from abuse and/or neglect to those who have reduced capacity to make health care decisions. A clearer definition of abuse and/or neglect in the case of health care activities would be helpful in such cases. The Mental Health Act Mental Health Act (1998) could equally be amended to include the term “older
Manitoba Report : Abuse of Older Adults 60 adult”, or to include a stronger definition of abuse and/or neglect referring specifically to types of abuses experienced by older adults. In the event that financial abuses are occurring, without a definition of such abuse and/or neglect, coupled with regulatory (state) oversight, serious abuses of power have the potential to go unchecked. Saskatchewan’s Powers of Attorney Act (2002) makes reference to a remedy of termination of duty for one who abuses his or her authority as power of attorney. However, this will only proceed to court upon the application of any interested party, which has rarely been done by older adults or related family members. Aside from the requirement of an annual accounting, there is no oversight of the decisions made by anyone who is appointed as power of attorney. Further, Saskatchewan and the Yukon have legislative frameworks that provides Powers of Attorney with authority over both personal and financial affairs. It is unclear to date what the term “personal affairs” means and how wide­ranging its scope might be in the case of a power of attorney. Clearer definitions of these terms may better support older adults in the event that abuse and/or neglect is occurring. Mechanisms for Reporting. The laws that encompass components of abuse and/or neglect of older adults can be highly technical in the requirements for reporting, particularly where reporting of abuse is not mandatory. Abuse and/or neglect should be investigated in some manner, although the interviews and survey responses have demonstrated a range of preferences as to how this might be done given a community setting and given older adults’ preferences. The Manitoba Law Reform Commission (1999) had already recommended permitting a broader range of persons, including certain designated persons (such as social workers) and friends or relatives (with the permission of the designated justice of the peace or the court) to apply for orders on behalf of victims. The Yukon (2005) has now legislated that social workers and registered nurses may enter a home with little evidence of abuse and/or neglect but serious concern for an older adult. This may be advantageous to apply in Manitoba as well. It is important that those professionals who come into contact with older adults on a regular basis, and who witness signs of abuse, be protected when they report such abuses. These individuals are commonly known as “whistle­blowers.” In Manitoba, the Vulnerable Persons Living with a Mental Disability Act (1993) provides full immunity for those whistle­blowers who report abuse. Protection for those who report abuse (assuming that they are not the abusers) is important, particularly where reporting is not mandatory. This may encourage reporting of abuse thus providing greater protection for all concerned. Manitoba’s Protection for Persons in Care Act (2000) provides a good definition of abuse for those who are not able to live independently, and requires mandatory reporting for service providers. Whistle­ blowers are similarly protected under this Act. New Brunswick has the Family Services Act (1980), which refers specifically to older adults. When professional persons (as defined by the act) report abuse, they will be protected from any action for making such a report.
Manitoba Report : Abuse of Older Adults 61 Where reporting is voluntary, a related concern is the lack of a well­defined procedure (and publicly available information) as to how a caregiver, victim, or concerned third party can file a report of abuse. It is evident from the interviews with older adults, that few older adults are aware of this possibility much less its mechanisms. Reporting can also be an expensive process, if one must proceed through the court system. This prohibits those who cannot afford to do this, or cannot protect themselves from lawyers hired to work against their best interests. Providing legal supports in such instances is critical. Outlining in more detail the process of reporting would be most helpful and could protect the usefulness and application of this process. This occurs in Yukon’s Care Consent Act (2005), where a “Memorandum of Understanding” was designed to outline more specifically the interactions and communication pathways related to reporting, with a particular emphasis on the role of police and social service provision. Finally, Acts such as the Health Care Directives Act and the Power of Attorney Act may state a set of responsibilities designated to a particular party on behalf of an older adult, but it appears that little is put in place in Acts to regulate whether these parties are fulfilling their duties. Interestingly, the Health Care Directives Act currently protects the proxy decision­ maker against any liability, including the failure to act. It is unclear who is held responsible for reporting in the event that a proxy fails to act on behalf of an older adult, and what can be done about it. A health care directive may have been made many years prior to the time of its coming into effect, and so a proxy now assigned could also have a Protection Order against him or her. In the Yukon, it is specified that an associate decision­maker or representative cannot be one against whom an order has been. However, an abuser under the Yukon’s Family Violence Prevention Act refers only to those who are co­habiting or have co­habited with the older adult concerned; 4 it does not apply to extended family members who have not resided with the adult concerned (e.g., grandchildren, nieces, nephews) when an application for proxy is being considered. In Manitoba, the Domestic Violence and Stalking Act (1998) avoids that issue with a broad application to include all family members regardless of co­habitation. Where a personal decision­maker is appointed under an adult guardianship arrangement, it could be built into the legislative framework that both the adults’ signatures have been witnessed by a third party in order to be eligible, that no Protection Order was or can in the future be taken out on either party, and that the older adult’s and the proxy’s opinions were requested and documented. Saskatchewan’s Adult Guardianship and Co­decision­making Act (2000) requires that evidence be demonstrated that a person cannot manage their own financial or personal affairs, and in this event, another adult has previously been appointed to contribute to their decision­making process. In the example of financial abuse, the Public Guardian and Trustee Act (1983) permits a financial institution to freeze a person’s account for up to five days if it is believed that this person is a vulnerable adult and is being subjected to financial abuse.
Manitoba Report : Abuse of Older Adults 62 Capacity and Competence. Molloy (1992) and others have suggested that capability (or capacity) can exist in many domains prior to a formal designation of incompetence. Competence is fundamental to decision­making for personal, health and financial issues and similarly suggests the ability over time to understand the implications of decisions made and their consequences. Mental incompetence is a clinical diagnosis acquired through a psychiatrist or a physician who is well trained to do that kind of assessment. As the interviews with professionals suggested, varying approaches to defining competence and assessing for competence occur in the community, raising some concerns (Appendix A). First, how is evidence for capacity considered, and by whom? Second, what is the degree to which consent is sought in a person considered to either be confused, and/or, clinically incompetent? Perhaps as important, professionals in the interviews stated that the competency level of proxies was not sought, suggesting that their potential incompetence could equally place an older adult at risk. New Brunswick courts can declare a person mentally incompetent after examining evidence, (Infirm Person Act, 1973) but there are no guidelines documented as to what constitutes convincing evidence, or which criteria for capability should be sought. British Columbia’s Adult Guardianship Act (1996) presumes capability for personal care, health care, legal matters, financial affairs or business assets without defining clearly how this is sought. The Yukon, British Columbia and Saskatchewan have substitute consent instead of guardianship orders. Saskatchewan’s Adult Guardianship and Co­decision­making Act (2000) and British Columbia’s Adult Guardianship Act (1996) deal with "substitute consent" for health care, personal care, and care facility admission. This may be used to help get services for a mentally incapable older adult without the need to go to court for a guardianship order and may be useful for older adults as well. Another issue regarding assessment of capability occurs when seeking consent. A lack of ability to communicate one’s wishes with regards to health care is sufficient to bring into effect a health care directive. This could result in a proxy, who is also an abuser, having control over the older adult’s health care for the duration of their inability to communicate. Yet, as people with disabilities will attest to, the inability to communicate “normally” does not necessarily equate with mental incompetence or an inability to consent. In Manitoba, the potential for stereotypes regarding communication styles may perpetuate abuse of older adults such as in the possible application of the Health Care Directives Act. The preamble states that Manitoba’s law recognizes that, “mentally capable individuals have the right to consent or refuse to consent to medical treatment; [and] this right should also be respected after individuals are no longer able to participate in decisions respecting their medical treatment.” This act presupposes competence based on the ability to communicate; but, if the older adult is unable to communicate in writing and has a health care directive, the proxy shall then
Manitoba Report : Abuse of Older Adults 63 assume control for health care decisions. In the case where a proxy may be abusive, this could pose certain risks. Unless the older adult chooses to revoke the health care directive, the proxy remains in “control” indefinitely. Communication difficulties may render an older adult more vulnerable if the proxy is the abuser. There is provision for review of misconduct of the proxy, but someone must report potential abuses so that it comes to the attention of the courts. Remedies available to the court extend to substituting the court’s decision for that of the proxy vis­à­vis health care decisions or to suspend or terminate the proxy’s authority. Compare this with Manitoba’s Vulnerable Persons Living with a Mental Disability Act, 5 which has an excellent definition of abuse and presumes capacity. It provides an extensive framework for protecting the vulnerable person where there is a need for substitute decision­ making through the Vulnerable Persons Commissioner, as well as provisions for substitute decision­makers. This occurs in clearly defined areas with a maximum duration of power of five years, with no requirement of communication. However, it only applies to those whose mental impairment occurred prior to the age of 18. In Saskatchewan, a health care directive is not valid if it is not written and signed (Health Care Directives and Substitute Health Care Decision Makers Act, 1997). There is, however, a provision that a directive can be made by the adult to a third person (i.e., not the proxy to be appointed nor the proxy’s wife). If someone cannot write or sign this, it may limit their access to this provision. Further safeguards are built into the legislative frameworks, designed to ensure consent for such important decisions. But, in cases of older adults with a disability that renders them unable to sign forms, the legislation could have the effect of perpetuating abuse where the third party is complicit in an abusive relationship. Penalties Family violence laws can restrain an abuser in an emergency situation, or for a longer period of time (three years with automatic extension); however, the legislation is usually limited to those who co­habit with the victim and does not apply to extended family members, such as nieces, nephews or grandchildren, who abuse their older relatives. In general, a court or justice of the peace can issue a protection order, which requires an abusive family member (usually, a spouse) to stay away from the person being harmed or threatened (e.g., the other spouse). The order may also require that they do not interfere with the abused individual’s property. Department of Justice 6 Manitoba has one of the best pieces of domestic violence frameworks in Canada. The Domestic Violence and Stalking Act (1998) has a broad application, provides for protection and prevention orders (which can include a driver’s license suspension) and carries a penalty of a fine of up to $5,000 or imprisonment of not more than two years, or both. Manitoba is the only province that recognizes a tort of stalking, providing those who have been stalked with direct legal recourse to sue the stalker; to facilitate this, the act also states that an action
