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FAIRE'S PERSPECTIVES
ON THE
LEGISLATIVE REVIEW COMMITTEE'S REPORT
ON THE
PROTECTION FOR PERSONS IN CARE ACT
RESPECTFULLY SUBMITTED TO THE
HONOURABLE GENE ZWOZDESKY
MINISTER OF COMMUNITY DEVELOPMENT
NOVEMBER 2003
Contact: Bev
McKay
Box
969
Cochrane, AB T4C 1B1
(403)
932-5557
bevmckay@telus.n
Protection for Persons In Care Act Review Submission to the Honourable Gene Zwozdesky
PERSPECTIVES
PART ONE: BACKGROUND
1.
Government Powers Under the Protection for Persons In Care Act (PPCA)
The PPCA gives the Alberta government the power to act as *intake officer, investigator, and
"quasi judge and jury" in cases of alleged abuse and neglect of vulnerable adults in government-
funded care settings, including long-term care facilities. [* receives and screens reports of abuse allegations]
Discussion
In the 2001-2002 fiscal year, two-thirds (66%) of the 542 reports of alleged abuse were dismissed
and only 5.1% of these cases were referred to the police for investigation. However, according to
lawyer/researcher, Charmaine Spencer, over 57% of the reports involved allegations that
potentially held some criminal law elements. The high rate of dismissed cases and the low rate of
referred cases to the police suggest alleged victims in these settings may not be receiving the
protection and benefit of the law. In turn, this suggests the Act may be sufficiently flawed to
violate the victim's rights of equality under the Canadian Charter of Rights and Freedoms.
Canadian Charter of Rights and Freedoms
Section 15:
Every individual is equal before and under the law and has the right to equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
The following examples represent flaws in the Act that, in FAIRE's view, could result in the
unanticipated violation of victims' rights entitlements under the Charter.
i.
Section 8(2) of the PPCA requires the appropriate Minister or the investigator to refer a
complaint to the police, if, in their opinion the complaint could constitute an offence
under the Canada Criminal Code. This raises important questions.
· Should not all alleged abuses be reported to the police by victims, their families
and witnesses to determine which cases constitute a criminal offence?
· If the Minister or the investigator does not have the proper knowledge and expertise
to determine what constitutes a criminal offence, what is the likelihood that the
victim's abuse will be reported to the police?
· If there are no safeguards to ensure that crimes are being recognized at the Ministry
level, and the investigative and facility levels, does this not increase the likelihood
that offences will be overlooked and go unreported to the police?
ii.
Section 5(1) of the Act states: "Every agency shall have the duty to protect the clients it
serves from abuse ..." However, the Act has no mechanism to hold agencies accountable
when they breach their lawful duty. Does this not protect the offending agency from
being sanctioned? And does this not increase the likelihood of re-victimization?
FAIRE's Perspectives November 2003
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Protection for Persons In Care Act Review Submission to the Honourable Gene Zwozdesky
iii.
The Department of Community Development defers allegations of abuse by health care
professionals to their respective bodies for internal investigation and recommendations.
Will this not jeopardize the victim's right to a proper and impartial investigation?
iv.
Under the Act, there is no requirement for contracted investigators to have the skills,
knowledge and expertise required to conduct a proper investigation. Does this not
impinge on the victim's right to an effective investigative and resolution process?
2.
Public Perception
In theory, the Act recognizes residents' right to abuse and neglect protection. However, in
practice (as suggested previously), the Act may function in a way that inadvertently violates
residents' Charter rights of equal protection and benefit of the law. The general public and legal
community have not had the opportunity to engage in discussions and debate about this potential
effect or other rights impingements. As a result, there is a naïve inclination to view and support
the Act as an added protection and benefit, despite the lack of evidence to that effect.
3.
Redundant Mandates
The mandates of government-contracted investigators under the PPCA and government-
appointed investigators under the Health Facilities Review Committee Act are almost identical. In
FAIRE's view, this creates redundancy which suggests an inefficient use of taxpayer dollars.
4.
Restricted Composition of the Review Panel
The appointed review panel consists of three government MLAs and four high profile long term
care owners/operators. In the April 2002 government news release and the Committee's report,
industry representatives are presented as "public" members. FAIRE argues the industry is a
misrepresentation of the "true" public. We also argue that the composition of the panel disregards
the need for:
·
safeguards at the review table to prevent industry and government from using their
positions for their own vested interests and gain;
·
diverse representation, views, experiences and expertise at the review table to ensure
broad debate, constructive dialogue and sound decision-making.
5.
Consultation Sessions
Participants were mainly long-term care owners/operators, regional health authority
representatives and government bureaucrats. Participation by the general public required an
invitation by government. Input was restricted to opinions on areas of the Act predetermined by
the review committee. Participants were not required to substantiate their opinions. No effort was
made to determine consensus. No discourse, dialogue, information sharing, debate was allowed.
