Protection of the vulnerable older adult: A review of the legislation, relevant case law, and common clinical practice

Issue: BCMJ, Vol. 59, No. 7, September 2017, page(s) 356-361 Articles
Jeanine C. Marshall, MD, FRCPC, Darren Cotterell, MBBCh, MSc, MRCPsych, Peter Chan, MD, FRCPC, Matthew Scott, MSW, RSW, Gerrit Clements, JD

Gaps in the legal framework used to facilitate involuntary admissions in BC can leave physicians unsure how to proceed when patients need protection because of a mental disorder or an illness, disease, injury, or condition that makes them vulnerable to abuse or neglect.

ABSTRACT: In British Columbia the protection of vulnerable older adults is facilitated primarily by the Mental Health Act and the Adult Guardianship Act. While the Mental Health Act protects adults with mental disorders who need treatment but are not willing to accept it, the Adult Guardianship Act protects adults with an illness, disease, injury, or condition that makes them vulnerable to abuse or neglect. Unfortunately, the legal framework provided by these two Acts contains significant gaps and physicians may be unsure which piece of legislation they should rely on in a particular clinical situation. Compounding this problem, there is little case law to guide physicians, and the resulting lack of clarity means that clinical practice varies widely. Physicians can benefit from knowing how the two Acts differ and how the resources and provisions they contain apply to a typical clinical scenario. In this scenario, an 84-year-old woman with cognitive decline and functional impairment is admitted to hospital with pneumonia. Her son and only caregiver does not agree with the recommended treatment and plans to remove his mother from hospital. The legal and ethical questions raised by this clinical scenario highlight the challenges that can occur in the care of a vulnerable older adult.

The Mental Health Act (MHA) and the Adult Guardianship Act (AGA) are intended to protect vulnerable adults by permitting involuntary admission and treatment. While the Acts contain some similar provisions, each aims to protect a different vulnerable population (Table). While other Acts play a part in protecting vulnerable adults—including the Patients Property Act and the Health Care (Consent) and Care Facility (Admission) Act—the MHA and AGA are the two pieces of legislation used most often to facilitate and maintain involuntary admission and treatment.

The MHA is a familiar and commonly used piece of legislation concerned with vulnerability consequent to active and treatable mental illness: the Act describes designated resources and formal processes for adults who need treatment but are not willing to accept it. The AGA is concerned with a more diverse population: the Act applies when an illness, disease, injury, or condition makes an individual vulnerable to abuse or neglect.

Mental Health Act
The MHA allows for involuntary admission and treatment of patients who would be at significant risk of harm or deterioration if their mental health disorders were left untreated.[1] In order to be admitted to a facility on an involuntary basis, patients must meet all four of the following criteria:
•    Be suffering from a mental disorder that impairs their ability to react to their environment or associate with others.
•    Require psychiatric treatment in or through a designated facility.
•    Require care, supervision, and control in or through a facility to prevent mental or physical deterioration or for protection of self or others.
•    Be unsuitable for admission as a voluntary patient.[1]

The certifying physician who determines that a patient meets these criteria must complete Form 4: Medical Certificate (Involuntary Patient). For an involuntary admission to continue, a second Form 4 must be completed by another physician within 48 hours. Extending admission requires completion of Form 6: Medical Report on Examination of Involuntary Patient (Renewal Certificate). Treatment of mental and medical illness is undertaken after completion of Form 5: Consent for Treatment (Involuntary Patient). When a patient who has been certified is released from a facility on extended leave, the conditions for release are outlined using Form 20: Leave Authorization. Patients on extended leave can be mandated to live at a certain residence or facility.

Adult Guardianship Act
The AGA protects adults who are incapable of managing their personal or financial affairs as a result of self-neglect or neglect or abuse by others.[2] This Act states that every adult is presumed to be capable of managing his or her own affairs and when an adult does require support, it must be provided in the least restrictive and intrusive form.

Section 59 (Emergency assistance) of the AGA allows for urgent action by a designated agency (e.g., a regional health authority) if there is imminent risk and the following criteria are met:
•    The adult is apparently abused or neglected.
•    It is necessary, in the opinion of the person from the designated agency, to act without delay in order to:
      –    Preserve the adult’s life.
      –    Prevent serious physical or mental harm.
      –    Protect the adult’s property from significant loss or damage.
•    The adult is apparently incapable of giving or refusing consent.[2]

Under emergency assistance provisions, a designated agency has the authority to enter any premises where the adult is located without a warrant, use any reasonable force, remove the adult to a safe place, and provide emergency health care. The authority to act under Section 59 may continue until the circumstances that resulted in the emergency have been remediated.