Manitoba Report : Abuse of Older Adults 64 may be brought without proof of damages. As well, Manitoba provides for evidence to be sworn by telecommunication, which is most beneficial for those older adults living in rural or remote areas of the province. Of the family violence laws that were examined (Manitoba’s Domestic Violence and Stalking Act, 1998; Saskatchewan’s Victims of Domestic Violence Act, 1994; and the Yukon’s Family Violence Prevention Act, 2002), each had a broad application, but none referred specifically to older adults in need of protection from abuse. New Brunswick does not have a specific family violence law but provides protection for family members who are being abused through its Family Services Act (1980) and this act refers specifically to older adults who are being abused. This act applies to people who are older and/or physically or mentally disabled, including both types of abuse, as well as neglect. Financial abuse is not included unless other forms of physical and sexual abuse or neglect have been reported. People who are reporting abuse or neglect are protected by law, and reporting is voluntary. If abuse or neglect has been confirmed, orders to provide a person with services will only occur if that person is deemed mentally incompetent. It may be possible for one against whom there is a protection order to be made the victim’s proxy for health and financial decisions. The Yukon, with its newly enacted legislation (The Adult Protection and Decision Making Act, 2005), expressly prohibits such an appointment. It should be remembered that family violence legislation does not deal with situations of neglect. Manitoba does not have an adult guardianship law, per se, although it does have laws that focus on persons in care (Protection for Persons in Care Act, 2000) and vulnerable persons living with a mental disability (Vulnerable Persons Living with a Mental Disability Act, 1993). The Protection for Persons in Care Act has a provision whereupon the minister, after investigating an allegation of abuse and finding reasonable grounds to support that allegation, can refer the person who has abused a patient to the body that governs that person’s professional status. Further, a body that receives such a report has the requirement to investigate the allegation of abuse. 7 Finally, the act provides specific penalties for those found guilty of abusing a patient of a fine up to $2,000 for an individual and up to $30,000 for a corporation. The Vulnerable Persons Living with a Mental Disability Act also has a section that outlines several types of offences relating to abuse or neglect under this act; upon conviction, the penalty for an individual can be a fine of up to $2000, a term of imprisonment of not more than six months, or both; for a corporation found liable, the maximum fine that can be imposed is $5,000. Adult protection laws focus more on providing the abused person with a range of health, social and other services rather than on penalties for abuse. For example, the Yukon’s Adult Protection and Decision Making Act (2005), which applies to both public and private places of residence, gives options, once abuse has been proven, that include referral of the matter to the RCMP, or to a community process that is based on restorative justice principles, as well as providing for adult protection. Adult guardianship statutes vary across the country, both in the range of autonomy afforded the individual and in the range of penalties. In British Columbia the law, which has a broad definition of abuse, provides for support and assistance
Manitoba Report : Abuse of Older Adults 65 orders that can include remedies of no contact orders, and payment of care and maintenance in cases where the court finds abuse. However, where there is no definition of abuse, there seems also to be no penalty for abuse, as is the case in Saskatchewan (The Adult Guardianship and Co­decision­making Act, 2000). There is often little oversight of people who have been given powers of financial administration of an older person’s affairs, which allows for the abuse of such powers to flourish. The authority to act could be detailed specifically within each piece of relevant legislation, coupled with an independent oversight once a power is delegated, to ensure that the authority is not being abused. For example, the power of attorney legislation in Saskatchewan’s Powers of Attorney Act (2002) is fairly standard in that it provides that the granter, as well as the granter’s family members or the enduring power of attorney, can at any time ask for an accounting of those who have been granted power of attorney over personal or property matters; failure to respond allows the granter or any interested person to seek the assistance of the Public Guardian and Trustee to direct the power of attorney to provide an accounting of their activities. The act gives the power to a financial institution to suspend transactions for five days on (bank) accounts of those suspected of being subject to financial abuse. 8 The Public Guardian can ask the financial institution to freeze withdrawals or payment of funds from the account of an abused older person for up to 30 days, and can investigate allegations of financial abuse. If the power of attorney’s authority is abused, the court can order the termination of attorney’s authority. However, this act does not provide any positive duty to act; further, there is no provision for any misappropriation of funds (although that could be pursued as an offence of fraud under the Criminal Code). In Manitoba, the Powers of Attorney Act (1996) is helpful in that it provides specifically for a duty of the attorney to take action on behalf of the granter to protect the granter’s interests when he or she is unable to make reasonable judgments. Further, the attorney will be held liable for any loss to the granter where the attorney failed to act. The Public Trustee Act (1987) has many provisions and protections for the estates of “infants” in Manitoba, but none specifically for older adults. It is, on the whole, a fairly standard act in terms of its financial oversight of any estate under its authority; it requires an annual audit and provides for a remedy for some types of losses.
Manitoba Report: Abuse of Older Adults 66 Endnotes 1 The Adult Protection and Decision Making Act, S.Y. 2005, c.78, section 58 states that abuse includes physical, mental and emotional abuse; damage to or loss of assets; neglect and self­neglect. Also includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy, denial of access to visitors, or denial of use or possession of personal property. 2 Vulnerable Persons Living with a Mental Disability Act, C.C.S.M., c. V90, section 1 (1) defines abuse as “… mistreatment, whether physical, sexual, mental, emotional, financial or a combination thereof, that is reasonably likely to cause death, or that causes or is reasonably likely to cause serious physical or psychological harm to a vulnerable person, or significant loss to his or her property”. “Neglect means an act or omission whether intentional or unintentional, that is reasonably likely to cause death or that causes or is reasonably likely to cause serious physical or psychological harm to a vulnerable person, or significant loss to his or her property”. 3 “Mental disability means significantly impaired intellectual functioning existing concurrently with impaired adaptive behaviour and manifested prior to the age of 18 years, but excludes a mental disability due exclusively to a mental disorder as defined in section 1 of The Mental Health Act.” 4 The Family Violence Prevention Act, S.Y. 2005, c.78, section 1, defines co­habitants as “… (a) persons who have resided together or who are residing together in a family relationship, spousal relationship, or intimate relationship, or (b) persons who are the parents of one or more children, regardless of their marital status or whether they have lived together at any time.” 5 Vulnerable Persons Living with a Mental Disability Act, C.C.S.M, c. v90, section 1 (1). “Mental disability means significantly impaired intellectual functioning existing concurrently with impaired adaptive behaviour and manifested prior to the age of 18 years, but excludes a mental disability due exclusively to a mental disorder as defined in section 1 of The Mental Health Act.” 6 Department of Justice, Canadian Laws on Abuse and Neglect. For more information, see: http://www.cnpea.ca/canadian_laws_on_abuse_and_negle.htm#Are%20There%20La ws%20To%20Protect%20Older%20Adults%20From%20Abuse 7 Vulnerable Persons Living with a Mental Disability Act, C.C.S.M., Supra Note 14, section 9(2). The Act also protects whistleblowers from adverse employment actions (section 11), as does the Protection for Person’s in Care Act. 8 Powers of Attorney Act, S.S. 2002, section 40.5(2)(b). The financial institution must immediately inform the Public Guardian of such suspicions and follow­up action.
Manitoba Report : Abuse of Older Adults 67 References Adult Guardianship Act, R.S.B.C., c.6 (1996). Adult Guardianship and Co­decision­making Act, S.S., c. A­5.3 (2000). Adult Protection and Decision Making Act, S.Y., c. 78 (2005). Bain, P. & Spencer, C. (2006). Types of abuse and neglect. [Fact sheet 3]. Available from http://www.cnpea.ca/World_Elder_Abuse_Awareness_Day_%20FPT_materials.htm Bain, P. & Spencer, C. (2006). What is Abuse of Older Adults? [Fact sheet 2]. Available fromttp://www.cnpea.ca/World_Elder_Abuse_Awareness_Day_%20FPT_materials.h tm Care Consent Act, S.Y., c. 80 (2005). Decision­Making Support and Protection to Adults Act, S.Y. 2003, c.21. Domestic Violence and Stalking Act, C.C.S.M., c. D93 (1998). Family Services Act, S.N.B., c. F­22, Part III (1980). Family Violence Prevention Act, S.Y., c. 84 (2002). Hawranik, P., & McKean, E. (2004). The abuse of older people: issues and prevention strategies. In C. Ateah, & J. Mirwaldt (Eds.), Within our reach: preventing abuse across the lifespan (pp. 90­123). Black Point, Nova Scotia, Canada: Fernwood Publishing. Health Care Directives Act, C.C.S.M., c. H27 (1992). Health Care Directives and Substitute Health Care Decision Maker Act, S.S., c. H­0.001 (1997). Infirm Persons Act, R.S.N.B., c. I­8 (1973). Manitoba Law Reform Commission. (1999). Report on adult protection and elder abuse. Winnipeg, Canada: Government of Manitoba. Menec, V. (2004). Trends in the Health Status of Older Manitobans, 1985 to 1999. Canadian Journal of Aging. 24, 5­14. Mental Health Act, C.C.S.M., c. M110 (1998). Molloy, D. W. (1992). Let me decide: the health care directive that speaks for you when you can’t. Toronto, Ontario, Canada: Penguin Books. Novak, M., & Campbell, L. (2006). Aging and society, a Canadian perspective (5 th ed.). Toronto, Ontario, Canada: Thomson Nelson. Personal Health Information Act, C.C.S.M., c. P33.5 (1997). Podnieks, E. (2001). Global Response Against Elder Abuse Report from Canada: World Health Organization and International Network for the Prevention of Elder Abuse (INPEA). Ryerson School of Nursing. Podnieks, E. (1992). National survey on abuse of the elderly in Canada. Journal of Elder Abuse and Neglect, 4, 5­58. Powers of Attorney Act, C.C.S.M., c. P97 (1996). Powers of Attorney Act, S.S., c. P­20.3 (2002). Protection for Persons in Care Act, C.C.S.M., c. P144 (2000).Public Guardian and Trustee Act, S.S., c. P­36.3 (1983). Public Trustee Act, C.C.S.M., c. P225 (1987).
Manitoba Report : Abuse of Older Adults 68 Roger, K. (2006). Literature review on palliative care, end of life, and dementia. Palliative and Supportive Care, 4, 1­10. Statistics Canada. (2005). Family violence in Canada: a statistical profile. Ottawa, Ontario: Government of Canada. Ursel, J. (1992). Private lives, public policy: 100 years of state intervention in the family. Toronto, Ontario, Canada: Women’s Press. Victims of Domestic Violence Act, S.S., c. V­6.02 (1994). Vulnerable Persons Living with a Mental Disability Act, C.C.S.M., c. V90 (1993). World Health Organization. (2007, February 6­9). Winnipeg International Workshop on Seniors and Emergency Preparedness. Public Health Agency of Canada, and, the Manitoba Government.
