January 17, 2017

Speech at the parliamentary committee concerning Bill 115

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Speech of the Acting Ombudsman, Mr. Claude Dussault, at the parliamentary committee before the Committee on Citizen Relations on Bill 115 — Act to combat maltreatment of seniors and other persons of full age in vulnerable situations.

(The following is a translation of the original speech written and delivered in French.)

Mr. Chair,
Madam Minister responsible for Seniors and Anti-Bullying,
Committee Members,

I would like to begin by thanking the Committee on Citizen Relations for its invitation to comment on Bill 115 — Act to combat maltreatment of seniors and other persons of full age in vulnerable situations.

Summary of Bill 115

In a nutshell, this Bill provides for the obligation for every health and social services network institution to have a policy to combat maltreatment of vulnerable people of full age who receive these services, whether the perpetrator is someone working for the institution or anyone else.

The services we are referring to here may be delivered within the institution, outside it through agreements or contracts with public or private providers, or as part of home care or support services.

The new policy would therefore apply to any facility attached to the institution, intermediate resources, family-type resources that take in users of full age, and private seniors’ residences, as well as to care or services dispensed at home.

The complaints or reports stemming from it would be under the responsibility of the service quality and complaints commissioners appointed pursuant to section 30 of the Act respecting health services and social services.

Preliminary remarks on Bill 115

The Bill sends a clear message—maltreatment of vulnerable people is unacceptable in Québec society. The Québec Ombudsman cannot but fully subscribe to this position.

Already a great many players—users’ groups, researchers, professional orders, community organizations, public agencies and other bodies—are working to prevent and remedy maltreatment. In fact, some thirty are involved in this commission.

However, none of them have the prevention of maltreatment as their only mission. Their reports, notably their accountability, provide very few results specifically related to maltreatment. In Bill 115 the Québec Ombudsman sees a clear desire to crystallize the fight against maltreatment through policies and accountability tailored to this issue.

On this score, I would add that the more we know about and zero in on a problem, the better the chances of countering it.

General comments on Bill 115

In addition to health and social service network institutions’ obligation to adopt and implement a policy to combat maltreatment of seniors or other people of full age in vulnerable situations, Bill 115 features several advances that deserve mentioning.

It provides for less stringent conditions for the communication of protected information under certain circumstances that resemble maltreatment, for example, waiving of professional secrecy when there is a “serious risk” and a “sense of urgency.” Up to now, this could only be done when there was “imminent danger.”  This constitutes a gain.

Furthermore, the Act would prohibit any form of reprisal against anyone who reports maltreatment in good faith or cooperates in examining a report or complaint.  The Québec Ombudsman completely agrees with this as it does with the adoption of a broader definition of “serious injury” that would henceforth include “psychological injury,” even if the latter is more difficult to prove.

Bill 115 would empower the government to determine by regulation the terms governing the use of monitoring mechanisms, such as cameras or any other technological means, on the premises subject to the Act respecting health services and social services.

I would like to point out that the Québec Ombudsman already weighed in on this question and we will pay close attention to the draft regulation. While cameras can be useful tools, the regulation must not make things more complicated for users who want to install them in their living environment but who would now have to deal with a series of pre-authorizations. The use of cameras must respect users’ right to privacy in their living environment. Cameras must only be installed with the consent of the user in question or, if the user is incapacitated, with the consent of the person’s legal representative, and only when the circumstances warrant it.

A few crucial improvements

That said, we feel that Bill 115 requires certain improvements if it is to fully achieve its objectives, in particular because it is imprecise at times.

Ensure that not only seniors are covered, but also anyone of full age in a vulnerable situation

The purpose of Bill 115, as its title, explanatory notes and section 1 make clear, is to combat maltreatment of people of full age who are vulnerable, whether  seniors or any other person of full age in a vulnerable situation. 

This inclusion of anyone who is vulnerable, except, of course, minors because they are covered by the Youth Protection Act, seems completely appropriate.

Now, certain of Bill 115’s provisions have to do with seniors only and therefore suggest that they did not apply to other people of full age in vulnerable situations.

Mr. Chair, this is what happens throughout Chapter III, that is, sections 16 to 18, titled “Maltreatment of Seniors,” and which has no counterpart for other people of full age in vulnerable situations.

The Québec Ombudsman applauds these provisions that formalize the required joint action by the actors and agreements for protecting seniors against maltreatment, but considers that this coordination is just as relevant and crucial to protecting others of full age in vulnerable situations. Does the fact that the Bill remains silent in this regard mean that an intervention process and distinct agreements will have to be developed for other people of full age in vulnerable situations, without the power conferred by their inclusion in the Act?

As the Québec Ombudsman sees it, it would be counterproductive to duplicate structures or agreements that, would, very often, concern the same actors. This is why it is recommending that the intervention process provided for in Chapter III, including multi-sector agreements, as much as possible also apply to other people of full age in vulnerable situations. For example, this intervention process could consist of a common core that would include common measures, while providing for special terms for the various categories of people to protect—seniors and other people of full age in vulnerable situations.

