Bill 230, Adult Protection Act, 2002

Versions

Bill 230 2002

An Act to protect adults
from abuse and neglect

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Definitions

1. In this Act,

"adult" means a person who has reached the age of 18 years and, in the absence of positive evidence of age, means a person who apparently has reached that age; ("adulte")

"appeal court" means,

(a) the Superior Court of Justice, in the case of an appeal from an order of the Ontario Court of Justice, or

(b) the Divisional Court, in the case of an appeal from an order of the Family Court of the Superior Court of Justice; ("tribunal d'appel")

"court" means the Ontario Court of Justice or the Family Court of the Superior Court of Justice; ("tribunal")

"Director" means the Director of the Adult Protection Office appointed under section 3; ("directeur")

"Minister" means the Attorney General or such other member of the Executive Council as may be assigned the administration of this Act under the Executive Council Act; ("ministre")

"regulations" means the regulations made under this Act. ("règlements")

Administration of Act

2. The Minister is responsible for the administration and enforcement of this Act and the regulations.

Director of Adult Protection Office

3. (1) There shall be a Director of the Adult Protection Office who shall be appointed by the Lieutenant Governor in Council.

Employees

(2) Employees of the Adult Protection Office may be appointed under the Public Service Act.

Adult protection workers

4. (1) The Director may appoint employees of the Adult Protection Office as adult protection workers for the purposes of this Act.

Powers

(2) An adult protection worker may act for the Director and in his or her name.

Functions of Director

5. (1) The functions of the Director are to perform the duties imposed on him or her under this or any other Act and the duties assigned to him or her from time to time by the Minister.

Prescribed rules

(2) In performing his or her duties, the Director shall comply with the rules and standards prescribed by the regulations and shall follow the procedures and practices prescribed by the regulations.

Protection from personal liability

6. (1) No proceeding shall be instituted against the Director or an employee of the Adult Protection Office for an act done in good faith in the execution or intended execution of the person's duty or authority or for an alleged neglect or default in the execution in good faith of the person's duty or authority.

Crown not relieved of liability

(2) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (1) does not relieve the Crown of liability in respect of a tort committed by a person mentioned in subsection (1) to which it would otherwise be subject.

Abused adult

7. (1) An adult is an abused adult if he or she,

(a) is a victim of abuse in the premises where he or she resides;

(b) is incapable of protecting himself or herself from the abuse by reason of physical or mental disability or infirmity; and

Definitions

(2) In this section,

"abuse" means one or more of,

(a) physical abuse,

(b) sexual abuse,

(d) medication abuse,

(e) financial abuse, or

(f) abuse of the person's rights and freedoms; ("mauvais traitements")

"abuse of the person's rights and freedoms" means denial of rights and freedoms normally enjoyed by an adult and includes denying the person the right to engage in religious worship, preventing the person from spending his or her savings and preventing the person from seeing friends or relatives; ("violation des droits et libertés de la personne")

"emotional abuse" means infliction of anguish or distress by verbal or non-verbal means, including treating the person like a child, constantly criticizing or belittling the person, locking the person in a room and threatening to put the person in an institution; ("mauvais traitements d'ordre affectif")

"financial abuse" means illegal or improper use of the person's funds, property or assets; ("exploitation financière")

"medication abuse" means misuse of the person's medications and prescriptions, including withholding medication and over-medicating; ("usage préjudiciable de médicaments")

"physical abuse" means use of physical force that could result in bodily injury, physical pain or physical impairment, including punching, slapping, using physical restraint that is not authorized by law and scalding with hot water; ("mauvais traitements d'ordre physique")

"sexual abuse" means non-consensual sexual contact of any kind. ("mauvais traitements d'ordre sexuel")

Neglected adult

8. An adult is a neglected adult if he or she,

(a) is not receiving proper care and attention in the premises where he or she resides;

(b) is incapable of caring properly for himself or herself by reason of physical or mental disability or infirmity; and

Adult in need of protection

9. An adult is in need of protection if he or she is an abused adult or a neglected adult.

Duty to report adult in need of protection

10. (1) Despite the provisions of any other Act, a person who has reasonable grounds to suspect that an adult is in need of protection shall report forthwith the suspicion and the information on which it is based to the Director.

