Access to Justice: Myth or Reality?

There are many protections ostensibly available to older adults in congregate settings in Ontario. At first blush, it appears as if older adults have many rights, and a large array of mechanisms available to them to enforce these rights. Upon further examination, it becomes evident that while these rights look good on paper, they are not truly effective. The next section will analyze the legal protections currently available to older adults residing in congregate settings to systematically show how many of these rights are hollow.

Civil Litigation

One route for residents to pursue if they feel wronged is civil lawsuits. For example, if a staff member at a long-term care home injures a resident, a negligence claim can be initiated. If a resident felt that a retirement home unilaterally changed the care originally agreed to in the terms of their agreement for services, they can sue for breach of contract for care services.

However the civil justice system contains several inherent problems that are particularly detrimental to older adults residing in congregate settings. The following passage, although dealing with American nursing home lawsuits, succinctly summarizes some of the barriers facing older adults residing in congregate settings:

Nursing home claimants have few desirable litigant characteristics because of their pre-existing illnesses, nonexistent imputed earnings, and low overall economic damages. Many nursing home victims have chronic physical or mental diseases that render them incapable of seeking legal representation so many meritorious cases are never filed…The reality is that elderly nursing home residents are too infirm and have such a low life expectancy that they simply cannot wait years for a settlement or jury verdict.[35]

Turning back to Ontario, one of the most significant impediments to access to justice for older persons is money. The private bar model of law is prohibitively expensive for the majority of Ontarians. A newspaper article, which was quoted by the Honourable Warren Winkler, Chief Justice of Ontario, reported that the cost of taking a routine civil case through to a three-day trial in Ontario is about $60,000.00.[36]

Legal Aid Ontario does provide a limited number of services to older adults if they satisfy the financial requirements, but the income level required is so low that only the poorest members of society are eligible. While some older adults do qualify financially, they may own a home. Legal Aid Ontario will usually require individuals to put a lien against their house in order to receive legal assistance. Many older adults are hesitant to enter into such agreements as they are worried that they could potentially lose their home.[37] Further, many older persons are precluded from receiving legal assistance for issues affecting security of the person because Legal Aid Ontario does not provide certificates to the private bar for most civil claims, including elder abuse, violation of consent and claims against long-term care homes.

Second, even if a resident is able to afford a lawyer, there is an insufficient number of lawyers with the appropriate knowledge and experience to provide competent representation. At present, only a small proportion of the bar directly advises or repre­sents the older adults themselves. While ACE and community legal aid clinics provide such services, we are inundated with work and have limited resources to assist everyone who contacts us. Few lawyers have experience with the types of legal problems that have a specific impact on the older population, such as issues in retirement homes, long-term care, defence of guardianship applications, health care consent and elder abuse.

Even when lawyers do agree to represent persons with an elder law issue, they often fail to understand their duty to the older person. ACE has received complaints where lawyers have breached the Rules of Professional Conduct.[38] In some cases, lawyers have failed to consult with the older person who is their client; instead obtaining instructions from the older adult’s friend or family member. Besides being contrary to the Rules, they may also be putting themselves in a potential, if not actual, conflict of interest position.[39] Other lawyers who are not familiar with particular elder law issues have provided incompetent representation to the older person by not understanding the applicable law.[40]

A third reason why older adults do not have access to the justice system is the lengthy amount of time it takes to resolve a court case. This is especially troublesome for long-term care residents who are often in declining health. According to Justice Winkler, “civil litigation in this province is too expensive and too slow, with the result that many people in Ontario may be denied access to justice.”[41] Many older adults choose not to initiate legal proceedings, even if their case appears to be meritorious, because it may take many years and there is the possibility that they may die before a resolution is reached. In fact, this is a strategy used by defendants: stall the process because the plaintiff may die before any resolution, usually resulting in the nullification of the claim.

Fourth, older adults are reluctant to pursue a civil case because there is a lack of an established body of law respecting lawsuits against retirement and long-term care homes. Based on our own research, ACE could find very few reported cases involving actions against long-term care homes or retirement homes by residents.

Fifth, an extra disincentive for older persons in seeking access to justice is the lack of monetary awards in successful cases. ACE generally does not recommend that older adults commence lawsuits where they are primarily seeking financial compensation because very few types of damages options are available and the amounts awarded are small.

Actions for wrongful death are not permitted in Ontario. If an older adult were to die, dependents of the older adult could only bring a derivative action for the loss of care and companionship pursuant to the Family Law Act.[42]

Older persons usually cannot claim damages for loss of income because they are no longer working. As well, the courts have narrowly interpreted damages for loss of companionship. In a British Columbia case where a 77-year old woman died due to the negligence of an aide in a nursing home, the court refused to award any damages to the woman’s children because “their mother had long ceased to be a companion for she had been physically, mentally and emotionally incapacitated for a considerable time before her death.”[43] This judgment is alarming as it infers that a person can harm an older person with impunity and not be held accountable by the civil justice system.