In FAIRE's view, the restrictions that dominated these sessions seriously compromised the value,
fairness and credibility of the input derived from these sessions and, ultimately, the Committee's
report.
FAIRE's Perspectives November 2003
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Protection for Persons In Care Act Review Submission to the Honourable Gene Zwozdesky
PART TWO: THE REPORT'S RECOMMENDATIONS
Recommendation 1.1
The PPCA should include a strong statement of guiding principles and objectives to
reflect the educative and preventive nature of the legislation.
The nature of the Act is NOT stated in the legislation. Rather, it has evolved external to the Act
apparently at the Alberta Community Development level. Since the educative-preventative
approach has proven inadequate to deterring or preventing abuse, what is the justification for
recommending that it persist? We also question why the educative and preventive nature of the
Act is recommended over the residents' right to protection and security, and equal access to and
benefit of the law.
Recommendation 2.1
The PPCA should be expanded to apply to all adults in care who receive services from agencies
or bodies that receive funding from the Government of Alberta.
Since the Act has no power to protect persons in care from abuse or to provide victims access to
justice, why subject MORE vulnerable people to its impotence? If a larger population came under
the Act, isn't it likely that MORE victims will be robbed of their right to justice and due process?
Is a greater application of this Act a prudent use of taxpayer dollars? Would Albertans not get
more value for their money if government targeted funding toward:
·
creating specialized detective units and a dedicated court to deal with the issue?
·
expanding the mandate of the provincial ombudsman to include long-term care?
·
establishing/supporting autonomous family councils in long-term care facilities?
·
establishing community initiatives dedicated to tackling elder abuse?
Recommendation 3.1
The definition of abuse should focus on the impact or harm to the alleged victim and the
requirement of "intent" should be removed. Abuse should include actions that have the potential
to cause, or are reasonably likely to cause, serious harm. Abuse should not be defined to
include systemic quality of care issues. [Emphasis added]
i.
Actions or inactions that cause actual or potential harm, or premature death could
constitute a criminal offence. Presumably, these actions would obligate the Minister, the
investigator, the facility, the witness and other informed persons, including families to
refer such allegations to the police. FAIRE suggests that shifting the focus to "harm"
would require a punitive consequence which conflicts with recommendation 1.1.
proposing the Act remain non-punitive ("educative and preventive"). We also suggest the
"harm" criteria is beyond the mandate of Community Development and would obligate
the Alberta government to move the Act under the Ministry of Justice.
ii.
The second part of this recommendation rejects the inclusion of systemic abuse and
neglect in the definition. Systemic abuse and neglect is defined as "harmful situations
FAIRE's Perspectives November 2003
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Protection for Persons In Care Act Review Submission to the Honourable Gene Zwozdesky
iii.
created, permitted or facilitated by procedures and processes within institutions"
[Spencer, C.]. Such harmful situations in Alberta's long-term care facilities are many and
obvious. They include low staff-to-patient ratios; a workforce hampered and stressed by
inadequate skills, knowledge and training, and; ineffective inspection and enforcement
systems. These situations exist because the Alberta government persistently refrains
from addressing them in regulation. As a result, increasing numbers of residents are
paying the price, sometimes with their health and lives. So why was this critical piece
rejected? Given the composition of the review panel, one could reasonably argue the
exclusion is related to self-protecting interests.
It is also important to examine why * neglect and ** the violation of human and civil
rights were omitted from the definition. The exclusion may reflect an oversight in the
review process. It may just as easily represent a lack of effort or will to consider
expanding the definition to include these acts .
[* the failure to meet the needs of a resident unable to meet them herself or himself - Spencer, C.]
[** the denial of an older adult's basic rights (according to the Canadian Charter of Rights and
Freedoms, the United Nations Declaration of Human Rights and the United Nations Declaration
of the Rights of Older Persons" - Spencer, C.]
Recommendation 3.2
The term "alleged abuser" should be defined to include: other clients, health care professionals
and other service providers, employees, contractors, family members, volunteers and any other
third-party individuals. [Emphasis added]
·
Including "other clients" would potentially victimize the very people the Act was meant
to protect. Facilities have an obligation to monitor residents with behavioral problems
and to assess for, and address risk factors that contribute to the occurrence of resident-to-
resident abuse. This recommendation would wrongly allow facilities to abdicate their
responsibility by shifting the "blame' onto persons entrusted to their care.
·
Excluding "the facility" or "owner/operator" in the definition of alleged abuser is cause
for concern and it is important to consider what the reasons are. It could reflect an
oversight in the review process, or a narrow view of what the definition should
encompass. However, it could just as easily represent self-serving motives of the
industry.
FAIRE's Perspectives November 2003
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Protection for Persons In Care Act Review Submission to the Honourable Gene Zwozdesky
Following are brief comments on some of the remaining recommendations.
