Duties and responsibilities
Elder abuse and neglect: Balancing intervention and patients’ right to confidentiality
Originally published December 2016
When physicians and other care providers see evidence of possible elder abuse, they instinctively strive to do what’s best for their patient. Indeed, the identification, assessment, and management of elder abuse cases are increasingly seen as important aspects of routine medical care, though determining what actions to take can be challenging for physicians. Appropriate intervention is not only good patient care as this may help to prevent further abuse and mitigate health issues, intervention in the form of reporting may be a requirement depending on the provincial or territorial legislation and the facts and circumstances of a particular case.
What is elder abuse?
The World Health Organization defines elder abuse as "a single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person."1 Elder abuse includes neglect, such as failing to provide necessary care or causing social isolation which can impact a person’s health and well-being.
Patient injuries that are inconsistent with their clinical history, such as recurring falls, should be carefully assessed for possible alternative causes. Signs that a patient may be a victim of physical abuse include head and face injuries, soft tissue and laryngeal injuries, broken ribs, dental fractures, loose teeth, and mandibular fractures. Severe weight loss, signs of poor hygiene and bedsores can point to possible neglect. Physicians will also want to be alert to signs of possible mental abuse, which may become apparent over time. Patients who suffer from dementia, depression, or are socially isolated are generally more likely to be affected.
Physicians are often in a good position to identify patterns of injuries indicative of abuse in this vulnerable population. Physicians may be among the first who can take steps to intervene, and in some cases they may be required by provincial or territorial legislation to report suspected elder abuse.
There are no federal laws in Canada that make reporting of elder abuse mandatory, and the Criminal Code does not identify elder abuse as a specific crime. Physicians similarly do not have a duty to report a criminal offence related to elder abuse to the police. Indeed, this would generally be considered a breach of confidentiality unless there was consent from the patient or substitute decision-maker. If the police contact the physician about a patient who is suspected of being the subject of abuse, information should be provided only with the consent of the patient or substitute decision-maker, or with a court order.
Each Canadian province and territory takes a unique approach to how instances of suspected elder abuse are to be handled.2 Physicians may be required to report to a designated authority if they suspect an older patient is harmed due to unlawful conduct, incompetent care or treatment, or neglect. In some jurisdictions, this obligation is triggered only when the patient is a resident of a care home or in-patient at a public hospital. In Ontario, for example, reporting abuse is mandatory when the patient lives in a long-term care home or a retirement home.3 In contrast, the legislation in Newfoundland and Labrador requires physicians to report any "adult in need of protective intervention," regardless of where that adult may reside. An "adult in need of protective intervention" is defined as a person who lacks capacity and who is "incapable of caring for himself or herself, or who refuses, delays or is unable to make provision for adequate care and attention for himself or herself," or who is abused or neglected.4 In either case, the appropriate agencies will investigate the allegations, and police may be contacted by the agency if the alleged abuse might be criminal in nature.
Consent, capacity, and ageism
When taking actions to address elder abuse, physicians need to consider the principles of consent and capacity, and be aware of ageism. Patients must always be free to consent to or refuse treatment, and be free of duress or coercion. Consent is valid when it is given by a person with the necessary capacity; questions about capacity arise when adult patients suffer from a condition that impairs their mental state.
Established legal criteria are used for determining whether a patient has the capacity to consent which, depending on the jurisdiction, may have been developed by the courts or is set in legislation. An individual who is able to understand the nature and anticipated effects of a proposed intervention and available alternatives, including the consequences of refusing, is generally considered mentally capable to give consent.5 The treating physician typically determines the patient’s capacity to make decisions about proposed treatments. While a patient may be incapable of making decisions regarding certain treatments, the same individual might still have sufficient capacity to give valid consent concerning other treatments or interventions.
Provincial and territorial legislation provide a means to obtain substitute consent when a patient is incapable of giving valid consent. Substitute decision-makers are expected to act in compliance with any prior expressed wishes of the patient, or in the best interests of the patient if there were no prior expressed wishes.
Ageism — the stereotyping and discrimination of people on the grounds of age—reflects prejudices about aging and assumptions that older adults are weak, frail, or incapable. Ageist assumptions can result in a lack of respect for an older person’s values, priorities, goals, lifestyle choices, and his or her inherent dignity as a human being.2 Under Canadian law it is illegal for a person to be discriminated against because of age; similarly, all adults (aged or not) have the right to make their own decisions, including unwise or risky ones. Indeed, a tendency to make poor or even damaging choices does not, in and of itself, make a person incapable of consenting to, or refusing, medical or other care.
Intervention by physicians
The Canadian Medical Association recommends that if the patient is deemed to have capacity physicians should present their concerns to the patient, educate the patient about elder abuse and its dangers, provide the patient with information about local resources (such as social workers) for assistance, and strive to secure the patient’s imminent safety by having a safety plan in place should the patient’s situation deteriorate.6 When circumstances warrant, physicians should encourage the patient to contact the local police service.
While physicians’ priority remains the safety and well-being of the patient, it is also important to respect patients’ right to confidentiality, regardless of age. The patient’s permission should be obtained before discussing any concerns with family members or caregivers who might be able to help. For a patient who is deemed incapable, physicians should identify and contact the substitute decision-maker, communicate their concerns to that individual, and provide the same information about local resources. Physicians are also advised to offer older adults who may be being abused more frequent medical follow-up.6
CMPA members are encouraged to contact the CMPA when they have questions of a medical-legal nature pertaining to the care of aging patients.
- World Health Organization. A global response to elder abuse and neglect: building primary health care capacity to deal with the problem worldwide [Internet]. Geneva (Switzerland): 2008 [cited 2016 Aug]. 148 p. Available from: http://apps.who.int/iris/bitstream/10665/43869/1/9789241563581_eng.pdf
- Canadian Centre for Elder Law. A practical guide to elder abuse and neglect law in Canada [Internet]. Vancouver (BC): British Columbia Law Institute; 2011 Jul [cited 2016 Aug]. 71 p. Available from: http://www.bcli.org/sites/default/files/Practical_Guide_English_Rev_JULY_2011.pdf
- Ontario: Long-Term Care Homes Act, s. 24(1) & 24(4); General Regulation, O.Reg. 79/10, ss. 2, 5 and Retirement Homes Act, s. 75(1) & 75(3) and General Regulation, O.Reg. 166/11, s. 58
- Newfoundland and Labrador: Adult Protection Act ss. 5 & 12
- Canadian Medical Protective Association. Is this patient capable of consenting? [Internet]. Ottawa (ON): 2011 Jun [cited 2016 Aug]. Available from: https://www.cmpa-acpm.ca/en/duties-and-responsibilities/-/asset_publisher/bFaUiyQG069N/content/is-this-patient-capable-of-consenting-1.
- Wang XM, Brisbin S, Loo T, Straus S. Elder abuse: an approach to identification, assessment, and intervention. CMAJ. 2015 May 19 [cited 2016 Aug]; 187(8): 575-581. doi:10.1503/cmaj.141329