October 23, 2004

The Honourable Mr. Gene Zwozdesky
Minister of Community Development
Alberta Legislature Building
Edmonton AB T5K 2B6

Dear Mr. Minister:

Further to our correspondence of January 2, 2001 concerning this matter, our meeting of October 30, 2003, and further correspondence of November 12, 2003. We again appeal to you to include the noted amendments to the said legislation.

Re: Section 1, the following should be added and state by definition the following:

Abuse defined as:
Subsection i. an act of physical mistreatment or injury which harms or threatens a person through action or inaction by another individual. Excessive or inappropriate use of physical or chemical restraints

Subsection ii. violation of personal rights – including but not limited to any deprivation of a person’s right to choose, to privacy, to make decisions. Lack of freedom to keep personal items around the room, the absence of a lockable drawer or closet (if requested) to keep personal items.

– psychosocial intimidation – instilling the fear or denial of care/ and or abandonment, or of violence, a spontaneous or systemic effort to intimidate or dehumanize thus diminishing the vulnerable person’s sense of dignity and self worth.
a. denying persons in care access to visitors such as family members, friends or advocates

b. failure to maintain a written Protocol concerning any imposed restriction of visitors by the institution. If anyone/ institution/guardian restricts visitation, a Report outlining reasons should be prepared and sent to a government agency with copy to restricted visitor/s.

C. failure to provide social and emotional support, necessary to maintain reasonable mental health.

Subsection iii.
-Excessive or inappropriate use of chemicals (medications), use of chemicals as a restraint.

Subsection v.
-Failure to use the monies and assets of the person in care, by the guardian or trustee, in order to ameliorate their needs and for their welfare, care and comfort.

– failure to maintain a comfort fund for the person in care at their care facility.

theft –
a. act of stealing, unlawful taking of the belongings of the person who is in care.

b.. failure to maintain an appropriate Protocol for addressing the matter of “missing” items such as clothing, money or personal items.

“neglect” –
– a pattern of conduct resulting in deprivation of care necessary to maintain minimum physical and mental health such as:
– failure to provide or facilitate adequate nursing care, nursing assistance and or physic-therapy resulting in weight loss, deadly bedsores, over medication, positional deformities and other neglect.

– failure to provide an appropriate physical environment that fosters positive mental and physical health.

Subsection (c) “client” – page 2
means a vulnerable adult who has some functional, mental or physical inability to care for himself / herself therefore requiring services by an agency.

Under Section 1 (b)
We recommend that the Act must include as possible abuser, the guardian, the trustee, family members or anyone who interacts with or has a duty of care to the vulnerable person who is in care.

We recommend that the Act must be crafted in order to provide protection to all vulnerable Albertans who are in care, inclusive of persons living in privately owned facilities.

We recommend that all received complaints be recorded, whether verbal, written or faxed – verbal complaints be recorded, similar to a 911 call.

(Presently, a complainant must repeat their complaint three times. First to the person who attends the abuse line, then again to a person who reviews the complaint and then to the investigator. This is extremely distressing in a situation where the complainant is already distressed by the abuse and must repeat and repeat).

We recommend stronger wording as follows, in place of Section 4, subsections (1), (2) & (3) concerning protection of the complainant. Complainants have been and continue to be harassed, intimidated, staff have lost their jobs and on occasion been sued for thousands of dollars or have incurred costs.

(a). A person participating in good faith in the making of a report pursuant to this Act or testifying as to alleged patient abuse or neglect in a judicial proceeding shall in so doing be immune from any liability, civil or criminal, arising out of such reporting or testifying under any law of this province or its political subdivisions. No action for defamation may be founded on a communication that consists of or pertains to a complaint, notification or disclosure regarding the neglect or abuse of a vulnerable person

(b) If the complainant is an employee of a facility within the Province of Alberta which gives care and services to vulnerable persons, it shall be an unfair practice under this act to dismiss the said employee for such activity. Nor shall they be subjected to suspension, transfer, altered assignment, demotion, reduction in pay or benefits or work privileges, negative work performance evaluation, denial or withholding of benefits or services, or any other detrimental action because of the report.