Manitoba Report : Abuse of Older Adults Appendices Appendix A: Definitions of Capacity and Competence Appendix B: Research Instruments Script for Research Assistant to Introduce Study Questions for Older Adult Participants Questions for Professional Participants Survey Appendix C: List of Legislative Frameworks British Columbia Yukon Saskatchewan New Brunswick Manitoba APPENDIX D ­ Provincial Summaries British Columbia Yukon Saskatchewan New Brunswick
69 Manitoba Report : Abuse of Older Adults 70 APPENDIX A Definition of Capacity and Competence in Manitoba In Manitoba, capacity and/or competence are defined in some legislation and not others. When they are defined, the definitions for each term may vary, or, are open to interpretation. The following examples include definitions of either capacity or competence in selected Manitoba legislation: ‘Capacity to make health care decisions is if one is able to understand the information that is relevant to making a decision and able to appreciate the reasonable consequences of a decision. Capacity to make decisions can change with time and treatment’ (Health Care Directives Act, 1992). ‘Mental disorder is a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgement, behaviour, capacity to recognize reality or ability to meet the ordinary demands of life, but does not include a disorder due exclusively to a mental disability as defined in The Vulnerable Persons Living with a Mental Disability Act’ (Mental Health Act, 1998). ‘Capacity to consent to voluntary admission is determined by psychiatrist based on person’s understanding of the nature and purpose of admission; whether condition affects ability to appreciate the consequences of giving or withholding consent’ (Mental Health Act, 1998). ‘Mental incompetence is the inability of a person to manage his or her affairs by reason of mental infirmity arising from age or a disease, addiction or other cause’ (Powers of Attorney Act, 1996). ‘A vulnerable person is defined as an adult living with a mental disability (prior to becoming 18) who is in need of assistance to meet his or her basic needs with regard to personal care or management of his or her property (Vulnerable Persons Living with a Mental Disability Act, 1993).
Manitoba Report : Abuse of Older Adults 71 APPENDIX B Research Instruments A Review of Legislation, Research, and Service Provision Regarding Elder Abuse and/or Neglect in Manitoba and Canada Script for Staff to Introduce Study to Potential Participants: Older Adults and Staff RESOLVE, a family violence research centre at the University of Manitoba, is now beginning a study that reviews legislation regarding elder abuse and/or neglect. This research is approved by the Psychology/Sociology Research Ethics Board at the University of Manitoba. Any questions and complaints may be directed to Dr. J. Ursel (474­8979), or, Dr. K. Roger (474­8965), or, the Human Ethics Secretariat (474­7122). We are currently seeking up to twenty people for this study and, if you participate, we would be asking you specific questions related to particular aspects of elder abuse and/or neglect. The questions will ask you what you believe abuse and/or neglect of elders is, what resources and services for people at risk exist as far as you know, the role of the media, and any recommendations you may for future interventions. The goal is not to specifically ask you personal questions about your experience. While this interview is not seeking your responses to any personal questions, you may experience distress unknown to yourself or the interviewer in advance. If distress occurs during the interviewer, you may choose to discontinue or re­ schedule the interview at no risk to yourself or your involvement in any organization. A professionally trained and designated counselor (Certified Social Worker, Psychologist, Counselor) will be made available to you immediately if you request this. Disclosure of abuse to a child would be reported to authorities as required by law. Your participation would be voluntary and would include an opportunity to first ask any questions you may have about the study. If you agree to participate, you will sign a consent form that confirms your participation and the exact terms of your involvement. Your participation would by both anonymous (e.g. no one will be told that you have participated in this interview), and the things you discuss will remain confidential (e.g. no one will be told what you say). Your name would not be used at any point in the report. The other people who may see your tape or interview transcript include the transcriptionist and a research assistant. Interviews will be set up at a location of your choice, they will last for about one hour and will be taped. Tapes and transcripts will be kept in a locked cupboard.
Manitoba Report : Abuse of Older Adults 72 You may also be invited to participate in a focus group after the interviews are all completed. Other research participants will also be invited: one for older adults and one for service providers. Anonymity of people who participate in the focus group, and, confidentiality of the material that is raised is stressed as essential for the focus group as well. The focus group would include other participants in the study, and would serve to refine or expand on the questions asked in the individual interviews. You will be provided with a summary of the main themes that occurred in the individual interviews, you will be asked to confirm or refine these. You will also be asked whether anything was missed that should now be added to the collected material. You are free at any point to decline or withdraw from the study, at no consequence to your participation in organization ‘x’. At the end of the study, you may ask to receive a copy of the final report once this has been completed, if you also provide your address here. A final report will be prepared that will make recommendations to the Manitoba Seniors and Healthy Aging Secretariat. This report will act to provide guidelines and recommendations for future legislation and policy development, service provision, and research on the topic. If you are interested, you are asked to sign this sheet and provide a contact number for the researcher or her research assistant to contact you. They will answer any questions and if you remain interested, will ask you to sign the consent forms. Your participation would contribute towards an area of significant importance acting to inform older adults in the event of abuse and/or neglect. Benefits of this research will include possible policy development, program development, and further research. Thank­you for your time.
Manitoba Report : Abuse of Older Adults 73 A Review of Legislation, Research, and Service Provision Regarding Elder Abuse and/or Neglect in Manitoba and Canada Questions for Individual Interviews: Participants who are Seniors Demographics: Name________________ Age ____________ Gender__________ Level of Education___________ Employment Status__________ Marital Status_____________ Language of Origin___________ Rural/urban________________ Questions 1. What have you heard or do you know about elder abuse and/or neglect? What types of abuse do you imagine exist? Neglect? 2. What supports are you aware of for seniors experiencing abuse and/or neglect? 3. How would you seek support on this topic if it was required for a friend? For yourself? 4. What do you imagine would hinder a person from seeking support? 5. What recommendations do you have for improving supports for seniors? 6. When should a professional be allowed to intervene (if at all) against a senior’s wishes if a senior is being abused and/or neglected, but someone else has reported this? Who is the best person to intervene in such a case? 7. How do we better support seniors who may be isolated, unwilling, or unable to report abuse and/or neglect? 8. Are you aware of any policies or legislation that protects seniors in such cases in Manitoba? Should we have legislation that protects seniors from abuse and/or neglect? Should it be housed under mental health, family violence, or somewhere else? 9. What would such a policy or legislation state? 10. In provinces that already require mandatory investigation or reporting processes regarding elder abuse and/or neglect, does this restrict (or impinge on) the rights of that senior? When, and how?
Manitoba Report : Abuse of Older Adults 74 A Review of Legislation, Research, and Service Provision Regarding Elder Abuse and/or Neglect in Manitoba and Canada Questions for Individual Interviews: Participants who are Staff Demographics: 1. Title_______________ 2. Affiliation _______________ Questions 1. How long have you worked with seniors? What programs does your organization offer for seniors in general? Can seniors report abuse and/or neglect through your organization, and how? Does your organization openly discuss or display such themes? How? 2. Under what circumstances should a senior who is clearly being abused and/or neglected be protected against their will (e.g. they have not reported it, and/or, they are not willing to agree with someone else’s evidence of the same)? In provinces that already require mandatory investigation or reporting processes regarding elder abuse and/or neglect, does this restrict (or impinge on) the rights of that senior? When, and how? 3. Who, in your opinion, should be able to intervene in a case where a senior is clearly being abused and/or neglected but someone else has reported this, and the senior has not yet come forward? What if the senior is considered very vulnerable: for example, they are considered incompetent, it is uncertain whether they are competent, or, they are refusing assistance? 4. What have you witnessed as most helpful (strategies, and/or existing services): a. when working with a person reporting abuse and/or neglect about someone else? b. a senior reporting abuse and/or neglect themselves? 5. In your opinion, what are the existing gaps in legislation and service provision? 6. Which priorities for development would you set? (1­highest) a. ___________ education for general public, professionals, family and seniors b. ___________ counseling for seniors c. ___________ legislative protection for seniors d. ___________ more research to better understand topic e. ___________ more provision of care supports for primary care providers 7. What resources are required to make these changes happen? What barriers prevent these changes? Please be as specific as you are able for each item. 8. Are you aware of legislation or policies that exist in Manitoba to protect seniors? What changes would you make to existing legislation or policy if you could?
Manitoba Report : Abuse of Older Adults 75 RESOLVE Research and Education for Solutions To Violence and Abuse A Review of Legislation, Research, and Service Provision Regarding Elder Abuse and/or Neglect in Manitoba and Canada RESOLVE, a family violence research centre at the University of Manitoba, is beginning a new study investigating legislation to address elder abuse and/or neglect. This research is approved by the Psychology/Sociology Research Ethics Board at the University of Manitoba. Any questions and complaints may be directed to Dr. Jane Ursel (474­8979), or, Dr. K. Roger (474­6973), or, the Human Ethics Secretariat (474­7122). The purpose of this survey is to gather pilot data from the general population that will serve to refine future legislative and policy development, as well as programming and research on elder abuse and/or neglect. Please read the questions and respond as thoughtfully as you are able. It is important that you respond as honestly as you can, and you may leave out a question at any time. Your name is not required on the survey. Definitions: ‘Senior’: one who has reached the age of 65, and, in the absence of positive evidence of age, means a person who has apparently reached that age. This could include someone who is 55. ‘Abuse’: ‘refers to actions that harm an older person or jeopardize the person’s health or welfare. According to the World Health Organization, abuse and neglect of older adults can be single or a repeated act. It can occur in any relationship where there is an expectation of trust or where a person is in a position of power or authority. Abuse can be physical, emotional, verbal, financial, sexual, or spiritual. ‘Neglect’: ‘can be a part of abuse. Neglect involves not doing something, such as not providing the older person with food, shelter, medication, or care.’ Manitoba Seniors and Healthy Aging Secretariat Your time and contribution are greatly appreciated. The survey responses will contribute significantly towards the development of new legislation serving to protect seniors from abuse and/or neglect. Thank­you!
