[38] Bill 47 Original (PDF)

Bill 47 2004

An Act to protect
persons in care from abuse

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

Interpretation

Definitions

1.  In this Act,

"abuse" means mistreatment, whether physical, sexual, mental, emotional, financial or a combination of any of them, that is reasonably likely to cause death or that causes or is reasonably likely to cause serious physical or psychological harm to a person, or significant loss to the person's property; ("mauvais traitements")

"health facility" means,

(a) a public hospital under the Public Hospitals Act,

(b) a private hospital under the Private Hospitals Act,

(c) an approved charitable home for the aged under the Charitable Institutions Act,

(d) a home within the meaning of the Homes for the Aged and Rest Homes Act,

(e) a psychiatric facility under the Mental Health Act,

(f) a nursing home under the Nursing Homes Act, or

(g) any place designated as a health facility under the regulations; ("établissement de santé")

"investigator" means an investigator appointed under section 5; ("enquêteur")

"Minister" means the member of the Executive Council to whom the administration of this Act is assigned under the Executive Council Act; ("ministre")

"patient" means an adult resident, in-patient or person receiving respite care in a health facility; ("patient")

"service provider" means a person who provides services to a patient and is employed by, or provides the services on behalf of, a health facility. ("fournisseur de services")

Duty to Protect Patients
from Abuse

Duty of health facility to protect patients from abuse

2.  The operator of a health facility has a duty to protect the patients of the facility from abuse and to maintain a reasonable level of safety for them.

Reporting Abuse

Patient may report abuse

3.  A patient may report abuse against himself or herself to the Minister.

Duty to report

4.  (1)  A service provider or other person who has a reasonable basis to believe that a patient is or is likely to be abused shall promptly report the belief and the information on which it is based to the Minister.

If information confidential

(2)  The duty to report applies even if the information on which the person's belief is based is confidential and its disclosure is restricted by law or otherwise, but does not apply to information that is privileged because of a solicitor-client relationship.

Investigating Reports of Abuse

Minister to inquire into report of abuse

5.  (1)  On receiving a report of abuse under this Act, the Minister shall inquire into the matter and shall consider whether a more extensive investigation is warranted.

Minister may appoint investigator

(2)  If, after inquiry, the Minister finds there are reasonable grounds to believe that a patient is or is likely to be abused, he or she shall appoint an investigator to carry out a more extensive investigation.

Notice to the patient

(3)  As soon as practicable after appointing an investigator, the Minister shall give notice that a report of abuse has been made and that an investigation is to be conducted to the patient or, if the patient has a substitute decision-maker under the Health Care Consent Act, 1996, to the substitute decision-maker.

Right to enter a facility

6.  (1)  For the purpose of investigating a report of abuse under this Act, an investigator may enter a health facility at any reasonable time, on presenting identification when requested to do so.

Information and records

(2)  The investigator may require any person who is able, in the investigator's opinion, to give information about the matter being investigated,

(a) to give the information to the investigator; and

(b) to produce for examination or copying any record or other thing, including, and despite any other Act or law, personal health information that, in the investigator's opinion, relates to the matter being investigated and that may be in that person's possession or control.

Assistance to investigator

(3)  The operator of a health facility and any person required to give information or produce a record or other thing shall give the investigator all reasonable assistance and all information that the investigator reasonably requires.

Warrant

(4)  A justice who is satisfied by information on oath that an investigator has been prevented from exercising his or her powers under this section, or that there are reasonable grounds to believe that an offence under this Act has been committed, may at any time issue a warrant authorizing the investigator and any other person named in the warrant to exercise those powers.

Application of POA

(5)  Sections 158 to 160 of the Provincial Offences Act apply, with necessary modification, to a warrant under this section.

No obstruction

(6)  No person shall obstruct an investigator acting in the performance of his or her duties.

Solicitor-client privilege

(7)  Nothing in this section abrogates a privilege that may exist because of a solicitor-client relationship.

Report to Minister

7.  (1)  On completing an investigation, the investigator shall set out his or her conclusions and the reasons for them in a report and give it to the Minister.

Patient involvement

(2)  When making a report, the investigator shall try, to the fullest practical extent, to involve the patient and to determine and accommodate the patient's wishes.

