Senior abuse: What can Ontario learn from other provinces?

Seniors – defined as those aged 65 and over – currently make up approximately 15 per cent of the population; it is projected that by 2036 that percentage will have increased to approximately one quarter of the population.¹ As the number of seniors in Canada continues to rise, so too do concerns about abuse of older adults, whether that abuse be physical, psychological, or financial.

Across Canada, provinces have implemented legislation of various types in an attempt to address the abuse or neglect of older adults. In Ontario, that legislation takes two forms:

• Institutional abuse legislation that deals specifically with abuse occurring in an institutional setting, such as care homes or retirement homes, and provides for mandatory reporting of any suspected abuse.²

• The Substitute Decisions Act, 1992³, which provides adult protection provisions within guardianship legislation, creating a duty for the Public Guardian and Trustee to investigate where persons are alleged to be incapable and may suffer adverse effects to their person (s. 62) or property (s. 27). The PGT has an obligation to apply for an order appointing him or her as temporary guardian, should the investigation reveal the older person is incapable of managing property or personal care.

Legislative amendments have recently been proposed in Ontario that would impose a mandatory reporting requirement on all professionals who work with seniors, whether they live in the community or in institutions. Bill 148, Protection of Vulnerable Seniors in the Community Act, 2015, a private member’s bill, seeks to amend the SDA to require regulated health professionals to report any reasonable suspicion that a senior is being abused or neglected. That Bill passed second reading at the Legislative Assembly earlier this month, and has been referred to the Standing Committee on Social Policy for review.

Under the proposed amendments, health professionals would be required to report suspected abuse to a law enforcement officer, the Public Guardian and Trustee, or another prescribed person. Bill 148 enforces the obligation to report by making it an act of professional misconduct for any health professional to fail to do so. At the same time, the Bill provides protection for such professionals who report by stipulating that no proceeding may be commenced against a health professional for making a report in good faith.

The proposed amendments to the Ontario model would bring it closer to the model employed in many Atlantic Provinces⁴, where abuse concerns are addressed through focused adult protection legislation similar to child protection legislation such as Ontario’s Child and Family Services Act.⁵

In light of the current prevalence of senior abuse, many argue that mandatory reporting is a necessary step. The following alarming statistics were presented by MPP Soo Wong, who introduced Bill 148, and other members who spoke in support it at the second reading:⁶

• Between 40,000 and 200,000 seniors living in Ontario have experienced or are experiencing elder abuse.⁷
• Elder abuse reoccurs in up to 80 per cent of the cases.⁸
• Approximately 43 per cent of perpetrators are the senior’s adult child.⁹
• The second most likely family member identified as a perpetrator is the individual’s spouse.¹⁰

However, not all stakeholders support these amendments, or Ontario’s approach to senior abuse in general, in which abuse concerns are addressed in the context of guardianship legislation.

The Law Commission of Ontario suggests that while protection regimes offer a foot in the door to agencies that may be able to assist, they do so at the expense of the older individual’s autonomy. Any mandatory intervention in the lives of older adults capable of unassisted decision-making risks leading to worse rather than better outcomes.¹¹

The Advocacy Centre for the Elderly similarly notes that mandatory reporting risks infantilizing older adults “without providing anything constructive in the way of rights or resources that might assist them in overcoming neglect and abuse.”¹²

Mandatory reporting also does not address the root causes and contributors to abuse of older adults, which are varied and extensive. For example, the Ontario Human Rights Commission considers the following as just some of the contributing factors:

• ageism and a general negative attitude toward seniors
• a lack of services in the community
• a lack of available long-term care beds and available, affordable and accessible housing
• the economic and social vulnerability of older persons
• a lack of emergency shelters for older people seeking to escape an abusive situation
• caregiver burn-out or significant stress. This can include professional caregivers who are overworked, and family members who provide care without adequate community or government supports.¹³

The Commission notes that outreach programs that provide information and support to seniors might be equally effective as, and less intrusive than, mandatory reporting.¹⁴

In light of these concerns, Ontario might be better served by adopting the approach used in British Columbia’s Adult Guardianship Act¹⁵, which ACE terms a “hybrid” approach. It provides for intervention in the case of abuse or neglect, as an alternative to court-ordered guardianship, and therefore provides support without the need to remove an adult’s autonomy.¹⁶

If Bill 148 does become law, in whatever amended form emerges from the review process, it will likely be at best a partial solution to the problem of senior abuse.

Laura Cardiff is an associate at Whaley Estate Litigation

End Notes

1. Andrea Taylor-Butts, Family Violence in Canada: A Statistical Profile, 2013 (Statistics Canada, Canadian Centre for Justice Statistics, 2015).
2. The Long-Term Care Homes Act, 2007, S.O. 2007, c. 8, and the Retirement Homes Act, S.O. 2010, c. 11, both contain mandatory reporting provisions.
3. S.O. 1992, c. 30.
4. See, for example, Newfoundland’s Neglected Adults Welfare Act, R.S.N.L. 1990, c. N.3, s.2., and Nova Scotia’s Adult Protection Act, R.S.N.S. 1989, c. 2, s. 3.
5. R.S.O. 1990, c. C.11.
6. Hansard transcripts, Legislative Assembly of Ontario, Thursday December 10, 2015.
7. Elder Abuse Ontario, “What is Elder Abuse”, http://www.elderabuseontario.com/what-is-elder-abuse/.
8. Ibid.
9. Andrea Taylor-Butts, Family violence in Canada, supra.
10. Ibid.
11. Law Commission of Ontario, A Framework for the Law as it Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (Toronto: April 2012), pp. 104-105, citing in part Manitoba Law Reform Commission, Adult Protection and Elder Abuse (Winnipeg: 1999), p. 23
12. Advocacy Centre for the Elderly, Submission to the Law Commission of Ontario Concerning the Law as it Affects Older Adults (Toronto: July, 2008), p. 10.
13. Ontario Human Rights Commission, Time For Action: Advancing the Rights of Older Persons in Ontario (Toronto: June 2001), pp. 69-70.
14. Ibid. at p. 70.
15. R.S.B.C., c. 6.
16. Advocacy Centre for the Elderly, Submission to the Law Commission of Ontario, supra, p. 9.