Manitoba Report : Abuse of Older Adults GENERAL information: A1. Your Age (circle one): _____ up to not including 20 _____ 20­29 _____ 30­39 _____ 40­49 _____ 50­59 _____ 60­69 _____ 70+ A2. Gender (circle one): Male Female A3. Existing Level of Education: (check highest level and circle appropriate status): _____Grade 12 In progress Completed _____Continuing Education or College In progress Completed _____University Bachelor Degree In progress Completed _____Masters Degree In progress Completed _____Doctorate In progress Completed _____Other____________________ In progress Completed A4. Employment Status (you may select more than one): _____ self­employed _____ working for pay (full­ or part­time) _____ retired _____ unemployed / looking for work _____ student _____ caring for a family member _____ collecting disability benefits _____ Other (specify)____________________________________________
76 Manitoba Report : Abuse of Older Adults A5. Your Current Income Level (check highest level applicable): _____ under $1,000. _____ $1,000. ­ $9,999. _____ $10,000. ­ $19,999. _____ $20,000. ­ $29,999. _____ $30,000. ­ $39,999. _____ $40,000. ­ $49,999. _____ $50,000. ­ $59,999. _____ $60,000. ­ $69,999. _____ $70,000. ­ $79,999. _____ $80,000. ­ $89,999. _____ $90,000. and higher A6. Marital Status (select only current status): _____ Married _____ Widowed _____ Divorced _____ Separated _____ Never married _____ Common law _____ Single _____Other____________________________________________________ A7. State the term that you use to identify yourself in relation to your ethnicity (use the term you use):___________________________________ A8. If you identify yourself as someone with a disability, please state the term you use to identify yourself: __________________________________ A9. First Language Spoken: _____________________________________________________________
77 Manitoba Report : Abuse of Older Adults 78 SURVEY QUESTIONS 1. What is your general level of awareness of issues of abuse and/or neglect? Very high quite high average somewhat low very low 2. What is your general level of awareness of issues of abuse and/or neglect towards children? Very high quite high average somewhat low very low 3. What is your general level of awareness of issues of abuse and/or neglect towards women? Very high quite high average somewhat low very low 4. What is your general level of awareness of issues of abuse and/or neglect towards seniors? Very high quite high average somewhat low very low 5. List up to five types of abuse and/or neglect that you think may occur against seniors. a.____________________________________________________________ b.____________________________________________________________ c.____________________________________________________________ d.____________________________________________________________ e.____________________________________________________________
Manitoba Report : Abuse of Older Adults 79 6. Which one of the items in #5 do you think is the most common type of abuse and/or neglect against seniors? _____________________________________________________________ 7. Today, if you knew a senior you thought was being abused and/or neglected, would you know who to call for information? YES NO NOT SURE 8. Do you know a senior who has been in an abusive and/or neglectful relationship? YES NO NOT SURE IF NO OR NOT SURE, PLEASE SKIP TO #11. 9. If you responded yes to #8, did you intervene? YES NO 10. If you responded yes to #9, state the ways you intervened: a.____________________________________________________________ b.____________________________________________________________ c.____________________________________________________________ d.____________________________________________________________
Manitoba Report : Abuse of Older Adults 80 11. List the main reasons that people, in your opinion, do not intervene regarding abuse and/or neglect against seniors. a.____________________________________________________________ b.____________________________________________________________ c.____________________________________________________________ d.____________________________________________________________ e.____________________________________________________________ 12. Which one of the items in #11 do you think is most commonly used not to intervene? _____________________________________________________________ 13. Rate the following (1­highest / 7 – lowest): There was q question here regarding how people interpreted the rating process: rate or rank – needs revision Seniors are most likely to experience abuse and/or neglect from: a._____Paid care providers (in long term care, or, private homes) b._____Family members (not spouse) they live with c._____Family members (not spouse) who do not live with them d._____Spouses who are seniors also e._____Spouses who are not seniors f._____Neighbors g._____Other__________________________________________________
Manitoba Report : Abuse of Older Adults 81 14. Rate the following (1­highest / 6 ­ lowest): Where are seniors most likely to experience abuse and/or neglect? a._____In their own private home b._____On the street c._____In an institutional setting they live in d._____In the hospital e._____In the community f._____Other__________________________________________________ 15. Seniors are most likely to experience abuse and/or neglect due to what factors? a.____________________________________________________________ b.____________________________________________________________ c.____________________________________________________________ d.____________________________________________________________ e.____________________________________________________________ 16. Do you know of particular laws or policies that protect seniors from abuse and/or neglect in Canada? YES NO If yes, list:____________________________________________ 17. If you said yes to the previous question, are you aware whether these legislation are effective in protecting seniors? YES NO If yes, list:______________________________________________
Manitoba Report : Abuse of Older Adults 82 18. Some people say that mandatory reporting may not respect the rights of seniors to stay in relationships that others assess as bad relationships. In provinces that already require mandatory reporting by anyone who suspects abuse and/or neglect against seniors, indicate how much YOU believe that a mandatory reporting process would restrict or violate the rights of that senior? Strongly agree Somewhat Neither agree agree nor disagree Disagree Strongly somewhat disagree 19. Some seniors choose to stay in abusive / neglectful relationships and, as adults, they do not think that anyone should be forced to report this on their own behalf. Other people think that any senior being abused (or suspected of being abused) should have a report made by someone on their behalf. In the following scenarios, assume this person is suspected of being abused / neglected, and indicate in which cases YOU believe mandatory reporting of suspected abuse and/or neglect against seniors should occur? YES NO Healthy active senior with no apparent health concerns YES NO Senior appears to be somewhat confused, with no diagnosis, and is living independently in the community in their own home, or, in a senior’s housing complex (may be receiving care) YES NO Senior has been diagnosed mentally incompetent, is living independently in the community in own home, or, in a senior’s housing complex (may be receiving care) 20. If you believed that a senior you knew was staying in a relationship you suspected was abusive and/or neglectful, would YOU support a mandatory reporting process by anyone who suspected this, on behalf of that senior? YES NO NOT SURE
Manitoba Report : Abuse of Older Adults 83 21. In which form of communication have you heard about elder abuse and/or neglect (check all that apply)? a._____Magazines, billboards, posters, newspapers b._____Television c._____Experience/ Discussion with professionals d._____Experience / Discussion with family or friends e._____Other__________________________________________________ f._____ None 22. If you have heard about elder abuse and/or neglect before, what was the topic? a._____Legal issues regarding seniors and abuse/neglect b._____Description of types of abuse and/or neglect: financial, physical, medical, psychological c._____Sources of help or assistance for seniors d._____Public events: e.g. World Elder Abuse Awareness Day e._____Other__________________________________________________ f._____None 23. Do you think more media coverage would be helpful on elder abuse and/or neglect of seniors? YES NO NOT SURE IF NO, PLEASE SKIP TO #26. 24. If you stated yes or not sure in #23, indicate how much you believe that existing media coverage is adequate on elder abuse and/or neglect of seniors? Strongly agree Somewhat Neither agree agree nor disagree Disagree Strongly somewhat disagree
Manitoba Report : Abuse of Older Adults 84 25. If you stated yes or not sure in #23, where would you most like to see more information for the general public regarding this topic? (1 – highest importance / 5 ­ lowest) a._____Magazines, billboards, posters b._____Television c._____Experience/ Discussion with professionals d._____Experience / Discussion with family or friends e._____Other__________________________________________________ 26. Do you believe that more programs or services would be helpful on this topic? YES NO NOT SURE IF NO, PLEASE SKIP TO #28. 27. If you stated yes or not sure in #26, rate the following in order of importance (1­ highest importance / 6 ­ lowest): a._____Education for general public, professionals, family and seniors b._____Counseling for seniors c._____Legislative protection d._____More research to better understand topic e._____More provision of care supports for primary care providers f._____Other__________________________________________________
Manitoba Report : Abuse of Older Adults 85 28. Have you ever thought about being at risk for abuse and/or neglect once you are over 60? YES NO 29. What would you find the most helpful, if you were experiencing abuse and/or neglect as a senior? a.____________________________________________________________ b.____________________________________________________________ c.____________________________________________________________ d.____________________________________________________________ 30. If you were experiencing abuse and/or neglect as a senior, would you feel that mandatory reporting was a good idea, in your own case? YES NO NOT SURE 31. I am currently a professional care provider of a senior. YES NO 32. I currently have a senior relative in my immediate or extended family. YES NO 33. I will probably provide care for a senior in my family in the next ten years. YES NO If yes, this is likely to be (circle): Full­time Part­time daily Once/week Once/month Less than once a month
Manitoba Report : Abuse of Older Adults 86 34. I currently receive some financial help on a regular basis from a senior. YES NO 35. Senior men and women are at equal risk for abuse and/or neglect. YES NO NOT SURE If no, circle who is at higher risk: senior men senior women 36. Do you spend regular time with a senior close to you (phone calls and/or emails included)? Daily Weekly Monthly a few times a year no N/A
Manitoba Report : Abuse of Older Adults 87 PART II The following is a list of types of abuse and/or neglect towards seniors. As the definition of abuse and/or neglect varies between organizations and depending on contexts, it will be important to develop a revised definition of what elder abuse and/ or neglect is. Which of the following behaviors are you most likely to view as abusive and/or neglectful towards a senior? a.____________ physical (hitting, slapping, pushing) b._____________medical (over­prescription, under­prescription) c._____________health care (lack of appropriate care, administer unwanted care) d._____________psychological (verbal abuse, ignoring, threatening harm) e._____________financial (stealing, accounting decisions, forcing wills) f. _____________sexual (unwanted touching, unwanted sexual activity) g. _____________restrict access to grandchildren h. _____________restrict access to a desired place of faith i._____________other______________________________________ Your time and effort are greatly appreciated. All survey responses will contribute towards the development of new legislation on this topic for Manitobans. Thank­you! Contact information for an Elder Abuse Hotline (toll free 24 hour) will be handed to each survey respondent upon completion of the survey. If you know of someone experiencing abuse and/or neglect, or this is yourself, please do not hesitate to seek help and information today.
Manitoba Report : Abuse of Older Adults APPENDIX C List of Legislation and Related Regulations British Columbia Adult Guardianship Act, R.S.B.C. 1996, c.6. Ø Adult Guardianship (Abuse and Neglect) Regulation, B.C. Reg. 13/2000. Ø Adult Guardianship Act Supplement. Ø Designated Agencies Regulation, B.C.Reg. 19/2002. Family Relations Act, R.S.B.C. 1996, c. 128 (ss. 90­91). Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C., 1996, c. 181. Ø Health Care Consent Regulation, B.C. Reg. 20/2000. Ø Health Care (Consent) and Care Facility (Admission) Act Supplement. Patients Property Act, R.S.B.C. 1996, c. 349. Ø Patients Property Act Rules, B.C. Reg. 311/76. Ø Patients Property Regulation, B.C. Reg. 454/99. Ø Patients Property Act Supplement. Power of Attorney Act, R.S.B.C. 1996, c. 370. Ø Power of Attorney Act Supplement. Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383. Ø Public Guardian and Trustee Fees Regulation, B.C. Reg. 312/2000 Ø Public Guardian and Trustee Regulation, B.C. Reg. 457/99. Ø Public Guardian and Trustee Act Supplement. Representation Agreement Act, R.S.B.C. 1996, c. 405. Ø Representation Agreement Act Supplement. Ø Representation Agreement Regulation, B.C. Reg. 199/2001. Yukon The Adult Protection and Decision Making Act, S.Y. 2005, c.78. Ø Adult Protection and Decision Making Regulation, YOIC 2005/78. Ø Adult Protection Court Rules Regulation, YOIC 2005/79. Care Consent Act, S.Y. 2005, c.80. Ø Care Consent Regulation, YOIC 2005/80. Decision­Making Support and Protection to Adults Act, S.Y. 2003, c.21.