Protection for nonemergent abuse and neglect is provided by the support and assistance plan provisions of the AGA. Such a plan is prepared by a designated agency and specifies any services required by the adult, “including health care, accommodation, social, legal, or financial services.”[2] This plan can be prepared using guidance provided in a publication from the Public Guardian and Trustee of British Columbia[3] and requires the consent of the adult for whom it is designed. If the adult is unable to consent to the plan, the designated agency can apply through a court process for a support and assistance order. Judicial approval of necessary services lasts for 1 year under Section 56 and can be renewed once through an application to the court.

Barriers to the effective implementation of support and assistance plans under the AGA include a lack of standards to guide investigations into abuse and no funding or infrastructure for formal court processes when the need arises. As a result, applications for a support and assistance order are costly, time-consuming, and thus extremely rare. In British Columbia only a handful of these orders have been granted, with legal costs ranging from $20 000 to over $100 000. Instead, the concepts and steps outlined in the AGA are often used more informally. Despite the fact that in most cases the vulnerable adult is incapable of consenting to the support and assistance plan, collaboration with the adult and other associated parties can still result in plan implementation.

Clinical scenario
Mrs Cader is an 84-year-old widow diagnosed with major vascular neurocognitive disorder and a history of weakness and falls.[*] She lives with her son and only relative, Michael, whom she depends on for all instrumental activities of daily living and assistance with basic personal care. She has presented to the emergency department on four occasions recently and has now been admitted to hospital for treatment of pneumonia with intravenous antibiotics. She is found to have poorly controlled type 2 diabetes and borderline nutritional status. The unit physiotherapist has created a daily strengthening program to address her physical deconditioning. Mrs Cader has a very limited understanding of her medical condition, cognitive decline, and functional impairment, and following a formal capacity assessment is determined to be incapable of making major medical decisions or deciding on her disposition and care needs. She does not have a representation agreement that provides for health care decision making. As her nearest living relative, Michael is named temporary substitute decision maker.

During Mrs Cader’s hospital stay, staff members observe Michael interfering with her recommended care. He is overheard advising his mother not to take the medications that are brought to her. He takes her off the ward for lengthy periods, which prevents her from participating in the recommended strengthening program.

Mrs Cader’s family physician reports that Michael has often neglected to bring her for appointments and frequently does not follow through with medication and other recommendations. A family meeting is held and the care team recommends that Mrs Cader be transferred to a transitional unit in order to participate in a longer course of rehabilitation.

Concern is expressed regarding Michael’s interference with his mother’s care. Michael states that he disagrees with the treatment plans and that he intends to move her to Winnipeg, where the two lived originally.

Later that evening, staff members see Michael in his mother’s room packing her belongings. They contact the house physician, who fills out a Mental Health Act Form 4 and calls another physician with a request to assess Mrs Cader and fill out a second Form 4.

Legal and ethical questions
As well as highlighting the challenges that can occur in the care of a vulnerable older adult, this clinical scenario raises a number of legal and ethical questions that would need to be considered by a physician asked to complete the second Form 4.

What legal framework should be used to keep Mrs Cader in hospital? Three courses of action are available:
1. Use the involuntary patient provisions of the MHA (Form 4 and Form 5).
    •    Certify Mrs Cader under the MHA and maintain her in hospital under the Act’s authority.
    •    Inform her and pertinent others of the right to request a review panel hearing under the MHA.
    •    At the hearing, argue that Mrs Cader has a mental disorder (major vascular neurocognitive disorder) and requires treatment in hospital to prevent neglect and receive care and medications that she is unable to provide for herself as a result of her mental disorder.

2. Use the emergency assistance provisions of the AGA (Section 59).
    •    Maintain Mrs Cader in hospital as an involuntary patient.
    •    While she is admitted on an emergency basis, perform an investigation and prepare a support and assistance plan.
    •    If the family does not comply with the plan, apply to the courts for a support and assistance order.

3. Use the involuntary patient provisions of the MHA (Form 4 and Form 5) and the support and assistance plan provisions of the AGA (Sections 47 to 51).
    •    Use the authority of the MHA to certify Mrs Cader and maintain her in hospital based on the fact she has a mental disorder and requires treatment.
    •    Use the authority of the AGA to perform an investigation and prepare a support and assistance plan to address the issues of abuse and neglect.

Regarding option 1, certification under the Mental Health Act using  Form 4 is universally familiar and much more accessible than the process provided by the Adult Guardianship Act. However, some would argue against the use of the MHA in this case, noting that the treatment is provided for social reasons rather than to remedy a psychiatric condition. From this perspective, using the AGA would appear to be more a judicious choice.