Ongoing duty to report

(2) A person who has additional reasonable grounds to suspect that an adult is in need of protection shall make a further report under subsection (1), even if he or she has made previous reports with respect to the same adult.

Person must report directly

(3) A person who has a duty to report under subsection (1) or (2) shall make the report directly to the Director and shall not rely on any other person to report on his or her behalf.

Offence

(4) A person is guilty of an offence if,

(a) he or she contravenes subsection (1) or (2) by not reporting a suspicion; and

(b) the information on which the suspicion was based was obtained in the course of his or her professional or official duties.

Same

(5) A director, officer or employee of a corporation who authorizes, permits or concurs in the commission of an offence under subsection (4) by an employee of the corporation is guilty of an offence.

Penalty

(6) A person convicted of an offence under subsection (4) or (5) is liable to a fine of not more than $1,000.

Section overrides privilege

(7) This section applies even if the information reported may be confidential or privileged.

Exception: solicitor-client privilege

(8) Nothing in this section abrogates any privilege that may exist between a solicitor and his or her client.

No proceeding

(9) No proceeding for making the report shall be instituted against a person who makes a report referred to in this section unless the person acts maliciously or without reasonable grounds for the suspicion.

Inquiry and investigation by Director

11. If the Director receives a report of a suspicion that an adult is in need of protection,

(a) the Director shall make inquiries with respect to the matter; and

(b) if the Director finds that there are reasonable grounds to suspect that the adult is in need of protection, the Director shall cause an investigation to be made and, if the Director considers it advisable, may as part of the investigation request a member of the College of Physicians and Surgeons of Ontario to assess and report on the physical and mental condition of the adult and the care and attention he or she is receiving.

Refusal to co-operate with investigation

12. (1) If the adult, a member of the adult's family or the person having the care or control of the adult refuses to co-operate with the Director in having an adequate investigation conducted, the Director may apply to the court for an order authorizing any person named in the order to enter, by force if necessary, a building or other place specified in the order for the purpose of conducting the investigation.

Court order for entry

(2) If, at least four days before the date set for the hearing of the application, the Director gives notice of the time and place of the hearing to the adult and to the person having the care or control of the adult or if the Director has not given notice but the court finds that there are reasonable grounds to suspect that the adult is in danger, the court may make the order if it finds, after making due inquiry, that,

(a) the adult, a member of the adult's family or the person having care or control of the adult has refused to co-operate with the Director in having an adequate investigation conducted; and

(b) there are reasonable grounds to suspect that the adult is in need of protection.

Assistance

13. If the Director is satisfied, on completing the investigation, that the adult is in need of protection, the Director shall assist the adult, if the adult is willing to accept the assistance, in obtaining services, moving to other premises the Director considers suitable or taking other actions that will provide the adult with protection from abuse, with proper care and attention or with both.

Order declaring adult in need of protection

14. (1) If the Director is satisfied, on completing the investigation, that the adult is in need of protection, the Director may apply to the court for an order which declares that the adult is in need of protection and does one or more of the following:

1. Authorizes the Director to provide the adult with services, move the adult to other premises the Director considers suitable, or take other actions that will provide the adult with protection from abuse, with proper care and attention or with both.

2. Requires a person who has abused the adult to stop residing at the premises where the adult resides, unless that person is the owner or lessee of the premises.

3. Prohibits or limits a person who has abused the adult from contact or association with the adult.

4. Requires a person who has a legal obligation to do so, to pay for or contribute toward the maintenance and support of the adult.

Notice

(2) At least 10 days before the date set for the hearing of an application under subsection (1), the Director shall give notice of the time and place of the hearing to the adult, to the person having the care or control of the adult and to all other persons against whom the order is sought.