88 Manitoba Report : Abuse of Older Adults 89 Enduring Power of Attorney, S.Y. 2002, c.73. Family Violence Prevention Act, S.Y. 2002, c.84. Ø Family Violence Prevention Regulation Public Guardian Trustee Act, being Schedule C to the Decision­Making Support and Protection to Adults Act, S.Y. 2003, c.21. Saskatchewan The Adult Guardianship and Co­decision­making Act, S.S. 2000, c. A­5.3. Ø Form A: Application for Appointment of Decision­Maker Other than a Temporary Personal Guardian or Temporary Property Guardian, A­5.3 Reg.1. Ø Form B: Affidavit in Support of an Application for a Decision­Maker other than a Temporary Personal Guardian or Temporary Property Guardian, A­5.3, Reg.1. Ø Form C: Application for Confirmation of a Testamentary Nomination (Appointment by Will), A­ 5.3, Reg.1. Ø Form D: Affidavit in Support of an Application for Confirmation of a Testamentary Nomination (Appointment by Will), A­5.3, Reg.1. Ø Form E: Consent to Appointment of a Co­decision­maker or Guardian or to Confirmation of a Testamentary Nomination (Appointment by Will), A­5.3, Reg.1. Ø Form F: Affidavit of Execution, A­5.3, Reg.1. Ø Form G: Statement of Objection, A­5.3, Reg.1 Ø Form H: Application for Appointment of a Temporary personal Guardian or Temporary Property Guardian, A­5.3, Reg.1. Ø Form I: Affidavit in Support of an Application for the Appointment of a Temporary Personal Guardian or Temporary Property Guardian, A­5.3, Reg.1. Ø Form J: Affidavit re Assessment of Adult’s Capacity, A­5.3, Reg.1. Ø Form K: Statement of Inventory re Application for Appointment of a Property Co­decision­maker or Property Guardian, A­5.3, Reg.1. Ø Form L: Annual Accounting by Property Co­decision­maker or Property Guardian, A­5.3, Reg.1. Ø Form M: Bond, A­5.3, Reg.1. Ø Form N: Order Appointing a Decision­maker, A­5.3, Reg.1. Ø Form O: Notice of Authority of Property Decision­Maker, A­5.3, Reg.1. Ø Form P: Withdrawal of Notice, A­5.3, Reg.1. Ø Form Q: Amended Notice, A­5.3, Reg.1. Ø Form R: Application for Review, A­5.3, Reg.1. Health Care Directives and Substitute Health Care Decision Maker Act, S.S. 1997, c. H­ 0.001. Ø The Health Care Directives and Substitute Health Care Decision Makers Regulations, c.H­0.001, Reg.1. Personal Care Homes Regulation, S.S. 1996, c. P­6.01. Ø The Personal Care Homes Regulations, c.P­6.01, Reg.2. Powers of Attorney Act, S.S. 2002, c. P­20.3. Ø An Act to Amend the Powers of Attorney Act, 2002, c. 21.
Manitoba Report : Abuse of Older Adults Ø The Powers of Attorney Regulations, c. P­20.3, Reg.1. Public Guardian and Trustee Act, S.S. 1983, c. P­36.3. Ø The Public Guardian and Trustee Regulations, c. P­36.3, Reg.1. Victims of Domestic Violence Act, S.S. 1994, c. V­6.02. Ø Form A Emergency Intervention Order, V­6.02, Reg.1. Ø Form B Summons, V­6.02, Reg.1. New Brunswick Family Services Act, S.N.B. 1980, c. F­22, Part III. Infirm Persons Act, R.S.N.B. 1973, c.I­8. Mental Health Act, R.S.N.B. 1973. c.M­10. Ø Mental Health Advisory Committee Regulation 97­127. Nursing Homes Act, S.N.B. 1982, c.N­11. Ø Nursing Homes Regulation (general), 85­187. Ø Service and Care Regulation 2001­59. Also: Adult Victims of Abuse Protocols (full report) Manitoba Domestic Violence and Stalking Act, C.C.S.M., c. D93. Ø Ø Ø Ø The Domestic Violence and Stalking Regulation The Domestic Violence and Stalking Regulation (amendment – Dec.’06) The Domestic Violence and Stalking Regulation (Protection and Compensation Act) The Domestic Violence and Stalking Regulation Compensation Amendment Health Care Directives Act, C.C.S.M., c. H27. Mental Health Act, C.C.S.M., c. M110. Ø The Mental Health Act – Regulation – Charges Payable by Long Term Care Patients Ø The Mental Health Act – Regulation – Charges payable by Long Term Care Patients – amendment (2000) Ø The Mental Health Act – Regulation – Charges payable by Long Term Care Patients – amendment (2002) Ø The Mental Health Act – Regulation – Charges payable by Long Term Care Patients – amendment (2003) Ø The Mental Health Act – Regulation – Charges payable by Long Term Care Patients – amendment (2005) Ø The Mental Health Act – Regulation – Charges payable by Long Term Care Patients – amendment (2006)
90 Manitoba Report : Abuse of Older Adults 91 Ø The Mental health Act – Regulation – Cost of Maintenance of Patients (GovCan Responsibility) (1993) Ø The Mental Health Act – Regulation – Facilities Designation – Amendment (2000 – B) Ø The Mental Health Act – Regulation – Facilities Designation – Amendment (2000) Ø The Mental Health Act – Regulation – Facilities Designation (1999) Ø The Mental Health Act – Regulation – Health Profession Designation (2001) Ø The Mental Health Act – Regulation – Mental Health Acts Forms Ø The Mental Health Act – Regulation – Review Board Hearing Regulation Ø The Mental Health Act – Regulation – Standards Committee Regulation Personal Health Information Act, C.C.S.M., c.P33.5. Ø Personal Health Information Regulation Protection for Persons in Care Act, C.C.S.M., c. P144. Ø Designation of Health Facilities Regulation Powers of Attorney Act, C.C.S.M., c.P97. Public Trustee Act, C.C.S.M., c.P225. Ø Public Trustee Fees Regulation Vulnerable Persons Living with a Mental Disability Act, C.C.S.M., c.V90. The Vulnerable Persons Living with a Mental Disability Act Regulation
Manitoba Elder Abuse Report 92 APPENDIX D ­ Provincial Summaries British Columbia Yukon Saskatchewan New Brunswick
Manitoba Report: Abuse of Older Adults 93 ABUSE OF OLDER ADULTS and EXISTING LEGISLATION BRITISH COLUMBIA Legislation Type of Abuse Adult Guardianship Act, R.S.B.C. 1996, c. 6. Physical, mental and emotional abuse; damage to or loss of assets; neglect and self­neglect. Includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors. 64 64 Section 1, Adult Guardianship Act. Section 46 (1), Ibid.. 66 Sections 46 – 51, Ibid.. 67 Section 52, Ibid.. 68 Section 56, Ibid.. 69 Section 59 (1)(c), Ibid.. 70 Section 45, Ibid.. 71 Section 49, Ibid.. 72 Sections 53­57, Ibid..
65 Reporting Process (Mandatory or Voluntary) Voluntary. 65 However, designated agencies have a duty to report the commission of a criminal offence to the police. 66
Strengths: Outcome and Content Vulnerabilities: Outcome and Content Notes · Applies to personal care and property
· Duty for designated agency to involve adult in decision making as to support and assistance and how to prevent abuse in future 67
· Support and assistance orders are granted by courts upon a finding that an older resident is mentally incapable of receiving support and assistance. 68
· Emergency assistance can be given without consent 69
· Broad application; applies to abuse and/or neglect in both public institutions and private homes 70
· Designated agency investigation claim of abuse may seek order from court authorizing entry to premises or in cases of emergency, seek a warrant from JP 71
· Provides for support and assistance orders 72 which can include remedies of
· No definition of consent given; presumed same as Health Care (Consent) Act (as Act shares definitions)
· No reference specifically to abuse of older adults
· Guiding principles include respect for adult’s decisions; most effective and least intrusive support, care and/or protection; court should not appoint decision makers or guardians unless alternatives, such as the provision of support and assistance, have been tried or carefully considered 74
· If an older resident is dissatisfied with the response from the care facility, he or she may contact a Community Liaison Officer for that particular facility. Every regional health authority in B.C. has ‘community care liaison officers’ who respond to concerns from government­ funded care facilities. This Manitoba Report: Abuse of Older Adults no contact orders, payment of care and maintenance where court finds abuse 73 British Columbia: Adult Guardianship Act continued 73 74 Section 56(3)(c) and (d), Ibid.. Section 2, Ibid..
94 joint effort of the Chief Licensing Officer and Community Liaison Officer reflects B.C.’s integrated approach by involving persons other than care facility operators to respond to allegations of wrongdoing, while promoting inter­ departmental coordination. Manitoba Report: Abuse of Older Adults Legislation Type of Abuse No definition of Family Relations Act, abuse R.S.B.C. 1996, C. 128 (ss.90­ 91 only). Legislation Type of Abuse No definition of Health Care (Consent) and abuse Care Facility (Admission) Act, R.S.B.C. 1996, c. 181. 75 95 Reporting Process (Mandatory or Voluntary) No reference to any reporting requirement
Strengths: Outcome and Content Vulnerabilities: Outcome and Content Notes · “A child is liable to maintain and support a parent having regard to the other responsibilities and liabilities and the reasonable needs of the child” 75
· Broad application of who may apply for an order 76 including the parent concerned
· Could be a route whereby state passes on its obligation to assist an older person
· No reference to penalty where failure by child to maintain or support This section of the Family Relations Act deals with the obligation to support parent(s). Reporting Process (Mandatory or Voluntary) Voluntary
Strengths: Outcome and Content Vulnerabilities: Outcome and Content Notes · General rule that consent is required 77
· Can provide health care without consent in cases of emergency 78 but no emergency health care where contrary to wishes 79
· If refusal to emergency health care by guardian or substitute decision maker, health care provider can override if believe representative in breach of guidelines of Act 80
· Outlines approach for health care provider’s determination of incapacity 81
· Details approach to obtaining temporary substitute decision maker which includes requirement that person not have any dispute with the adult in need of care 82 Section 90 (2), Family Relations Act. Section 91, Ibid.. 77 Section 5, Ibid.. Consent includes consideration of voluntariness, not by misrepresentation or fraud, Section 6, Ibid.. Section 9 outlines scope of consent. 78 Section 12, Ibid..
