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Elder Abuse or Criminal Negligence?

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A Critical Review of the Scalding of Jenny Nelson

The week long Fatality Inquiry of November 28/05, was presided over by a Provincial Court Judge and seven lawyers. The lawyers represented Alberta Justice, the Nelson Family, the Jubilee Lodge Nursing Home and the Capital Health Authority. Though a Fatality Inquiry does not assign blame, the hearing provided a valuable, though disturbing, window into the attitudes, policies, and behaviors of staff in a long-term care setting.

According to the testimony of a Personnel Care Aide (P.C.A.), on the morning of January 2nd, 2004, she filled the Century tub in the Alzheimer unit with the hottest water available. That the water was hot was attested to by a service man who had been called some days after the incident, to test the temperature of the bath water. He found that the water was so hot, that he had to quickly withdraw his hand. He found it to be over 55 degrees Celsius.

A second P.C.A. brought Mrs. Nelson, who was scheduled for a bath, to the tub room. She placed her in a lift, and began lowering her into the water. Apparently, Mrs. Nelson immediately began to writhe and move her mouth upand down. Nevertheless, the P.C.A. stated that she continued to lower her into the water. During the hearing, she was asked if she had tested the water with her arm. She stated that she was busy. She also stated to the court “I never thought to test the water”. Although, when she was queried about her training and the extent of her training, she responded that she had been taught to test bath water with her arm and wrist prior to bathing an individual.

Because the patient had passed stool, probably because of the shock of the hot water, the PCA proceeded to drain the tub. She then began to refill the tub and while the tub was refilling, she proceed to wash Mrs. Nelson, front and back with a small white towel.

The PCA noticed redness on Mrs Nelson’s abdomen, skin peeling from her legs, and blood oozing from a toenail which was dripping into the water. At this point, she did not call a registered nurse (R.N), but called the other 14 year PCA employee who had filled the tub. They removed Mrs. Nelson from the tub and the lift and placed her in the wheelchair. An R.N. was called, who instructed the P.C.A’s to take Mrs. Nelson to her room and place her on her bed. Another R.N. present, called for wet towels to be placed on Mrs. NelsonOs legs, because sterile dressings were not available. Jennie Nelson died nine days after this incident.

Burns are immediate, intense, the pain is immediate and the resulting blisters, skin peeling and bleeding would have been immediate. She would have undoubtedly lapsed into periods of unconsciousness or semi-consciousness, due to the intense pain.

A physician was notified who ordered Tylenol but did not attend at the care facility. After an hour, she was however administered morphine, and after close to two hours, an ambulance was called to take her to the University hospital where she died nine days later. The Ambulance Report stated that Mrs Nelson was “flailing wildly” (even after having been administered morphine).

During the hearing, there was conflicting testimony in regard to the temperature gauges, as to whether they were functioning properly, or whether the P.C.A. had been instructed how to use them. As a matter of fact, throughout the hearing, there was much contradictory evidence, but because this was a fatality inquiry, and not a trial, witnesses could not be cross-examined as to the veracity of their testimony. On a number of occasions, lawyers who were acting for the Jubilee Nursing Home, challenged the familyOs lawyer, in regard to the manner of questioning.

Lawyers spent considerable time questioning staff in regard to the training of staff. Was the injury the result of untrained staff? In fact, every one of the participants of that horrific happening on the morning of January 2nd, 2004, had more more than adequate education and training.

  • The physician, who was notified of the injury, had many years of professional education and training.
  • The registered nurses, who disregarded the agony of the injured elder, and who failed to immediately call an ambulance to send her to an acute care centre, had years of professional training.
  • The Personnel Care Aid had 18 weeks of training, which should be more then adequate for a conscientious worker who gives custodial care. It should have equipped her to give the very basic care, feeding, dressing, bathing, a kind of care that mothers, often individuals with little or no education, have been giving their progeny or elderly parents throughout the generations.

As evident at the John Dach Fatality Inquiry of January 2005, if there is a non-resuscitation order on the resident’s file, it is policy at the Jubilee Lodge Nursing Home (and most elder care facilities), to not send an elderly person to hospital for care no matter how horrific the injury or how intensely the person is suffering. The person is left to die.

Was there intention to give ethical nursing care and comfort to this severely injured and suffering woman?

  1. The physician had been informed in of the critical condition of Mrs Nelson but because he was occupied seeing office clients he failed to come to the aid of the severely injured, writhing, flailing Mrs Nelson.
  2. Professional nurses did nothing more than place unsterilized towels on open wounds.
  3. The PCA called another PCA, the PCA who had filled the tub with the hottest water possible, rather than the professional, charge nurse.

This Fatality inquiry has left us with many unanswered questions. We will continue to ask these questions in the coming weeks and months, even as we did two years ago, when we brought this issue forward. To date no one has been held accountable, no one has lost a job, the facility has not been fined or disciplined and the criminal code has not been applied.

Finally, in this disturbing account of Jenny Nelson, it again becomes apparent that this victim has not received justice. This is indeed a complex issue that desperately cries out for needed reform. The manner in which this crime was investigated or failed to be investigated, tells you that the victim was a vulnerable, handicapped person. The police were not called. The government investigator, the Protection For Persons in Care investigator, recommended that the police not be involved.

When a person who is not elderly, vulnerable, or does not have disabilities, is physically or sexually assaulted, the assault is classified as a “crime”. The police are called, the crown prosecutor prosecutes, and the perpetrator is sent to prison or given other punishment. However, when a frail, dependent, elderly person or handicapped person, is physically or sexually assaulted, we classify the assault as “abuse”. Instead of a police investigation, the care provider organization itself,a social service organization, a licensing agency, or some other administrative body investigates the matter. The result may be an administrated remedy such as the firing of the alleged perpetrator. In the Jenny Nelson matter, there were no remedies whatsoever. No one was held accountable. One of the participants was given a signifigant promotion.

In Alberta and across the country there is no intent to afford vulnerable crime victims, justice. Alberta legislation, some of which has been enacted for over thirty years, the Health Facilities Review Committee act, the Ombudsman Act, the Fatality Inquiries Act and the non-punitive, non-inclusive Protection For Persons In Care Act, clearly demonstrates this.

This failure trivializes crime against vulnerable, elderly and all vulnerable persons and encourages perpetrators to target this population because they believe, and rightly so, that there is little or no chance that they will in any way be held accountable let alone arrested, tried, or convicted.

We must address this and demand change so that elderly crime victims receive equal justice.

Jenny Nelson was a victim of a callous, dispassionate and unjust care system. It is time that crime victims such as Jenny Nelson receive justice.