Elder abuse, nursing home abuse and nursing home accidents are becoming common terms as the Canadian population ages and the number of residents entering nursing homes increases. While many nursing homes do provide excellent care, far too many do not. Many Nursing Home and Long-Term Care patients reportedly suffer from nursing home abuse, physical and emotional abuse, financial exploitation and serious neglect.
An experienced Hamilton nursing home negligence lawyers from our firm will be able to help you and your family if your loved one is the victim of nursing home negligence, has been injured in a nursing home or is being unreasonably neglected. Everything starts with the investigation. Our firm will know how to handle your case no matter how your elderly relative was hurt or taken advantage of.
Statistics Canada (2010) tells us that seniors are the fastest growing age group in Canada. Elder abuse is a general term used to describe damaging acts toward vulnerable and elderly citizens and is fast becoming a common term as much of our population ages and enters residential facilities. Elder abuse and nursing home negligence can take place in many different ways – including physical, psychological or emotional abuse, neglect, sexual assault, and financial exploitation.
The National Seniors Council tells us that up to 10% of elder adults in Canada experience some type of abuse. The problem that we face, however is that incidents of elder abuse is difficult to gauge. This can be due to many factors such as under-reporting, the lack of support and loneliness of vulnerable seniors, confusion about what elder abuse really is, and a general lack of awareness, among other factors.
Elder abuse in Ontario can take many forms – most of which include financial exploitation, intentional infliction of abuse and neglect. Intentional forms of abuse includes emotional abuse, physical, psychological or sexual abuse and assault. The abuse can also take the place of unreasonable confinement, intimidation and punishment.
Nursing Home Neglect is also considered a form of abuse which can be considered, for example, the failure (whether intentional or not) to provide an elderly person with the care and services necessary to ensure he/she is free from pain and harm. Neglect can result in terrible consequences, ranging from:
Identifying nursing home abuse can be a challenging process, especially when a resident is not able to unable to speak for themselves and there are no other witnesses to the abuse.
It is not always easy to pinpoint if and how nursing home abuse or neglect has occurred, but there are telltale signs and symptoms of abuse such as sudden behavioral changes and/or unexplained injuries in elderly relatives. Physical abuse and neglect indicators can be sudden unexplained weight loss, emotional upset, agitation, being your loved one is seemingly withdrawn and non-communicative, confused, disoriented, defensive and the sudden hesitation to talk openly. Most elder abuse occurs in nursing homes, but there are many cases involving caregiver abuse that takes place where the senior lives. This type of emotional pain can be caused through intimidation and threats, humiliation, ridicule, ignoring an elderly person’s needs, as well as isolating and/or terrorizing the elderly person.
Other warning signs that your loved one is being abused could be things such as:
Nursing home neglect often occurs with the neglect of a patient’s basic needs, medical neglect, emotional or social neglect, and hygienic neglect. If you think your loved one is being neglected – here are some of the symptoms that you should watch out for:
Please keep in mind that that no one sign of financial exploitation should not mean this is happening. There is no “garden variety” type of warning signs that will shockingly pop-up. You can nonetheless consider the following signs to get a better picture of what may be happening and whether or not your loved one is suffering from financial abuse and exploitation:
Within the elder abuse context, sexual abuse in nursing homes is a hidden problem because it too often goes undetected and under-reported. Often times, residents who suffer strokes or other medical conditions which cause them to lose speech or motor skills make it very difficult to report abuse. For example, cognitively impaired residents are often unable to describe assault events, the fears or the feelings of helplessness that they feel. Warning signs of sexual abuse of your loved one, as reported by various physicians and experts can include:
There is no doubt that a nursing home for seniors home must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident who lives there. Most nursing homes have a duty to develop and implement written policies that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property. Any policies written policies have to be effective and put into action. Courts have found in the past that although facilities have had policies and procedures in place to prohibit sexual abuse, such policies were often not effective because of the lack of reporting by employees when the abuse occurred. In Ontario, facilities are required to report all violations of patient and resident abuse, including mistreatment, neglect or abuse, including injuries of unknown source.
Nursing homes in Ontario can be vicariously liable for the actions of its employees – meaning they can be held responsible for the negligent actions of it’s employees. Nursing homes in Ontario can also be the vicariously liable for the actions of other residents who sexually abuse a resident if the abuse can be proven. Nursing homes in Ontario can also be vicariously liable for independent contractors negligence. Nursing homes should no doubt take special precautions to limit liability for physical harm caused to residents by the failure of contractors to exercise reasonable care and abuse of residents.
It’s important that everyone hired by a nursing home be properly screened for any type of history of violent or aggressive behaviour toward staff or other residents, inappropriate verbal communication, allegations or charges of inappropriate sexual behavior, and of course, criminal checks. If homes do not under negligence may be argued in the context of negligent hiring of employees and independent contractors by the nursing home.
Negligent hiring occurs when the employer fails to adequately evaluate a potential nurding home candidate who, after hire, injures a third party such as an elderly resident. If the potential risk of harm to a third party could have been identified during a proper and thorough reference check, the employer nursing home may face liability for the third-party injury.
