An Update on the Adult Protection Act of Newfoundland and Labrador
April 26, 2022
BY Monika Steger and Krista James
Elder abuse and neglect response is complex because the appropriate action depends on the older person’s unique circumstances, who is hurting them, and their unique needs and desires. The law provides some options and obligations for response. We explain all the legislation relevant to elder abuse response in colonial Canada on our Practical Guide to Elder Abuse and Neglect Law in Canada website.
One type of legislation that can provide options for response in some situations is adult protection legislation. Adult protection statutes do not apply to all elder abuse or exclusively to elder abuse. Instead they apply to abuse, neglect, and sometimes also self-neglect, of “vulnerable adults”—a concept that is defined slightly differently in different laws, but basically means that the person cannot access help on their own due to disability, illness or frailty. This kind of legislation can be invoked to support older people experiencing abuse. It can also apply to younger adults living with disabilities if they meet the criteria set out in the statute.
Adult protection legislation does not apply to all instances of elder abuse because most older people are able to access support and assistance on their own. Therefore they have the legal right to make their own choices about how to live their lives, including about what kind of supports to accept when they are experiencing abuse or neglect.
Newfoundland and Labrador is one of a minority of Canadian jurisdictions which has developed adult protection legislation. This blog post will outline the proposed amendments to Newfoundland and Labrador’s Adult Protection Act. These amendments are not yet in force at the time of writing.
Old Legislation: Neglected Adults Welfare Act
The current Adult Protection Act (“the Act”) came into force June 30, 2014.[1] It replaced the previous Neglected Adults Welfare Act.[2] The intent of the Act is to protect adult residents of Newfoundland and Labrador who were at risk of abuse and neglect, and who do not understand or appreciate that risk.[3]
Five Year Statutory Review
The Adult Protection Act was put in place in 2014. After five years, there was a planned review of the legislation. As part of this review, the Department of Children, Seniors and Social Development sought feedback from key stakeholders including Regional Health Authority staff and management, social workers, police, the Office of the Seniors’ Advocate, the Coalition of Persons with Disabilities, as well as community organizations and the public.[4] The search for feedback was conducted until approximately March 2020.[5]
After collecting the feedback from different health care professionals and community members, a final report was released in September 2020. The report outlined statistics as well as areas that could be improved within the legislation.
The report showed that in the first five years that the Adult Protection Act was proclaimed, 1671 adult protection reports were received, and of those, 1345 were accepted and evaluated.[6] Statistics illustrate that most of the reports originated in the community (83%), and were assessed to be a low or moderate risk (76%). The most common claims received were of self-neglect and neglect, the next highest included physical abuse reports, financial abuse and verbal abuse reports. However, of the reports claimed only 6.3% proceeded to an investigation.
The following figure illustrates the number of reports for each age group, with the largest portion being aged 60+.[7]
Some of the specific feedback included social workers suggesting that future public awareness campaigns ought to focus on managing public education in clarifying that capable adults have the right to choose to live at risk, and to make decisions that might not be desirable to others.[8] Another piece of feedback was obtained from Peace officers who reported that there were challenges in sharing information with health care facilities. In the absence of a Memorandum of Understanding between police and the regional health authorities, there is sometimes a reluctance to share or to disclose information between agencies.[9]
Proposed Changes and their Impact
The proposed changes to the legislation, as outlined by the Minister of Children, Seniors and Social Development in a media release, include the following:
- “Continue to strengthen the rights of adults involved in the adult protection process, which includes legislating timelines on investigations and investigation orders to ensure cases are resolved in a safe and timely manner and ensuring all adults are provided legal representation when appropriate.
- Continue to ensure that the adult protection legislation is reflective of Indigenous and cultural considerations. These cultural connections will be recognized as a key service principle under the legislation, and cultural considerations will be embedded in the service plans that guide the care of all adults that may be in need of support and protective intervention.
- Ensure that Regional Health Authority staff have the ability to intervene and support the safety and well-being of adults for an interim period with court authority to allow time to work with adults and their loved ones to develop a safety plan and avoid resorting to more intrusive and enduring court orders.
- Reform declaration orders to ensure that these orders meet the specific needs of adults in need of protective intervention.”
The New Legislation
Newfoundland’s new Adult Protection Act, 2021 is still in the process of receiving Royal Assent and has not yet come into force. Looking at the proposed amendments, there is an attempt at more comprehensive definitions. For example, health care profession is now defined and the definition for next of kin has been expanded to include siblings. Many of the amendments effect a re-numbering of various provisions.
Some key amendments:
- Remove the plenary approach to capacity. The definition of an adult who is in need of protective intervention has been expanded to reflect that an adult might lack capacity for specific kinds of activities rather than focusing broadly on whether the adult “is incapable of caring for himself or herself” generally. Section 5 includes as one part of the definition that the adult “lacks capacity with respect to one or more of their health care, physical, emotional, psychological, financial, legal, residential or social needs.”
- Amend the guiding principles with respect to family relationships. Section 8(g) is now divided into two principles which state:
- (g) the delivery of services under this Act should, where appropriate, provide for the preservation of family ties and contacts; and
- (h) an adult who is or may be in need of protective intervention should, if desired, be encouraged to obtain support, assistance and advice from family and friends to help that adult understand choices, and to make and communicate decisions.
- Enhance protection for legal rights. A new section 7(1) states that an adult who is alleged to be in need of a protective intervention under the Act has a “right to retain and instruct counsel”, whether or not the matter proceeds to a hearing. Section 7(2) states that “In a proceeding in which an adult’s capacity to make decisions is at issue, the adult shall be considered to have the capacity to instruct counsel.” Section 22 (1), which deals with consent to a temporary order, notes that the judge must be satisfied that the adult has been informed of their right to legal counsel.
- Affirm the right of an adult to decline to participate in an investigation. Section 16(6) states that “an adult who is the subject of an investigation may refuse to participate in an interview or undergo an assessment under this section, unless ordered to do so under section 20”.
- Limit how the Director can intervene prior to getting an order. Section 20(1) is revised to require the Director to get a temporary order in order to remove an adult or require the adult to accept services. This section also grants the court powers to order various kinds of assessments, including a capacity assessment. Section 21(1) contains parallel provisions related to protecting the adults financial assets or property. Emergency intervention without a warrant is still possible under section 26(1), instead of 23(1), if “a director or social worker has reasonable grounds to believe there would be an immediate risk to the adult’s health and safety if no action were taken during the time required to obtain a warrant” and peace officers are required to assist the director or social worker.
Many of the amendments are quite subtle, for example, dividing paragraphs or revising numbering.
The CCEL Practical Guide to Elder Abuse and Neglect Law in Canada will be revised once these amendments are brought into force.
[1] “Adult Protection Act: Information Session”, (nd), online (pdf): Government of Newfoundland and Labrador <www.gov.nl.ca/cssd/files/apa-pdf-ap-info-session.pdf> at 2.
[2] “Adult Protection Act Five-Year Review” (September 2020), online (pdf): Newfoundland and Labrador Centre for Health Information at 15 <www.gov.nl.ca/cssd/files/Adult-Protection-Act-Five-Year-Report_Final.pdf> [Final Report].
[3] Ibid.
[4] “Provincial Government Proposes Updates to the Adult Protection Act” (November 4, 2021) , online: Government of Newfoundland and Labrador <www.gov.nl.ca/releases/2021/cssd/1104n07/>.
[5] Ibid.
[6] Final Report, supra note 2 at 15.
[7] Ibid at 16.
[8] Ibid at 8.
[9] Ibid.