Recommendation Comments
4.1 proposes "agencies as generally
What is the likelihood of:
conducting initial investigations of
·
alleged abuse .." with government
an impartial investigation?
investigating "only as a last resort
·
the incident being trivialized or swept under the
or in special circumstances."
rug?
·
victims' best interests prevailing over other
interests?
5.4 proposes "agencies, alleged
·
"Notified" how? In writing?
victims and guardians/agents
·
Notification should extend to the family and
should be notified of the
substitute decision-maker.
commencement of investigation
·
Investigations can take place days or weeks after an
and outcomes".
alleged incident. Families of victims should be
notified upon recognizing that abuse may have
occurred.
Discussion (page 13) proposes
·
What is the likelihood that this approach would be
"Participation of witnesses and
tolerated in a court of law?
alleged abusers in the investigation
·
Would this approach not result in automatic and
should remain voluntary. Witnesses
perhaps unwarranted dismissal of the allegation?
and/or alleged abusers should not be · How does this approach serve the best interests of
compelled to provide information
the victim?
during an investigation."
If agencies are authorized to decide the merits of a
"Current legislation provides no
complaint, what is the likelihood of:
discretion to address the merits of
·
individual complaints."
impartial decision-making?
·
the complaint being trivialized or swept under the
rug?
·
the victim's interests prevailing over other
interests?
Discussion relating to
·
If recommendations are oriented toward
recommendation 7.1
"prevention" yet the recommendations are not
"The Committee suggests that
binding on the agency how will abuse be
recommendations arising from
prevented?
investigations should be primarily
oriented to prevention..."
·
Since an investigation results in recommendations
that are not binding on the agency, what is the
"Ministerial approval or rejection of
purpose or value of
recommendations is not binding on
an investigation or indeed, the Act itself?
agencies ..."
·
Since costly investigations result in
recommendations that are not binding on the
agency, what value are taxpayers getting for the
money spent on investigations?
FAIRE's Perspectives November 2003
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Protection for Persons In Care Act Review Submission to the Honourable Gene Zwozdesky
FAIRE's POSITION
From FAIRE's perspective, the Act and the recommendations for reform are sufficiently flawed
to inadvertently jeopardize or violate the victim's right to equal protection and equal benefit of
the law as set out in the Canadian Charter of Rights and Freedoms. We also believe that the
many deficiencies of the Act have rendered it powerless to protect persons in care from abuse and
neglect or victims from being re-victimized. For these reasons, FAIRE does not support the
Protection for Persons In Care Act or the recommendations in the report.
PROPOSAL
FAIRE proposes the Protection for Persons In Care Act be revoked and replaced by legislation
that establishes a Vulnerable Adults Protection Commission. This Commission would be
modeled after the Massachusetts Disabled Persons Protection Commission created in 1987 as an
independent state agency. It was established because crimes committed against persons with
disabilities were not being recognized or reported to the appropriate authorities. We believe the
same can be said of many cases under the PPCA system.
The following highlights some key differences between Alberta's Protection for Persons In Care
Act (PPCA) and the Massachusetts' Disabled Persons Protection Commission (DPPC):
Alberta's PPCA
Massachusetts DPPC
Abuse/neglect allegations are reported to
Abuse/neglect allegations are reported to a
government.
State Police Detective Unit within the
Commission.
The government or the investigator determines
The State Police Detective Unit determines
which cases, in their opinion, constitute
which cases constitute criminal activity
criminal activity.
There is no investigative oversight or
The Commission's Oversight Unit monitors
protective services for victims.
each case. Oversight officers ensure the victim
is safe, the report is timely, the investigation is
thorough, and that protective services are
provided when abuse is substantiated. To
confirm that necessary protective services are
implemented, Oversight Officers monitor cases
until all risk of harm to the victim is
eliminated.
There is no indication that the government's
Information in the Commission's database is
database is analyzed for these purposes.
analyzed continually in an effort to identify
potential preventative measures to be
implemented and/or systemic challenges
needing attention.
There is no provision in the Act to receive and
The Commission receives and screens reports
screen reports of deaths of persons in
of all deaths, when an individual has died while
government-funded care settings.
in the care of a state or private service provider.
FAIRE's Perspectives November 2003
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Protection for Persons In Care Act Review Submission to the Honourable Gene Zwozdesky
CONCLUSION
FAIRE encourages the Minister of Community Development to look upon this submission as an
opportunity to analyze the PPCA and the Committee's recommendations from a broader
perspective. We also recommend that future deliberations and decision-making concerning the
protection of Alberta's citizens in care be based on the principles set out in the Canadian Charter
of Rights and Freedoms, the United Nations Declaration of Human Rights and the United
Nations Declaration of the Rights of Older Persons. At this time, we wish to thank the
Honourable Minister for inviting our comments and perspectives on the report by the Legislative
Review Committee.
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