Nursing homes have a responsibility to provide a level of reasonable care to protect residents and provide them with a safe environment, if not, they can be found negligent and liable for damages.
In order to establish negligence against a nursing home, we as your lawyers must look into whether or not there was a duty of care owed to your loved one. There’s no doubt that in a nursing home- resident relationship, nursing homes have a positive responsibility to provide residents with care and provide them with a safe environment. This means that the nursing home facilities have a duty to take reasonable steps to prevent abusive acts.
Once a duty of care is determined, there must be a breach of that duty of care between the nursing home and your loved one in order for negligence to be found, a Court must then determine what the defendant nursing facility should have or could have done to protect the resident which is a question of fact.
Lastly, there must be injury or damage to the plaintiff resident in order to prove negligence. Injury can be in the form of physical injuries, or mental suffering. Our Supreme Court has made it clear that expert evidence is not required to prove the mental injury. A judge or jury can still use other evidence to determine if the plaintiff has in fact suffered mental injury as a result of the negligent act – and such evidence is weighed on a balance of probabilities.
Often-times sexual abuse of a nursing home resident is alleged to have been committed by other residents. In this type of situation, insurers or the Province commonly argue that the sexual relationship between residents was consensual. However, a problem occurs when the question of capacity of resident becomes an issue. For example, did your loved one have the capacity to consent to the nature of sexual conduct? Typically, consent is established with mere proof that the victim understood the sexual nature of the act and voluntarily decided to participate in the sexual conduct however, people that are physically helpless, mentally incapacitated, suffered from a mental health issue or any other issue that rendered them temporarily or permanently incapable of making decisions will not be found to have provided consent to the sexual relationship.
The allegations of sexual abuse of a nursing home resident who suffers from Alzheimer’s disease can become quite complicated. There are over half 1 million Canadians and 4 million Americans living with Alzheimer’s disease. Alzheimer’s disease is divided into seven stages and a person with Alzheimer’s disease suffers from a decline in cognitive and physical abilities throughout the seven stages. At the seventh stage, individuals with Alzheimer’s lose the ability to speak and control movement. Ontario Nursing homes should no doubt have implemented policies to protect residents from unwanted sexual contact. Therefore, negligence may be found if a facility has not followed its own policies and procedures or implemented correct written policies to protect the vulnerable class.
Similarly, dementia results in residents suffering from impaired memories, communication difficulties, and are limited in their ability to make rational decisions.  Residents with dementia may in fact lack the legal capacity to consent to engage in sexual relations and if they do give consent, difficulties interpreting a resident’s true intentions arise given that residents with dementia often feel disorientated, suffer memory loss and a limited ability to communicate feelings and concerns which make it difficult to determine whether or not a a resident is actually consented the sexual relations, or is being abused.
Ontario nursing homes are legally required to provide a safe and nonabusive facilities to its residents. There’s no doubt that this will become more and more difficult as nursing homes will be forced to handle and accommodate baby boomers in the next several years. However, and equally as important, nursing homes will also be forced to handle and accommodate the elderly’s consensual sex lives as more and more patients get admitted over the next several years. With the elderly, comes diminished physical and mental capabilities, so where is the line drawn between consensual sexual activity while exercising one’s right to intimacy and nonconsensual sex due to an elderly resident’s inability to consent due to diminished capacity?
All in all, we do know that sexual abuse in nursing homes are the least detected, the least reported and the least acknowledged types of sexual abuse, making lawsuits alleging sexual abuse and a nursing home quite difficult. If your elderly loved one has been sexually abused in a nursing home – the best type of evidence, as difficult as it sounds, is video evidence. Video evidence can not only prove nursing home sexual abuse, but also physical abuse, emotional abuse, neglect, confinement, deprivation of medicine and food and the non-interference with self neglect and the failure to provide day-to-day needs. Consider when the CBC referred to nursing home footage in Ontario as a “horror movie”. A nursing home resident died in hospital for days after breaking his hip in a nursing home. Baycrest nursing home and reported that the man had fallen twice, when video evidence showed nursing home employees shoving the elderly man to the ground, and throwing a chair at him. In today’s day and age, one can easily buy small video cameras on Amazon.ca, such as this clock/video camera and record video footage of presumed abuse.
We always recommend to try your best to film the incident. Although this may be tremendously difficult to watch, there is no doubt that catching the abuse on video is the absolute surefire way to entitle your loved one and his or her family to compensation. There are many different cameras that you can get to set up in your loved one’s home or nursing home room – such as the Nest Indoor security camera found here or another comparable small wireless camera which can be purchased inexpensively.
If you suspect that your loved one is being abused or neglected please contact one of our Hamilton lawyers. We understand that when you put a loved one in a nursing home you trust that he or she will be cared for. If you notice signs of sexual abuse, physical abuse, emotional abuse, overall neglect or financial exploitation please contact one our Hamilton Lawyers by completing a contact form of by calling 905-333-8888. We would be happy to provide your family with a free no obligation consultation.