Directions

Minister may give directions

8.  (1)  On receiving an investigator's report under section 7, the Minister may give the operator of the health facility involved any directions the Minister considers necessary to protect the patient from abuse.

Notice to patient

(2)  The Minister shall give a copy of the directions to,

(a) the patient about whom the investigation was conducted or, if the patient has a substitute decision-maker under the Health Care Consent Act, 1996, the substitute decision-maker; and

(b) any other person the Minister considers should be notified, having regard to the nature of the abuse reported and the need to protect the patient's privacy.

Operator must comply with directions

(3)  Within the time the Minister specifies, the operator of the health facility shall comply with the Minister's directions and give the Minister a written report describing what action has been taken or will be taken to comply.

Referral to Professional Body

Referral to professional body

9.  (1)  If the Minister believes on reasonable grounds that a person has abused a patient or has failed to comply with the duty to report under section 4, the Minister may refer the matter to the body or person that governs the person's professional status or that certifies, licenses or otherwise authorizes or permits the person to carry on his or her work, profession or occupation.

Requirement to investigate

(2)  A body or person that receives a report under subsection (1) shall,

(a) investigate the matter to determine whether a professional status review or disciplinary proceedings should be commenced against the person; and

(b) on conclusion of the investigation and any review or proceedings, advise the Minister of the determination under clause (a), the reasons for the determination and, if applicable, the results of any professional status review or disciplinary proceedings.

When investigation not required

(3)  If a referral is made under this section to a body or person that the Minister considers can deal appropriately with the matter, the Minister may decide not to appoint an investigator under section 5 or may defer doing so.

Protection for Persons
Who Report

Protection from liability

10.  No action or other proceeding may be brought against a person for making a report of abuse under this Act in good faith.

Adverse employment action prohibited

11.  (1)  No operator of a health facility shall take adverse employment action against a service provider of the facility because that person made a report of abuse in good faith under this Act.

Interruption of service prohibited

(2)  No operator of a health facility or other person shall alter, interrupt or discontinue, or threaten to alter, interrupt or discontinue, service to a patient or to a person who has made a report of abuse under this Act, or to a relative of either of them who receives services from the facility because a report of abuse has been made under this Act in good faith.

Offences

Offence and penalty

12.  (1)  A person who contravenes this Act is guilty of an offence and is liable on conviction,

(a) in the case of an individual, to a fine of not more than $50,000; and

(b) in the case of a corporation, to a fine of not more than $1,000,000.

Offence of making a false report

(2)  A person who makes a report of abuse under this Act, knowing it to be false, is guilty of an offence and is liable on conviction to a fine of not more than $2,000.

Prosecution within two years

(3)  A prosecution under this Act may be commenced not later than two years after the alleged offence is committed.

Regulations

Regulations

13.  The Lieutenant Governor in Council may make regulations,

(a) designating places or categories of places as health facilities for the purposes of this Act;

(b) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.

General

Minister may delegate

14.  (1)  The Minister may delegate to any person or persons any power conferred or duty imposed on the Minister by this Act, subject to any conditions that the Minister may set out in the instrument of delegation.

Acts of delegate

(2)  A delegate acting within the scope of his or her authority shall be deemed to be the Minister for the purposes of any provision of this Act that refers to the Minister.

Protection from liability

15.  No action for damages or other proceeding may be brought against the Minister, an investigator or any other person acting under the authority of this Act or engaged in administering it,

(a) for anything done in good faith in performing or intending to perform a duty or in exercising or intending to exercise a power under this Act; or

(b) for any neglect or default in performing a duty or exercising a power in good faith under this Act.

Non-application of SPPA

16.  The Statutory Powers Procedure Act does not apply to any action or decision of an investigator or the Minister under this Act.

Crown bound

17.  This Act binds the Crown.

Commencement and Short Title

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 Safeguard Our Seniors Act, 2004.

EXPLANATORY NOTE

A duty is placed on operators of health facilities to protect patients from abuse, and on persons who are aware of abuse to report it. The Minister is given powers to have reported cases of abuse investigated, and to take action to deal with abuse.