76 Manitoba Report: Abuse of Older Adults Legislation Type of Abuse No definition of Patients Property Act, abuse R.S.B.C. 1996, c. 349. 79 Section 12.1, Ibid.. Section 12.2, Ibid.. 81 Sections 7­8, Ibid.. 82 Section 16­19, Ibid.. 83 Section 2, Patients Property Act. 84 Section 4, Ibid... 85 Section 5 (2)(b), Ibid.. 86 Sections 6­9, Ibid.. 87 Section 10, Ibid.. 88 Section 11(2), Ibid..
80 Reporting Process (Mandatory or Voluntary) Voluntary
Strengths: Outcome and Content Vulnerabilities: Outcome and Content · Provides for order declaring person no longer capable of managing self or own affairs 83
· Provides for an order of no longer incapable 84 (Court may order examination by panel of 3 or more medical specialists to determine mental competency 85 )
· Court can appoint any person to be a member of the patient’s committee 86
· If property more than $25,000 committee must give Public Trustee an account of the property within 30 days or if ordered by the court 87
· Deals only with those admitted to health care facilities; does not apply to those living independently
· Focus only on property
· After a person is deemed capable and released from provincial facility, it is possible for the Public Guardian and Trustee to retain control of the person’s estate “so long as it is in the Public Guardian and Trustee's opinion necessary or desirable in the interests of that person or of the person's estate.” 88
· Possibility for abuse for estates valued at under $25,000 without court intervention 96 Notes Manitoba Report: Abuse of Older Adults Legislation Type of Abuse No definition of Power of Attorney Act, abuse R.S.B.C. 1996, c. 370. 89 90 Section 4, Power of Attorney Act.. Section 8(2), Ibid..
Reporting Strengths: Outcome and Content Process (Mandatory or
Voluntary) Voluntary
· Positive duty to account, either on demand or annually
· Revocation of power of attorney must be express and notice given to the attorney 89 Authority of attorney terminates by order of Patients Property Act or appointment of committee 90
97 Vulnerabilities: Outcome and Content · No positive duty to act
· No reference to seniors or abuse of older persons
· Vague law (not clear whether include health care decisions) Notes Manitoba Report: Abuse of Older Adults Legislation Type of Abuse Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383. No definition of abuse. Abuse referred to as justification for audit for an adult who does not have a decision maker or guardian as defined in the Adult Guardianship Act. 91 91 Reporting Strengths: Outcome and Content Process (Mandatory or
Voluntary) Voluntary
· Focus on property and estates
· Must establish investment advisory committee for trust fund account which must be invested in a common fund 92
· Can investigate accounts under power of attorney and those who do not have a decision maker or guardian but are abused under Adult Guardianship Act 93
· Can investigate personal and health care decisions of representative or decision maker or guardian 94
· Where adult abused or neglected, in cases of emergency and believes financial assets in need of protection, Public Guardian can instruct no funds be withdrawn from an account and halt any disposition of real or personal property 95
· Reports annually to Attorney General, with audited financial statements 96
Section 17(1), Public Guardian and Trustee Act. Section 9­10, Ibid.. 93 Section 17(1), Ibid.. 94 Section 17(2), Ibid.. 95 Section 19, Ibid.. 96 Section 25(1), Ibid..
92 98 Vulnerabilities: Outcome and Content Notes · No mandatory reporting of abuse
· No reference to involvement or consultation of adult in decision making
· No reference to review accounts of older people Includes powers given to the Public Guardian and Trustee by the Adult Guardianship Act, the Health Care (Consent) and Care Facility (Admission) Act and the Representation Agreement Act. Manitoba Report: Abuse of Older Adults Legislation Type of Abuse Representa­ tion Agreement Act, R.S.B.C. 1996, c. 405. Abuse referred to only once in Legislation, without definition, in context of objecting to an agreement to the Public Trustee 97 97 Reporting Strengths: Outcome and Content Vulnerabilities: Process Outcome and Content (Mandatory or
Voluntary) Voluntary
· Should adult become mentally incapable, Act provides · No proscribed penalties for representatives to be appointed for property when breach of (financial decisions) and for personal care, for health agreement care and legal decisions. 98
· Must keep accounts and records and must produce them upon request to do so by the grantor, the grantor’s monitor, or the Public Guardian and Trustee. 99
· Each representation agreement has a separate monitor 100
· To revoke a representation agreement, grantor must be capable of making agreement in order to revoke, and written notice must be given to each representative, alternate representative, and monitor
· Representative has a duty to act 101 and consult with adult about decisions 102
· Duty to keep information confidential 103 yet a right to information for relevant decisions 104
· Any person can object if suspect fraud, abuse 105 and Public Guardian will investigate 106 ; an also apply for a court order in such circumstances 107
Section 30(1)(b), Representation Agreement Act. Sections 7 and 9, Ibid.. 99 Sections 16 (8), Ibid.. 100 Section 12, Ibid.. 101 Section 16 (1), Ibid.. 102 Section 16 (2), Ibid.. 103 Section 22, Ibid.. 104 Section 18(1), Ibid.. 105 Section 30, Ibid.. 106 Section 31, Ibid.. 107 Section 32, Ibid..
98 99 Notes Manitoba Report: Abuse of Older Adults 100 ABUSE OF OLDER ADULTS and EXISTING LEGISLATION YUKON Legislation Type of Abuse The Adult Protection and Decision Making Act, S.Y. 2005, c.78. Physical, mental and emotional abuse; damage to or loss of assets; neglect and self­ neglect. Also includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy, denial of access to visitors, or denial of use or possession of personal property. 108 Also includes neglect and self­neglect. 108 Reporting Process (Mandatory or Voluntary) Voluntary
Strengths: Outcome and Content Vulnerabilities: outcome and content Notes · Prohibits associate decision maker 109 or representative 110 as being one against whom an order has been made under the Family Violence Protection Act.
· Respects values, beliefs, wishes, and cultural norms and traditions when managing an adult’s affairs. 111
· Until contrary proven, every adult considered capable of managing own affairs 112
· When managing an adult’s financial affairs, representatives 113 and guardians 114 are fiduciaries
· Applies to public or private places of residence 115
· Options for agency after investigation proves abuse include referral of matter to RCMP (criminal); refer matter to community process based on restorative justice principles; apply for adult protection order, etc.. 116
· Defines process for adult protection order 117
· Where incapable adult disposes of an asset, the disposition is void if receive less than fair market value and reasonable person knew incapable. 118
· No specific reference · This is Canada’s to abuse of older newest piece of persons
Legislation that could be applied in cases of · Focus not to punish abuse of older abuser rather on persons; much victim, to enable consultation with emergency community groups intervention by went into the drafting relevant agency and process. Part of the providing alternatives Decision Making, to managing adult’s Support and affairs;
Protection to Adults Act.
· Yukon’s supported decision­making agreements lie in the middle between full guardianship and the presumption of an adult making capable decisions. Section 58, The Adult Protection and Decision Making Act being Schedule A to the Decision­Making Support and Protection to Adults Act. Section 7 (b), Ibid. 110 Section 16, Ibid.. 111 Section 2 (e), Ibid.. 112 Section 3, Ibid. 113 Section 23(2), Ibid.. 114 Section 43(2), Ibid..
109 Manitoba Report: Abuse of Older Adults Legislation Type of Abuse Care Consent Act, S.Y. 2005, c. 80. No definition of abuse 115 Reporting Process (Mandatory or Voluntary) None specified
Strengths: Outcome and Content 101 Vulnerabilities: Outcome and Content · Consent rights defined 119 ; includes right to · Consent not required refuse on religious or moral grounds even if for all interventions will result in death;
(e.g., emergency, preliminary · Consent required to provide care 120
examinations and · Incapability (to consent) defined 121
treatment already in · Defines criteria for establishment of a 122 progress) substitute decision maker , can be a family member or a friend
· Creates provision for “Last Resort Substitute Decision Maker” 123
· Substitute decision maker has a duty to consult with care recipient before giving or refusing consent 124
· Creation of a Capability and Consent Board 125
· Provides for a certificate of need for financial protection 126 No action may be brought against a person acting in good faith with reasonable care 127
Notes This Legislation is part of 3 pieces of separate but interdependent pieces of Legislation, which are part of the Decision Making, Support and Protection to Adults Act, namely:
· the Adult Protection and Decision­Making Act;
· the Care Consent Act; and the Public Guardian and Trustee Act. Section 60(1), Ibid.. Section 69, Ibid.. 117 Sections 70 – 80, Ibid.. 118 Section 81(1), Ibid.. 119 Sections 3­5, “Consent Rights”, Care Consent Act. 120 Section 4, Ibid.. 121 Section 6, Ibid.. 122 Sections 9­12, Ibid.. 123 Section 13, Ibid.. 124 Section 18, Ibid.. 125 Sections 37 – 60, Ibid.. The Capability and Consent Board is a body comprised of health care providers, lawyers, and community representatives who work with disabled adults. This Board reviews consent matters, and provides legal recourse for those wishing to appeal to the Yukon Supreme Court. 126 Section 61 Ibid.. 127 Section 64, Ibid..