Regarding option 2, Mrs Cader could be held under Section 59 of the AGA while a support and assistance plan is developed. However, some would argue that formulating such a plan could be an exercise in futility because it requires the cooperation of the family and caregivers and Mrs Cader’s son has already demonstrated unwillingness to follow medical advice. Also, looking to the future, if efforts to put this plan in place are not successful, the next step would be to apply for a support and assistance order, a lengthy and onerous process that rarely results in the granting of an order.

Regarding option 3, some would argue that Mrs Cader falls under the authority of both the MHA and the AGA, and that provisions from both Acts could be applied.
Ultimately, the lack of clarity in the legislation in British Columbia has led to variations in practice from one physician to another and across regions. While many prefer the MHA’s ease of use, there are anecdotal reports that some physicians resist using the MHA in the hope of effecting a more efficient, case-law-driven process based on the AGA.

Does treatment under the MHA include social interventions such as hospitalization of a vulnerable adult in order to provide a safe environment? Legal precedent is limited to a single case from 1980: Robinson v. Hislop (1980), CANLII 733 (BCSC), 114 DLR (3rd) 620 (BCSC). According to this case, treatment under the MHA may consist solely of nursing care, such as management of basic care needs or administration of psychotropic medications (which would presumably include cognitive enhancers often required by patients with neurocognitive disorders).

Is there case law to guide physicians on the gaps between the AGA and MHA? Unfortunately, no.

Are physicians justified in using the MHA to cover the gaps that exist in the AGA in order to protect the patient’s best interests? Though the use of the MHA in this case may not directly follow the original intent of the Act, physicians could argue that ethically and legally they are employing the MHA to protect the best interests of the patient. They may also argue that the onerous and inadequate process required by the AGA has created a systemic problem, and such legislative limitations should not influence treatment of an individual patient.

Can physicians who opt not to use the MHA in cases such as this be held liable for an adverse outcome? If a physician chooses to use the AGA rather than the MHA and an adverse outcome results (e.g., harm or death secondary to abuse or neglect) after the patient leaves hospital against medical advice, a family could sue based on the fact that the MHA was available as a way to prevent the discharge. Because using this legislation to protect patients has become common clinical practice, physicians not using the MHA provisions could be seen to have failed to meet their duty of care. However, a counterargument could be made that the liability for this poor outcome lies not with the physician who relies on the AGA but with the lack of appropriate enforcement of AGA provisions by the responsible health authority. In any event, it is not clear where liability lies when a patient leaves hospital against medical advice as this has not yet been tested in court.

What is the problem with using the MHA in cases of older adult abuse and neglect? The populations to be protected by the MHA and the AGA are not the same. The AGA was created to protect adults with an illness, disease, injury, or condition that makes them vulnerable, and therefore addresses issues that are often more a consequence of social circumstances than of mental illness. One of the guiding principles of the AGA states “all adults should receive the most effective, but the least restrictive and intrusive, form of support, assistance or protection when they are unable to care for themselves or their financial affairs.”[2] To employ the MHA in circumstances where the coverage of the AGA is deemed too onerous or impractical is also to put limits on the individual’s civil liberties. In doing so, it engages in a process that is much more intrusive and not in keeping with the goals of the AGA.

It is also important to recognize that using the MHA requires financial and health care system resources. Vulnerable adults detained under the MHA must comply with legal processes (e.g., review panels) and require psychiatric care and ongoing monitoring. When the issue is primarily a social one that does not require the expertise of a psychiatrist, then alternative social and health authority processes should be adopted.

If Michael were to remove his mother from hospital, would the police be able to intervene under the emergency assistance provisions of the AGA and return her to hospital? Section 59 of the AGA allows designated agency staff to “use any reasonable force that may be necessary in the circumstances”[2] to convey a vulnerable adult to a safe place. In these cases it often becomes necessary for health care staff to utilize the support of the police because of the risk of violence. The AGA was written to allow designated agency staff to call for police backup when necessary to prevent a breach of the peace, as specified under the Criminal Code. However, in practice police are often reluctant to become involved in cases of involuntary removal under the authority of the AGA, and prefer to act under the authority granted by Section 28 (Emergency procedures) of the MHA.