(c) Conduct conforming with the reporting requirements of this Act shall not be deemed a violation of the signing of a “confidential oath” which may be a requirement for employment in facilities which give care to vulnerable persons.

(d) Complainants who are persons in care, shall not be subject to alteration, interruption or discontinuance of services to which they are normally entitled, because of a report of abuse or neglect.

(e) Complainants are entitled to the right to privacy from interaction with or interference from the alleged abuser.

Re: Section 6(1), We recommend that complaints should be investigated within a defined time limit, depending on the nature of the complaint) rather than, “as soon as possible”. The Complainant shall be promptly informed of the investigating Bureau’s proposed course of action. The investigator shall prepare a report of the investigation within 10 days of receipt of the complaint and every 10 days thereafter until the investigation is complete.

We recommend that the investigative Bureau when receiving a report of an incident of a person in care who has deceased or who has had physical injury or injuries inflicted other than by natural means, or who has suffered severe neglect, shall be immediately directed to a specially trained unit within a law enforcement agency for investigation and immediate appropriate action which may be needed to stop the continuation of the abuse.

We recommend that not only must the abuser be held accountable and disciplined for his/her actions, but the care facility and its officers must be held accountable for the care performance within the facility. Therefore every care facility licensee, or any partner, officer, director, owner of 5% or more of the assets of the care facility, administrator or managing employee, should be held accountable and penalized for both intentional and reckless behavior committed by service provider personnel within its premises.

We recommend that Section 7 of the Act be rewritten to reflect the following: The investigating bureau must be able to investigate at any hour and demand immediate access to all financial and medical records. Failure to grant access to a facility or the withholding of documents should be deemed an offense. Hourly penalties shall be imposed for denial of access or the withholding of documents.
Presently, the investigator is unable to access medical or financial records, without permission, which results in anecdotic, hearsay reporting.

Some persons in care do not have a guardian nor are they able to give permission to access documents. Furthermore, in our experience, Application to the Court for entry to a care facility or access to documents as recommended by the Act, does not necessarily guarantee production of records.

We recommend that Section 7, subsection (5) be deleted.

We recommend that the Act must state proposed penalties such as fines, suspensions of licenses, jail terms.

We recommend annual, published reports, listing all abusing licensees by name and address, indicating –

(1) the number of offences and the nature of each charge issued to each licensee during the previous twelve month period and the status of any action taken pursuant to each violation, including penalties assessed, and

(2) the number of actions, nature, status and action taken with respect to each uncorrected violation for which there is an outstanding charge.

(3). the report shall be available to the public.

(4) the names of duly authorized officers, employees or agents of the Bureau shall also be deemed public.

Presently, investigations are carried out by “contract” persons, many have no health care background. Because the investigator is on contract, he is not a government employee and therefore cannot be held to accountability or even held accountable by the Office of the Ombudsman. Thus any decision or lack of decision on their part cannot be investigated or appealed.

We recommend that the Act be renamed VULNERABLE PERSONS PROTECTION ACT because of the present proliferation of private foster care homes for the frail elderly and vulnerable persons. These homes do not necessarily require a license and therefore extremely vulnerable persons are unprotected.

The Quarterly Report of the Protection For Persons in Care Act, April 1/00 to June 30/00, articulates an interpretation concerning the matter of intent, which we find unacceptable .

We continue to recommend that the Act be totally enforceable.

We continue to recommend a policy of ZERO TOLERANCE regarding elder abuse.

We continue to recommend an Alberta wide Registry which lists abusers. We would like to see this Registry become a Canada wide Registry.

We are persons who work at a grassroots level and understand the need for strong, protective legislation. We ask that we will be consulted when changes are being initiated. If this legislation has been made in good faith, then the legislation will be amended to make it effective and enforceable in order to protect the vulnerable citizens of our province.

Elder Advocates of Alberta

Tags: Adult Guardianship and Trusteeship Act, Gene Zwozdesky, Protection for Persons in Care Act