116 Manitoba Report: Abuse of Older Adults Legislation Enduring Power of Attorney, S.Y. 2002, c.73. 128 Type of Abuse Reporting Process (Mandatory or Voluntary) Voluntary
Section 3 (4)(d), Enduring Power of Attorney Act. Sections 4­5, Ibid.. 130 Section 9, Ibid.. 131 Section 11, Ibid.. 132 Section 14, Ibid.. 133 Section
129 Strengths: Outcome and Content 102 Vulnerabilities: Outcome and Content · Can be for personal care or property or both
· No specific reference to abuse of older persons · Extra protection for a valid power of attorney include: 1) a certificate of legal advice signed by a lawyer who is not the attorney or the attorney’s spouse; and 2) an acknowledgement signed by the attorney of their agreement to the appointment. 128
· Power of attorney void if incapacity of donor at time of appointment 129
· Duty to act 130
· Application for accounting by donor or interested parties permitted 131
· Representation agreement can be revoked by making a subsequent representation agreement 132
· Representation agreements expire after a maximum of 3 years 133
Notes Manitoba Report: Abuse of Older Adults Legislation Type of Abuse Family Violence Prevention Act, R.S.Y. 2002, c.84. Family violence defined as: family violence” means (a) any intentional or reckless act or omission that causes bodily harm or damage to property, (b) any act or threatened act that causes a reasonable fear of bodily harm or of damage to property, (c) forced confinement, (d) sexual abuse, or (e) depriving a person of food, clothing, medical attention, shelter, transportation, or other necessaries of life 134 134 Reporting Process (Mandatory or Voluntary) Victim may apply for protection order. A person with leave of judge may also apply on behalf of victim where reasonable grounds. Section 1, Family Violence Prevention Act. Sections 4­6, Ibid.. 136 Sections 7­8, Ibid.. 137 Section 11, Ibid..
135 103 Strengths: Outcome and Content Vulnerabilities: Outcome and Content Types of Protection Orders:
· Emergency Intervention Order 135 ;
· Victim’s Assistance Order 136 ;
· Warrant Permitting Entry 137 .
· Does not deal with financial abuse
· Limited application; applies to co­ habitants or intimate partners only not adult children, other relatives, etc., not residing with abused adult
· No specific reference to older victim Notes Manitoba Report: Abuse of Older Adults Legislation Reporting Process (Mandatory or Voluntary) No definition of abuse.
Depending on Public the enabling Act, Guardian and · Part 2 of the Act is the Public Trustee Act, “Investigation of being Trustee reports Financial Abuse” but Schedule C to to different does not give a 138
the Decision­ definition of “financial heads Making abuse” Support and Protection to Adults Act, S.Y. 2003, c.21. 138 Type of Abuse Section 11, Public Guardian and Trustee Act. Section 12, Ibid.. 140 Section 13, Ibid.. 141 Section 18, Ibid.. 142 Section 23 (4), Ibid.. 143 Section 24, Ibid..
139 Strengths: Outcome and Content 104 Vulnerabilities: Outcome and Content · Focus is on financial protection (and · No reference to investigation) 139
personal care decisions
· Administers estates of those who die intestate
· Not liable for any loss that for which a · Provides temporary estate protection
private trustee would · Authority to act as Statutory guardian of an not be liable 143
estate (under Care Consent Act) 140
· Authority to intervene in cases of emergency where adult abused or neglected (as defined in Adult Protection and Decision Making Act) 141
· Is a public body for purposes of Acces to Information and Pivacy Act – giving broad authority over all but solicitor­client privilege 142
Notes · Part of the Decision Making, Support and Protection to Adults Act.
· Acts on authority of: Enduring Power of Attorney Act; The Care Consent Act; and The Adult Protection and Decision Making Act.
· Strives for transparency over confidentiality Manitoba Report: Abuse of Older Adults 105 ABUSE OF OLDER ADULTS and EXISTING LEGISLATION SASKATCHEWAN Legislation Type of Abuse No definition of abuse Adult Guardianship and Co­ Decision­ making Act, S.S. 2000, c. A­5.3 144 Reporting Process (Mandatory or Voluntary) Voluntary
Section Adult Guardianship and Co­Decision­making Act. Section 3 (b), Ibid.. 146 Section 3 (c), Ibid.. 147 Section 21(1)(a), Ibid.. 148 Section 22 (4), Ibid.. 149 Section 25, Ibid.. 150 Section 50, Ibid.. 151 Section 39, Ibid..
145 Strengths: Outcome and Content Vulnerabilities: Outcome and Content · Applies to personal care and property · No specific reference related decisions 144
to older adult (just 145
“adult over age of · Capacity presumed 16”) · Protects living independently, accepting or refusing assistance, support and protection “as long as they do not harm themselves or others” 146
· Respects wishes of adult
· Consent of person appointed required before appointment of personal care decision­ maker 147 . Proscribed limitations on authority of personal care decision­maker 148
· Personal care decision maker required to act diligently, ensure protected adult’s human rights are respected and encourage the adult to participate in decisions and to act independently, limiting interference in the adult’s life as much as possible 149 ; similar duties for property decision makers 150
· Whether a property co­decision maker or property guardian is appointed, subject to many considerations, including wishes of the adult 151
Notes “capacity” means the ability: (i) to understand information relevant to making a decision; and (ii) to appreciate the reasonably foreseeable consequences of making or not making a decision 160
· Capacity is presumed Manitoba Report: Abuse of Older Adults · A property co­decision maker shall acquiesce to decision of adult 152
· Adult has right to be informed of all decisions by property decision­maker 153
· Requirement to provide inventory of estate within 6 months of appointment 154 and then an annual accounting thereafter to the local registrar of the court, the public guardian and trustee and the property co­decision­ maker 155
· Full indemnity for acts pursuant to Act 156 and immunity for performance of duty 157
· Court may review appointment 158 and can discharge decision­maker where “acts in an improper manner or in a manner that has endangered or that may endanger the well­ being or the estate of the adult” 159 Saskatchewan: Adult Guardianship and Co­Decision­making Act continued 152 Section 42(2), Ibid.. Section 45, Ibid.. 154 Section 53(1)(a), Ibid.. 155 Section 54, Ibid.. 156 Section 62, Ibid.. 157 Section 70, Ibid.. 158 Section 66 (1), Ibid.. 159 Section 67(1)(b)(iii), Ibid.. 160 Section 2 (c), Ibid..
153 106
Manitoba Report: Abuse of Older Adults Legislation Type of Abuse Health Care Directives and Substitute Health Care Decision Makers Act, S.S. 1997, c. H­0.001. No definition of abuse 161 Reporting Process (Mandatory or Voluntary) Voluntary
Strengths: Outcome and Content Vulnerabilities: Outcome and Content Notes · Health care directive in effect when incapacity to make a health care decision and remains in effect until capacity regained 161
· Proxy shall act in patient’s best interests or wishes 162
· Proxy can admit adult to health care facility 163
· Order can be made to Court of Queen’s Bench where proxy not acting in good faith and in accordance with Act 164
· No action against proxy acting in good faith or who fails to make a health care decision in accordance with a directive 165 Focus only on health care “capacity” means the ability: (i) to understand information relevant to a health care decision respecting a proposed treatment; (ii) to appreciate the reasonably foreseeable consequences of making or not making a health care decision respecting a proposed treatment; and (iii) to communicate a health care decision on a proposed treatment 166 Section 4, Health Care Directives and Substitute Health Care Decision Makers Act.. Section 12, Ibid.. 163 Section 18, Ibid.. 164 Section 20, Ibid.. 165 Section 22(2), Ibid.. 166 Section 2 (b), Ibid..
162 107 Manitoba Report: Abuse of Older Adults Legislation Type of Abuse Personal Care Homes Regulation, S.S. 1996, c. P­6.01. No definition of abuse 167 Reporting Process (Mandatory or Voluntary) Voluntary
Sections 16­17, Personal Care Homes Regulation. Section 11, Personal Care Homes Act.. 169 14.1(1)(c), Ibid... 170 Section 14, Ibid.. 171 Section 11(6), Ibid..
168 Strengths: Outcome and Content 108 Vulnerabilities: Outcome and Content · Prior to moving into a personal care home, · Does not apply to an admission agreement is signed between older adults living the older client and the province independently
(Department of Health) 167
· No definition of or · Minister (or representative) may make any reference to capacity visit or investigation and be provided full access to the facility and all records 168
· Minister has power to appoint administrator in place of licensee who has a criminal record 169
· The Act grants authority to Saskatchewan Health to remove, suspend, or modify licenses from those institutional care facilities that fail to comply with adult protection standards 170
· In cases of emergency (reasonable grounds), Minister (or representative) can enter facility without a warrant 171
Notes Manitoba Report: Abuse of Older Adults Legislation Type of Abuse Powers of Attorney Act, S.S. 2002, c. P­20.3. No definition of abuse. Specific reference to abuse of enduring power of attorney powers 172 172 Reporting Strengths: Outcome and Content Process (Mandatory or Voluntary) Voluntary. Upon · Restrictions on who can be appointed power application to of attorney (e.g., cannot have conviction for court.
sexual assault, other acts of violence, etc.) 173
· Provides for powers of attorney for property, financial and/or for personal affairs
· Positive duty for attorney for property to account either on demand by grantor or family member or annually 174 .
· Attorney for personal affairs required to account for decisions upon request by power of attorney, grantor or family member. Remedy specified if no accounting 175 includes recourse to Public Guardian and Trustee and then if still no success to court for specific order It is an offence to alter a directive 176
109 Vulnerabilities: Outcome and Content Notes · Does not deal with health care decisions (which are governed by The Health Care Directives and Substitute Health Care Decision Makers Act.) 177
· Duties to act honestly, in good faith and in best interests; but no requirement for any action to be taken (no positive duty to act) 178 “Capacity” means the ability: (a) to understand information relevant to making decisions with respect to property and financial affairs or personal affairs, as the case may be; and (b) to appreciate the reasonably foreseeable consequences of making or not making a decision referred to in clause (a) 179 Section 19 (1), Powers of Attorney Act. Section 6, Ibid.. “No person shall act as an attorney: (a) in the case of an individual: (i) unless the individual is 18 years of age or older and has capacity; (ii) who is appointed to act as a property attorney, if the individual is an undischarged bankrupt; or (iii) subject to subsection (2), if the individual has been convicted within the last 10 years of a criminal offence relating to assault, sexual assault or other acts of violence, intimidation, criminal harassment, uttering threats, theft, fraud or breach of trust; or (b) if the person’s occupation or business involves providing personal care or health care services to the grantor for remuneration. (2) An individual mentioned in subclause (1)(a)(iii) may act as an attorney: (a) if the individual has been pardoned; or (b) if, while the grantor has capacity, the individual discloses the fact of the conviction to the grantor and the grantor: (i) acknowledges the conviction in writing; and (ii) consents in writing to the individual acting.” 174 Section 18, Ibid.. 175 Section 18 (3), Ibid.. 176 Section 24, Ibid.. 177 Section 2.1, Ibid.. 178 Section 15, Ibid.. 179 Section 2(1), Ibid..