Under what legal framework can patients be transferred to and maintained in long-term care or a designated facility? The decision-making authority granted by a power of attorney covers legal and financial matters; it does not extend to living arrangements. Part 3 of the Health Care (Consent) and Care Facility (Admission) Act was drafted to address the legislative problem of living arrangements and facility admissions but is not yet in force, despite being passed by the BC legislature in 1993 and amended in 2007. This leaves six ways that a person can be transferred to and maintained in a facility under the current legal framework:
1.    Using the extended leave provisions of the MHA.
2.    Using the committee provisions of the Patients Property Act.
3.    Using the Section 9 provisions of the Representation Agreement Act, although there is ongoing debate about whether the representative’s authority to make transfer arrangements must be spelled out in the written agreement or is covered by the general authorization to make “personal care” decisions.
4.    Using the Section 59 (Emergency assistance) provisions of the AGA, although the Act provides no guidance regarding how long this authority will last once the patient has been transferred.
5.    Using the Section 53 (Support and assistance plan) provisions of the AGA when the patient is capable of consenting.
6.    Using the Section 56 (Support and assistance orders) provisions of the AGA when the patient is not capable of consenting.

Under what legal framework can restraints be used in long-term care or a designated facility? The Community Care and Assisted Living Act Residential Care Regulation defines a restraint as “any chemical, electronic, mechanical, physical or other means of controlling or restricting a person in care’s freedom of movement in a community care facility, including accommodating the person in care in a secure unit.”[4] Section 74 of the regulation states that restraints may be used in the case of an emergency or if there is a written agreement between the patient or representative and the medical or nurse practitioner responsible for the patient’s well-being. Reassessment of the need for the restraint is required once the restraint has been in place for 24 hours.[4]

More clarity needed
Careful reading of the MHA and AGA as well as the relevant (and limited) case law does not provide adequate guidance regarding how to deal with the gaps between these pieces of legislation when providing care for vulnerable adults. More clarity will be possible only once cases have been tested in court and there are significant revisions to the AGA. Until then, variation in practice among physicians is likely to remain the rule rather than the exception. In the meantime, physicians should remain aware of the legislative limitations described here and may wish to consult the following resources:
•    Vancouver Coastal Health ReAct, www.vchreact.ca: an education and response program to ensure that front-line health care providers understand their obligations to identify, assess, and report abuse, neglect, and self-neglect of vulnerable adults.
•    Seniors First BC (formerly known as the BC Centre for Elder Advocacy and Support), http://bcceas.ca: an organization of seniors, service providers, academics, and professionals working together to end abuse of older adults.
•    Public Guardian and Trustee of British Columbia, www.trustee.bc.ca: a body mandated to manage the legal, financial, and personal care interests of adults needing assistance in decision making.

Competing interests
None declared.

* Mrs Cader is a fictional, composite patient.

This article has been peer reviewed.

References Top

1.    British Columbia Ministry of Health. Guide to the Mental Health Act, 2005. Accessed 19 June 2017. www.health.gov.bc.ca/library/publications/year/2005/MentalHealthGuide.pdf.
2.    Adult Guardianship Act [RSBC 1996] Chapter 6. Accessed 19 June 2017. www.bclaws.ca/civix/document/id/complete/statreg/96006_01.
3.    Public Guardian and Trustee of British Columbia. A guide to court applications under Part 3 of the Adult Guardianship Act: Support and assistance for abused and neglected adults. 2015. Accessed 19 June 2017. www.trustee.bc.ca/Documents/adult-guardianship/A%20Guide%20To%20Court%20Applications%20Under%20Part%203%20of%20the%20Adult%20Guardianship%20Act.pdf.
4.    Community Care and Assisted Living Act, Residential Care Regulation [includes amendments up to B.C. Reg. 178/2016, September 1, 2016]. Accessed 19 June 2017. www.bclaws.ca/Recon/document/ID/freeside/96_2009.

Dr Marshall is a geriatric psychiatrist in Victoria and a clinical instructor in psychiatry for the Faculty of Medicine at UBC. Dr Cotterell is a geriatric psychiatrist in Victoria and a clinical instructor in psychiatry for the Faculty of Medicine at UBC. Dr Chan is a geriatric and consult-liaison psychiatrist at Vancouver General Hospital and a clinical professor of psychiatry in the Faculty of Medicine at UBC. Mr Scott is a social worker employed by Island Health as a clinical specialist for vulnerable and incapable adults. Mr Clements is a barrister and solicitor, health law and ethics consultant, and adjunct professor in the Schools of Nursing at the University of Victoria and the University of Northern British Columbia.

CONTENT

Abstract

Mental Health Act

Adult Guardianship Act

Clinical scenario

Legal and ethical questions

More clarity needed

Competing interests

References

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DISCUSSION

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