Powers of court

(3) If, after hearing the application, the court finds that the adult is in need of protection and that either the adult is not mentally capable of deciding whether or not to accept the Director's assistance or is refusing the Director's assistance by reason of duress, the court may, if it considers it to be in the best interests of the adult, make an order which declares that the adult is in need of protection and does one or more of the things set out in subsection (1) or any other thing that the court considers appropriate in the circumstances.

Notice to Public Guardian and Trustee

(4) The court that makes an order under subsection (3) may advise the Public Guardian and Trustee of the order.

Expiry of order

(5) An order made under subsection (3) expires on the 180th day after its date.

Variation, renewal or termination

(6) An application to vary, renew or terminate an order made under subsection (3) may be made to the court by the Director, by the adult or an interested person on his or her behalf or by a person against whom the order was made, no earlier than the 90th day after the date of the order.

Notice

(7) At least 10 days before the date set for the hearing of an application under subsection (6), the applicant shall give notice of the time and place of the hearing to the affected parties.

Factor to be considered

(8) The court may vary, renew or terminate the order if it is satisfied that doing so is in the best interests of the adult.

Expiry of renewal order

(9) A renewal order expires on the 180th day after its date.

Offence

(10) A person who violates an order made under paragraph 2, 3 or 4 of subsection (1) is guilty of an offence and, on conviction, is liable to a fine of not more than $1,000 or imprisonment for not more than one year, or both.

Appeal

15. (1) An order made under section 14 may be appealed to the appeal court by the Director, by the adult or an interested person on his or her behalf or by a person against whom the order was made.

Further evidence

(2) The appeal court may receive further evidence relating to events after the appealed order.

Powers of appeal court

(3) After hearing the appeal, the appeal court may,

(a) affirm the appealed order, with or without variations;

(b) rescind the appealed order;

(d) substitute another order authorized by this Act.

Assistance by police officer

16. At the request of a person acting under an order made under this Act, a police officer shall assist the person in carrying out the order or the authority given by the order.

Regulations

17. The Lieutenant Governor in Council may make regulations prescribing the rules, standards, procedures and practices for the purpose of subsection 5 (2).

Commencement

18. This Act comes into force on the day it receives Royal Assent.

Short title

19. The short title of this Act is the Adult Protection Act, 2002.

EXPLANATORY NOTE

The Bill provides for the appointment of the Director of the Adult Protection Office to provide protection for abused and neglected adults who are unable to protect themselves from abuse or neglect due to physical or mental disability or infirmity.

The Bill provides for mandatory reporting of adult abuse or neglect to the Director of the Adult Protection Office and requires the Director to make inquiries with respect to all such reports. If the Director finds that there are reasonable grounds to suspect that the adult who is the subject of the report is in need of protection, the Director must cause an investigation to be made. The Director may apply to the court for an order authorizing entry to premises for the purpose of conducting the investigation. If, after the investigation, the Director is satisfied that the adult is in need of protection and if the adult is willing to accept assistance, the Director is required to assist the adult in obtaining services, moving to other premises the Director considers suitable or taking other actions that will provide the adult with protection from abuse and with proper care and attention.

If the adult is not mentally capable of deciding whether or not to accept the Director's assistance or is refusing the Director's assistance by reason of duress, the Director may apply to the court for an order declaring that the adult is in need of protection and, if the court considers it to be in the best interests of the adult, the court may make the order and may authorize the Director to provide the adult with services, move the adult to other premises the Director considers suitable or take other actions that will provide the adult with protection from abuse and with proper care and attention. The court may also, by order, require a person who has abused the adult to stop residing at the premises where the adult resides, prohibit or limit a person who has abused the adult from contact or association with the adult, require a person with a legal obligation to do so to pay for or contribute toward the maintenance and support of the adult or make any other order the court considers appropriate. The Bill provides for the expiry, variation, renewal, termination and appeal of these court orders.