173 Manitoba Report: Abuse of Older Adults Legislation Type of Abuse Public Guardian and Trustee Act, S.S. 1983, c. P­ 36.3. Financial abuse defined as misappropriation of funds, resources or property by fraud, deception or coercion 180 180 Reporting Process (Mandatory or Voluntary) Voluntary
Section 40.5(1)(a), Public Guardian and Trustee Act. Section 40.5(1)(c), Ibid.. 182 Section 40.5(2)(b), Ibid.. 183 Section 40.6(1), Ibid.. 184 Section 40.7(1)(a), Ibid.. 185 Section 40.9(1), Ibid.. 186 Section 51, Ibid..
181 110 Strengths: Outcome and Content Vulnerabilities: Outcome and Content · A vulnerable adult includes older adults who are referred to specifically as those who have “aging process limitation that places the individual at risk of financial abuse” 181
· Gives power to a financial institution to suspend transactions for 5 days on accounts of those suspected as being subject to financial abuse 182 (who must immediately inform the Public Guardian)
· The Public Guardian can ask the financial institution to freeze withdrawal or payment of funds from an account of a person who is suspected of being abused for up to 30 days 183
· Public Guardian can investigate allegations of financial abuse 184
· Can seek a warrant to enter premise to obtain records 185
· Audited annually 186
· Applies to property related matters only Notes Manitoba Report: Abuse of Older Adults Legislation Type of Abuse Victims of Domestic Violence Act, S.S. 1994, c.V­6.02. Harm to physical person or property, forced confinement, sexual abuse. 187 187 Reporting Process (Mandatory or Voluntary) Voluntary 188
111 Strengths: Outcome and Content Vulnerabilities: Outcome and Content · Applies to cohabitants who have resided or are residing together – defined as family members, spouse or intimate partner 189
· Residence refers to either current place or a residence that has been vacated due to domestic violence 190
· Types of protection options include: Emergency intervention order 191 ; victims assistance order 192 ; warrant permitting entry 193
· Victims assistance order has a broad range of remedies that can include any or all options including police officer supervising removal from residence and paying victim for any monetary losses 194
· States than an action under this Act does not limit any other legal recourse/action 195
· Does not deal with financial abuse
· No reference to maintenance
· Cohabitation requirement limits application of Act (e.g., would not apply to grandchild that abuses grandparent in home) Notes Section 2 (d), Victims of Domestic Violence Act. Section 8 (1), Ibid.. Application for order can be made by victim or designated (by regulation) person on behalf of victim. 189 Section 2 (a), Ibid.. 190 Section 2 (g), Ibid.. 191 Sections 3­6, Ibid.. An emergency intervention order may be granted where domestic violence has occurred and because of seriousness or urgency, the order should be made immediately to protect the victim. 192 Section 7, Ibid.. A victim’s assistance order may be granted where domestic violence has occurred. 193 Section 11, Ibid.. 194 Section 7 (1), Ibid.. 195 Section 13, Ibid..
188 Manitoba Elder Abuse Report 112 ABUSE OF OLDER ADULTS and EXISTING LEGISLATION NEW BRUNSWICK Legislation Family Services Act, S.N.B. 1980, c. F­22, Part III. 196 Type of Abuse Reporting Process (Mandatory or Voluntary) Physical, sexual and Voluntary; mental abuse as well professionals are as those in danger of protected from being abused; neglect liability. 197
and self­neglect. 196 Section 34 (1) and (2), Family Services Act.
Strengths: Outcome and Content · Refers to older persons
· Broad definition of “professional person” for purposes of reporting 198
· Broad definition of situations of abuse 199
· Minister can seek warrant to remove offending person from premises 200 where older person resides
· The wishes of the victim is to be considered by Minister 201 before any decision shall be made (in terms of remedies)
· Where abuse, options for Minister include legal recourse and referral to social services 202
· Where security of person in danger 203 , Minister may put person under protective care 204 and is then given 5 days for alternative action 205
· Proscribes preventive intervention through courts when release from care or psychiatric facility where abuse or neglect potential, where no family member to willing to assume responsibility for care and Minister believes is mentally incompetent 206
· Options for Minister where abuse and mentally incompetent adult include: remain in care; removal of person from premises who is causing abuse; protective intervention 207 (order not to exceed 12 months 208
Vulnerabilities: Outcome and Content · No reference to financial abuse
Notes · No definition of competence
· Where adult unable or incapable of expressing wishes Manitoba Report: Abuse of Older Adults Legislation Type of Abuse Infirm Person Act, R.S.N.B. 1973, c.I­8. No definition of abuse 197 Reporting Process (Mandatory or Voluntary) Voluntary. Court has full jurisdiction over affairs of mentally incompetent, including care and commitment 209
Strengths: Outcome and Content · Describes court process for declaration of mental incompetency 210
· Application to supercede order can be made after 1 year by person declared mentally incompetent 211
· Committee for mentally incompetent adult to
113 Vulnerabilities: Outcome and Content · Broad application to all persons resident in NB who are declared Notes Act applies to a mentally incompetent person who requires care, supervision and control for protection of his person or Section 35.1, Ibid., protects professionals who, in good faith, disclose information about a possibly neglected or abused adult to the Minister, including information obtained in their professional capacity. “Professional” is defined in s. 35.1(5). The Act is silent regarding non­professional people reporting suspected cases of abuse or neglect. 198 Section 35.1(5), Ibid.. "professional person" means a worker in any adult day care center or residential or institutional facility, a vocational counsellor or trainer, an educator, a physician, a nurse, dentist or other health or mental health professional, a hospital administrator, a social work administrator, social worker or other social service professional, a police or law enforcement officer, a psychologist, a guidance counsellor or a recreational services administrator or worker and includes any other person who by virtue of his employment or occupation has a responsibility to discharge a duty of care towards an elderly person or a disabled adult. 199 Section 37.1(1), Ibid. states: “ For the purposes of subsection (2), the security of a person may be in danger when: (a) the person is without adequate care or supervision; (b) the person is living in unfit or improper circumstances; (c) the person is in the care of someone who is unable or unwilling to provide adequate care or supervision of the person; (d) the person is in the care of someone whose conduct endangers the life, health or emotional well­being of the person; (e) the person is physically or sexually abused, physically or emotionally neglected, sexually exploited or in danger of such treatment; (f) the person is living in a situation where there is severe domestic violence; (g) the person is in the care of someone who neglects or refuses to provide or obtain proper medical, surgical or other remedial care or treatment necessary for the health or well­being of the person or refuses to permit such care or treatment to be supplied to the person; or (h) the person by his or her behaviour, condition, environment or association, is likely to injure himself or herself or others.” 200 Section 36(1), Ibid.. 201 Section 36.1(1), Ibid.. 202 Section 37(1), Ibid.. 203 Section 37.1(1), Ibid.. 204 Section 37.1 (2), Ibid.. 205 Section 37.1 (4), Ibid.. 206 Sections 37.2 ­ 39 Ibid.. 207 Section 39.1, Ibid.. 208 Section 39(4), Ibid.. 209 Section 3, Infirm Persons Act. 210 Sections 4­8, Ibid... 211 Section 9, Ibid..
Manitoba Report: Abuse of Older Adults file with court within 6 months a true inventory of real and personal property 212
· Provision for power of attorney for personal care 213 . Has the same obligations as a committee of the person, which may include accounting
· Power of attorney may be revoked by donor so long as doesn’t suffer from mental incompetency *New Brunswick: Infirm Person Act continued 212 Section 10, Ibid.. Sections 40­44, Ibid.. 214 Section 1, Ibid.. 215 Section 39(1), Ibid..
213 114 mentally incompetent; but no specific provisions for those who are older persons
· No definition of incapacity
· Act does not define method for revocation of power of attorney
· No positive duty (requirement) to act for power of attorney property 214 . Also applies to mentally competent persons who are unable to manage own affairs due to mental or physical infirmity as a result of disease, age, etc.. 215 Manitoba Report: Abuse of Older Adults Legislation Type of Abuse Mental Health Act, R.S.N.B. 1973,c.M­10. No definition of abuse 216 Section 1(2), Mental Health Act. Section 35, Ibid.. 218 Section 39, Ibid.. 219 Section 2, Ibid.. 220 Section 8, Ibid.. 221 Section 10, Ibid.. 222 Section 1(2), Ibid..
217 Reporting Process (Mandatory or Voluntary) Voluntary.
Strengths: Outcome and Content 115 Vulnerabilities: Outcome and Content · Defines mentally competent 216
· Applies only to psychiatric · Lieutenant Governor can appoint 217
facilities 219
Administrator of Estate · On release, patient examined by psychiatrist · Involuntary admission to see if can administer own estate and permitted 220 , that can cancel certificate of incompetence 218
include apprehension by police officers 221 Notes A person is mentally competent to give or refuse to give consent if the person is able to understand the subject­matter in respect of which consent is requested and able to appreciate the consequences of giving or refusing to give consent, and, if the consent relates to a proposed treatment for the person, the subject­matter is the nature of the person’s illness and the nature of the proposed treatment. 222
· No definition of capacity Manitoba Report: Abuse of Older Adults Legislation Type of Abuse No definition of abuse Nursing Homes Act, S.N.B. 1982, c.N­ 11. 223 Section 13(b), Nursing Homes Act. Section 14(1)(c), Ibid.. 225 Section 10, Ibid.. 226 Section 13(d), Ibid.. 227 Section 14(2), Ibid.. 228 Section 21, Ibid.. 229 Section 25, Ibid.. 230 See section 14(2)(b), Ibid..
224 Reporting Process (Mandatory or Voluntary) Voluntary
116 Strengths: Outcome and Content Vulnerabilities: Outcome and Content Notes · Operator of nursing home shall involve patient in discharge and admission plans 223
· A comprehensive care plan is established 224
· Where nursing home suspected of neglect or abuse of patients, trustee may be appointed with broad powers 225
· Operator to establish and follow regular procedure for hearing concerns of residents 226
· Records are confidential, for purposes only providing care 227 . Records can be released with written request of resident concerned or the written order of the Minister or by court order. In cases of death or incompetence, then at the written request of the patient’s next of kin
· Operator cannot seek additional payments from resident beyond amount established in regulation 228
· Minister may appoint inspectors to enter nursing home to ensure Act is complied with; can apply for Entry Warrant 229
· No application to those living independently No definition of competence, incompetence, capacity or incapacity.
· Reference to incapacity only in terms of release of personal information 230