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New obligations for CPAs report maltreatment of seniors and persons in vulnerable situations

The Act to combat maltreatment of seniors and other persons of full age in vulnerable situations, which came into force on May 30, 2017, contains two provisions that specifically release professionals from their obligation of professional secrecy and authorize them to report situations of maltreatment of seniors and persons in vulnerable situations.

  • First, section 22, which amends the definition of “serious bodily injury” in section 60.4 of the Professional Code so as to authorize the lifting of professional secrecy to report a situation of maltreatment of a senior or person in a vulnerable situation.
  • Section 18.1 creates an obligation for health service providers and professionals (other than lawyers and notaries) to report situations of maltreatment of seniors or persons in vulnerable situations who are lodged in a residential and long-term care centre (CHSLD), who are under tutorship or curatorship or for whom a protection mandate has been homologated, despite professional secrecy.

What does this mean for CPAs?

In practising their profession, CPAs are less likely to witness physical maltreatment of seniors and persons in vulnerable situations. However, they are in a position to witness situations of financial abuse. Although the Act to combat maltreatment does not specifically address financial abuse of seniors and persons in vulnerable situations, this type of maltreatment may, in certain cases, result in serious physical or psychological injury. CPAs must therefore remain vigilant, as they may witness situations of maltreatment that they are obliged to report despite professional secrecy.

Identifying situations of maltreatment is not always easy, especially for CPAs, who are not trained to detect signs of psychological distress or injury. Together with the Minister responsible for Seniors and Anti-Bullying, the Order will develop adapted tools and training to help CPAs fulfil their new responsibilities.

When is the reporting of maltreatment authorized and when is it compulsory?

CPAs are obliged to report a situation of maltreatment in the case of a senior or person in a vulnerable situation who is lodged in a CHSLD, who is under tutorship or curatorship or for whom a protection mandate has been homologated.

In all other contexts, CPAs may report a situation covered by section 60.4 of the Professional Code. This provision applies in cases of preventing an act of violence that may lead to a “serious bodily injury”, that is, “any physical or psychological injury that is significantly detrimental to the physical integrity or the health or well-being of a person or an identifiable group of persons”, and where the situation generates a sense of urgency. According to the Minister responsible for Seniors and Anti-Bullying, financial abuse could, in certain cases, constitute an act of violence covered by this provision. The Order will specify at a later date the criteria enabling CPAs to identify situations that could be covered by the provision.

The Government may, by regulation, add an obligation to report situations of maltreatment of persons other than those currently covered by section 18.1, as long as they receive health services. It may thus expand the obligation to report maltreatment to persons who are lodged in health institutions other than CHSLDs.

To whom may or must CPAs report situations of maltreatment?

If the person who requires protection is lodged in a CHSLD or other health institution, CPAs are obliged to report a situation of maltreatment covered by section 18.1 to the health institution’s complaints commissioner. In all other cases, the situation must be reported to a police force.

Section 60.4 authorizes reporting to the person concerned or to a person who can come to his or her aid. If the situation is covered by both section 18.1 and section 60.4, CPAs are best advised to follow section 60.4 and report the situation to a relative of the person concerned who can come to the person’s aid, the Public Protector, the Public Curator or the Commission des droits de la personne, and comply with section 18.1 by reporting the situation to a police force.

In all cases, it is important to keep in mind that seniors and persons in vulnerable situations are entitled to dignity and respect. Whenever possible, CPAs should inform them of the steps they intend to take that concern them. In so doing, they will preserve the existing bonds of trust.

Are professionals protected?

Under the Act to combat maltreatment, no proceedings may be brought against a person who, in good faith, has reported maltreatment or cooperated in the examination of a report, whatever the conclusions issued following its examination. Unlike other legislation, the Act thus provides real immunity for persons who report maltreatment. Such persons also benefit from protection against reprisals provided by other laws, such as legislation shielding whistleblowers against disciplinary measures, dismissal, etc.

The Act does not stipulate any penalty for failing to report a situation of maltreatment covered by section 18.1. Professionals who are subject to this provision may, however, be subject to a civil liability suit if they fail to report a situation of maltreatment that has caused harm, or may be the subject of a disciplinary complaint for having failed to meet a legal obligation. In such case, they would not be protected by the immunity set forth in the Act, which applies only to proceedings brought against a person further to reporting a situation of maltreatment.

Claims that could result from the legislative provisions authorizing or obliging CPAs to report maltreatment are not specifically covered by CPAs’ group professional liability insurance plan, which was negotiated before the adoption of these provisions. CPAs must therefore notify the plan manager (ACPAI Assurance, 1-800-268-2630 or regimecollectif@acpai.ca) of any situation that they hesitate to report under the Act to combat maltreatment. The plan manager has confirmed that legal advisory expenses related to CPAs’ obligation of professional secrecy within the framework of application of the Act respecting maltreatment and other whistleblowing legislation are covered up to $10,000.

The Order will provide its members as soon as possible with information about how to fulfil their new obligations. It is currently continuing its efforts to persuade legislative authorities that the increased responsibility of professionals should be shared by lawyers and notaries, who are currently excluded from the obligation to report situations of maltreatment.

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