It has been almost a year now since the Alberta government gave royal assent to the Protection for Persons in Care Act. The stated purpose of this act is to provide protection against abuse for people being cared for in facilities such as seniors' lodges, nursing homes and hospitals.

At first glance, the Act looks impressive. Who could possibly oppose a law that protects the elderly and the sick?

Unfortunately, the Protection for Persons in Care Actis not what it seems.

We at the Alberta Federation of Labour (AFL) are certainly in favour of measures designed to shield our province's most vulnerable citizens from mistreatment and abuse. We might even concede that a law resembling the Protection for Persons in Care Act is needed.

But, after careful consideration, we have come to the conclusion that the Protection for Persons in Care Act is a deeply flawed piece of legislation. We believe members of the Legislature made a grave mistake when they voted in favour of the Act.

Our objections to the Act will be outlined in greater detail in the next section of this paper. But, briefly, it can be said we oppose the Act because it 1) unfairly singles out health care workers for punishment 2) provides no protection for people receiving care outside of institutions and 3) it ignores important legal traditions like ":due process.":

Of course, the law has already been passed. We cannot go back in time and change the result of the vote. But there are things that can be done to ensure that Albertans are not harmed by this poorly conceived and potentially dangerous law.

One potentially fruitful course would be to take action through the Working Group on Protection for Persons in Care. The Working Group was set up by the government earlier this year to assist in the implementation of the Act. For the past few months, the Working Group has been sporadically soliciting input from individuals and organizations -- with the notable exception of health care workers and the unions that represent them.

Obviously, our preference would have been for the government to solicit input before the Act was passed. But because that wasn't done we are prepared to work with the committee now. (As the old saying goes -- ":Better late than never.":)

As we see it, the Working Group has two options. On the one hand, they could look for ways to ":patch up": the Persons in Care Act. For example, they could recommend the introduction of regulations and procedures that would paper over the biggest holes in the law.

The second option would require more courage and vision. The Working Group could tell the government that the Act is too deeply flawed to be fixed by minor or cosmetic alterations. With this in mind, they could recommend that the government not proclaim the Act. This would have the effect of killing the law.

We realize that this is a radical proposal. And it is not one that we make lightly. We would not propose scuttling a law that has been duly debated and passed by the Legislature unless we were firmly convinced that such action is necessary. After reviewing the Act in detail, we are convinced that allowing the law to die would be in the best interests of Albertans.

At this point, readers may be wondering what we find so objectionable about the Act. What could possibly be so wrong with an Act designed to protect the sick and the elderly? In order to answer these questions, we have provided a list of our objections to Protection for Persons in Care Act.

Our Concerns

Our concerns about the Protection for Persons in Care Act fall into seven broad categories. By themselves, some of these concerns might not be enough to justify scuttling the law. But taken together, they add up to a law that is fatally flawed and potentially dangerous.

1) Too many patients excluded from protection

In section 1 (a) and (c) of the of the Persons in Care Act, information is given about who will be granted protection from abuse. The list includes patients at hospitals, seniors lodges and nursing homes. But nothing is said about those patients who receive medical or other services in their homes. Given that more and more Albertans have been moved into homecare programs as a result of hospital bed closures, it's clear the list of patients covered by the Act should be extended. The Act should cover people receiving homecare and people who receive treatment at private facilities or from private practitioners (like physical therapists, chiropractors etc).

2) Health care workers are unfairly singled out

Throughout the Act, it is assumed that health care workers are the ones most likely to abuse patients. We do not believe this a fair or accurate assumption. If the government is truly committed to stamping out the abuse of patients, the Act should also provide protection from systemic abuse. That is, the Act should make it possible for patients to take action against institutions and agencies as well as individuals.

Unfortunately, examples of systemic abuse and mistreatment have become all too common. Based on our experience, patients are much more likely to suffer mistreatment as a result of management decisions than as a result of actions by individual health care workers.

