Examining the duty to protect in retirement homes and long term care facilities
In Ontario, the Retirement Homes Act, 2010 and the Long-Term Care Homes Act, 2007 require retirement homes and long-term care facilities to protect their residents from abuse by anyone, and from neglect by the home and its staff. These statutory duties to protect residents include the obligation for homes to investigate and respond to alleged, suspected or witnessed incidents of abuse and neglect of residents.
Failure by a home to comply with its duty to protect residents can carry serious consequences, including the revocation of the home's license to operate. Accordingly, it is imperative for homes to conduct thorough and timely investigations, and to appropriately respond to incidents of resident abuse and neglect. The steps to properly investigating and responding to alleged incidents of resident abuse and neglect include the following:
- Conduct a timely and thorough investigation. Investigations into allegations of resident abuse and neglect must be immediately commenced. Delay in commencing an investigation can lead to problems including faded memories, physical injuries which have healed, or documents that have been lost or destroyed. Therefore, it is essential for homes to allocate an adequate number of management staff to gather and review evidence quickly and thoroughly, or to hire an external investigator to promptly complete the investigation.
- Notify the resident's substitute decision-maker (SDM). Homes must ensure that a SDM, if any, and any other person specified by the resident is notified upon the home becoming aware of an alleged incident of abuse or neglect. If the incident has resulted in physical injury, pain or distress to the resident that could potentially be detrimental to his or her health or well-being, the notification must be immediate. In all other cases, the legislation requires notification within 12 hours.
- Notify police. If a home suspects that an incident of abuse or neglect of a resident may constitute a criminal offence, the appropriate police force must be immediately notified. Incidents which require a home to immediately notify police include allegations of physical abuse, sexual assault, uttering threats, unlawful confinement, failing to provide the necessaries of life, fraud, forgery and theft.
- Provide interventions for the resident. Assistance and support are to be provided by the home to a resident who has been allegedly abused or neglected. For instance, the resident's physical and emotional condition should be immediately assessed by health professionals on staff at the home, and any necessary medical treatment must be provided and documented. If the resident is mentally capable and consents (or consent is obtained from the resident's SDM), any physical injuries should be photographed by the home. As well, if the resident is capable, he or she should be promptly interviewed by investigators and a signed statement describing the incident should be obtained from the resident.
- Report the incident to regulators. The RHA and the LTCHA contain provisions for the mandatory reporting of certain incidents. Homes must immediately report to the Retirement Homes Regulatory Authority or the Ministry of Health and Long-Term Care if they have reasonable grounds to suspect improper or incompetent treatment or care of a resident, abuse of a resident by anyone or neglect of a resident by the home or its staff, unlawful conduct that resulted in harm or a risk of harm to a resident, or misuse or misappropriation of a resident's money. If the abuser is a regulated health professional, homes are required to make a report to the abuser's professional college.
- Provide interventions to abusers. An appropriate response to an incident of resident abuse or neglect also requires homes to provide interventions to deal with persons who have abused or neglected residents. Such interventions could include steps to discharge a violent resident from the home, terminating the employment or otherwise disciplining an abusive staff member, or restricting or prohibiting visitations by abusive family members and friends of the resident.
- Report on the investigation and outcome. A report and/or record of the incident must also be maintained by the home. In the case of long-term care homes, the report must be filed with the Ministry and is required to include a detailed description of the incident, all individuals involved, actions taken in response to the incident, and the home's analysis and follow-up action. A preliminary report must be filed within 10 days of the home becoming aware of the incident, and a final report submitted as specified by the Ministry. As well, homes are required to ensure that the resident and the resident's SDM are notified of the results of the investigation immediately upon its completion.
Failure by a home or its staff to protect residents from abuse and neglect, and to promptly and properly report such incidents is an offence punishable by substantial fines and/or imprisonment. Therefore, homes are well advised to familiarize themselves with their statutory duties and to seek advice as necessary.
Originally published in The Lawyers Weekly, February 13, 2015.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.