Consequently, the Québec Ombudsman recommends that:

  • The Bill be amended so that Chapter III provides for the same efforts towards joint action for all people of full age in vulnerable situations. (Recommendation 1)

Clearly reference the current complaint processing procedure

In terms of health and social services, the Québec Ombudsman basically has the same scope as service quality and complaints commissioners, except that, generally, it intervenes downstream from the commissioner’s intervention regarding a user’s complaint, or directly, further to a report by a third party. Subparagraph 9 of the fourth paragraph of section 34 of the Act respecting health services and social services provides that when commissioners communicate their conclusions to users, they must inform them that they can seek redress with the Québec Ombudsman.

Section 14 of the Bill provides that the service quality and complaints commissioner add a section on maltreatment to his or her annual report to the institution. This new practice is necessary, but I feel that it is not enough in order to establish the connection between the anti-maltreatment policy and the complaint examination procedure. This is why when it comes to maltreatment of people of full age in vulnerable situations who receive health services and social services, the policy against maltreatment must clearly fit within the broader framework of the complaint examination procedure enshrined in the Act respecting health services and social services. A clarification to this effect in Bill 115 would unequivocally convey the idea that approaching the Québec Ombudsman at the second level of redress is possible.

Allow me to give you an example. A CHSLD resident is assaulted repeatedly by another resident or an employee of the institution. Section 2 of the Bill refers to “a lack of appropriate action … in a relationship where there is an expectation of trust, and that causes harm.” This kind of situation therefore seems to fall squarely within the purview of the new policy.

Users and commissioners must not associate this policy with a complaint examination procedure different from the one already enshrined in the Act respecting health services and social services (sections 29 to 76.14) and, as a result, obscure redress through the Québec Ombudsman. I feel that the resident I referred to in the preceding example, who would have gone to the commissioner to denounce the situation, must, if he or she is dissatisfied with the commissioner’s conclusions, be able to turn to the Québec Ombudsman.

Our understanding of it is that the procedure provided for in Bill 115 to stop maltreatment in the health and social services network is part of the complaint examination system. We therefore feel it is important that this be spelled out in section 3 of Bill 115, if only to dispel any ambiguity and prevent differing interpretations.

Consequently, the Québec Ombudsman recommends that:

  • Section 3 of Bill 115 be amended so that the steps taken to stop  maltreatment, as well as the handling of complaints and reports, are part of the complaint examination procedure provided for in sections 29 to 76.14 of the Act respecting health services and social services. (Recommendation 2)

Clearly define the Bill’s scope and the respective responsibilities

Properly defining the scope of a Bill and the responsibilities stemming from it is fundamental. Before discussing this question as it pertains to Bill 115, a brief description is needed of the current situation in matters of maltreatment of seniors or other people of full age in vulnerable situations, especially concerning service quality and complaint commissioners’ responsibilities.

Currently, commissioners can act because there is a connection with the health and social services network: institution, employee in the exercise of his or her duties, accredited resources or resources under contract—here I am thinking about private seniors’ residences or family-type resources in particular. For example, a person who receives care or services at home can complain to the commissioner if there are problems. However, this person cannot file a complaint with the commissioner about abuse by a family member.

With the policy against maltreatment that institutions would have to adopt pursuant to section 3 of Bill 115, the commissioner could receive such a complaint. This is a broadening of the commissioner’s scope. However, even if commissioners were answerable for receiving such complaints, they would not necessarily be able to handle them.

As it is now worded, section Bill 115 provides that the commissioner is answerable, “if applicable, for directing the person making such a report to another appropriate authority.” The Québec Ombudsman considers that this referral must be mandatory when the commissioner is unable to handle the case adequately and, more importantly, make a recommendation that is relevant. In some cases, even if commissioners investigate into someone “outside the network,” because they are unable to recommend any relevant corrective measure to an authority within their purview, they would have no control over what ensues. Furthermore, this obligation to direct a person to an appropriate authority should apply not only in the case of a report, but also when the person directly concerned files a complaint.

Even when a case falls within their area of jurisdiction, commissioners must make a point of alerting the appropriate authorities (for example, the police) to situations that require it and, if necessary, continue conducting their own investigation, and, where applicable, make recommendations to the institution concerned.

Consequently, the Québec Ombudsman recommends that:

  • Section 30 of Bill 115 be amended by:
    • replacing the words “making such a report” by the words “making such a complaint or report;”
    • adding the following words at the end: “the commissioner having to direct these persons when he or she is unable to recommend a relevant corrective measure to an institution within its area of jurisdiction pursuant to the Act respecting health services and social services.” (Recommendation 3)

Conclusion

The Québec Ombudsman fully endorses the spirit of Bill 115, which attests to the concern we all have regarding unacceptable acts of maltreatment. And precisely because here we are talking about intolerable occurrences, we must be sure that we have effective and realistic means of waging a successful battle.

Our recommendations are aimed basically at allowing the Act its full breadth for better protecting people in vulnerable situations. This is why the policy set out must fit clearly within the existing complaint examination procedure, which has proven itself on the anti-maltreatment front and continues to do so. Service quality and complaints commissioners must also be better equipped to refer people who make complaints or reports to the proper authority at the right time.

In closing, I am convinced that you, like the Québec Ombudsman, care deeply about ending an untenable reality. All we need do is think of those we love who are vulnerable because of their age or because of any other limitation. We would not tolerate any compromise when it comes to any of these people’s safety and right to dignity. The same holds true for the well-being of all citizens.

Thank you.