Criminal Penalties

Alleged perpetrators of crimes against older adults can be charged with a myriad of offences under the Criminal Code of Canada. There are several provisions applicable in cases of possible abuse of older adults, including: theft; theft by a person holding a power of attorney; criminal breach of trust; extortion; forgery; fraud; failure to provide the necessities of life; criminal negligence causing bodily harm; assault; sexual assault; forcible confinement; criminal harassment; uttering threats; intimidation; and harassing phone calls.

There are challenges in using the criminal justice system to seek redress for crimes that take place in congregate settings. Staff at a congregate setting may fail to identify that a crime has occurred and, consequently, fail to report incidents to the police. Some operators may choose to address an issue internally as a matter of staff discipline because they do not want the adverse publicity that may result from criminal proceedings. If staff do report the alleged crime, the police may not understand the institutional environment or the rules and regulations that apply in these settings. This lack of knowledge may hamper the appropriate investigation of crimes. Police may be uncomfortable in investigating alleged crimes within a facility as they may have limited understanding and appreciation of mental capacity and physical disability and how this may impact on the ability of witnesses to testify and make statements. The police may assume that a resident lacks capacity when in fact that person, although cognitively impaired or diagnosed as having Alzheimer’s disease or a related disorder, may still retain the capacity to be an effective witness. Even if they lay charges, the police may face the challenge of a reluctant Crown attorney who feels there is insufficient evidence to proceed to a successful prosecution, despite the results of the police investigation.

For older adults, delays in the administration of justice can mean that the victims are deceased or incapable by the time their case goes to trial. In a Supreme Court of Canada decision, R. v. Khelawon, the manager of a retirement home was accused of assaulting five different residents.[44] By the time of trial, four of the victims had died, and the remaining victim was incapable of testifying because he was no longer competent. This delay ultimately resulted in an acquittal for the accused. Since none of the victims were able to testify on their own behalf, the only form of evidence consisted of videotaped statements made by the victims after the assaults, which were later ruled inadmissible in court. The Supreme Court upheld this decision on appeal from the Crown because of the unreliability of the videotaped statements.

R. v. Campoli was another case where charges of assault against an elderly person were difficult to pursue because the victim was not able to testify on her own behalf.[45] Here, a personal support worker employed at a retirement residence was accused of assaulting an elderly woman under his care. By the time the case went to trial, the victim had passed away. The Ontario Court of Justice held that a videotaped statement made by the victim some three weeks after the first allegation was hearsay and therefore inadmissible in court. This case has not yet been resolved, so it remains to be seen whether there is sufficient evidence for a conviction to be obtained without the victim’s testimony.

Informed Consent

Ontario has comprehensive legislation, namely the Health Care Consent Act, 1996[46] and Substitute Decisions Act, 1992,[47] governing decision-making for all people in the province. The law requires that health practitioners obtain informed consent to treatment from all individuals who are capable. Where the person is incapable, informed consent must be obtained from the person’s substitute decision-maker. However, these requirements continue to be ignored and are often the focus of complaints at ACE by both residents and their substitute decision-makers. We are frequently contacted by substitute decision-makers who have discovered that a mentally incapable person has been given a medication about which the substitute decision-maker knows nothing, and it is often not until they call us do they learn of the health practitioner’s legal obligation to obtain informed consent prior to commencing treatment. This scenario is more common in long-term care homes as the substitute decision-maker may not be aware of or present during the resident’s appointment with the physician who provides care to the home, whereas in the community, the older adult often would have been accompanied by the substitute decision-maker.

Usually, but not always, the complaints are about the prescribing of antipsychotic medication, which have the potential for serious side-effects or may, in fact, be contraindicated for use in the elderly. Antipsychotic drugs were initially developed in the 1950s to treat conditions such as schizophrenia but have become widely used in long-term care homes to manage behavioural disturbances and agitation associated with dementia. By 2000, in addition to the known side-effects (e.g., sedation, falls and hip fractures, cardiac complications, weight gain, metabolic complications, neuroleptic malignant syndrome and cognitive decline), studies showed that the use of antipsychotic medications for older adults with dementia is associated with a slight increase in the risk of death.[48] The United States Food and Drug Association and Health Canada subsequently issued regulatory warnings, with the Food and Drug Association also requiring certain medications to be packaged with a “black box” warning describing the risks associated with use of these medications to treat dementia in the elderly.[49]

According to the Canadian Institute for Health Information, in 2006-2007, 37.7% of residents residing in long-term care homes on public drug programs were prescribed antipsychotics versus only 2.6% of older adults living in the community.[5