Over the past three years, we've all heard stories of patients forced to lie in their own excrement for hours. We've heard about patients forced to go for days without baths. And we've been told about hospitals and nursing homes where staff take too long to answer calls for assistance from patients.

In each of these cases, it's clear that patients have been mistreated or abused. But are these problems the fault of individual workers or has the abuse been caused by a poorly functioning health care system? We fear the Act, as currently worded, will be used to pass the buck. Individual health care workers will be blamed for problems caused primarily by government underfunding.

3) Fragmented lines of authority

Sections 1 and 6 of the Protection for Persons in Care Act explain who will be responsible for enforcing the Act. The big problem with the arrangements outlined in these sections is that there is no central authority. No one individual or agency is responsible of administering the Act. Instead, responsibility is fragmented between at least three (an possibly many more) government departments. Patients who wish to lodge a complaint can contact almost any government department. Or they could contact the police or any ":body or person authorized under another enactment.": (Sec. 2)

With all of these overlapping lines of authority, people will be left asking ":Who is in charge?": If the government is truly committed to making this kind of legislation work, they must establish a central authority that takes sole responsibility for the investigation of charges of abuse and mistreatment.

4) Penalties for victims

The Protection for Persons in Care Act makes it clear that all Albertans, whether they work within the health care system or not, are responsible for reporting suspected cases of abuse. If an individual or organization fails to report what they know -- even if it is just a suspicion -- they could face fines of up to $5,000 for an individual or $25,000 for an agency.

The problem with these provisions is that they are too broad. As currently worded, the Act seems to imply that even victims have a duty report abuse. This is reminiscent of the way sexual assault victims used to be treated when they refused, out of fear, to testify against their attackers. We don't think it was the intention of the Legislature that victims should face fines for not reporting their own abuse. Certainly the government doesn't stand behind a law that could be used to penalize victims!

5) Failure to provide remedies

One of the most glaring omissions in the Act is the lack of any remedies. As we have seen, the Act goes into great detail about the penalties and fines that will be levied against people who fail to report abuse. But absolutely nothing is said about what penalties, if any, will be imposed on people actually found guilty of abusing patients.

Will they face fines? Will they face criminal prosecution? If they are health care workers, will they be suspended or fired? The Act simply does not provide answers to these questions. Apparently disciplinary measures will be decided arbitrarily by whichever Minister is overseeing the investigation of a case. Our question for the government is this: how can anyone enforce a law that has no prescribed penalties nor suggested avenues for remedial action?

6) Lack of definition of abuse

It may seem surprising in a law that is supposed to protect people against abuse, but the Persons in Care Act does not include a definition of abuse. This is a problem. Without some kind of definition, individuals investigating alleged cases of abuse will find it difficult to maintain consistency in their judgements. Therefore a definition is needed. But it needs to be broad enough to acknowledge the realities of life in our health care system. The fact is that sometimes it is necessary for health care workers to physically restrain patients. And some legitimate treatments require the application of force. The definition of abuse must be worded careful so that health care workers do not become the subject of investigations as a result of carrying out their duties.

7) Investigation and discipline without due process

Our final objection has to do with the process outlined in the act for investigation and judgement. This process, as explained in sections 6, 7 and 8, is the greatest weakness of the Act. It is also it's fatal flaw. Based on this weaknesses alone the Act should be rejected.

The problem with the process for investigation and judgement is that it totally abandons our traditions of proper legal procedure. Under the Act, government ministers can take disciplinary action against both individuals and agencies without due process. There are no provisions for hearings by an impartial tribunal. There is no opportunity for an accused to face his accuser. There is no indication of the level of proof required to find a person guilty of abuse. There is no process for appeal. And, in cases involving unionized health care workers, there is no discussion about whether or not the Act would supercede rules for discipline outlined in collective agreements.

To make matters worse, investigators will be appointed at the whim of the Minister and there is no guarantee that these investigators will be appropriately qualified.

The implications of these sections of the Act are truly frightening. Under this law, government ministers will become investigator, judge and jury in cases of abuse. They will be given complete and arbitrary power over cases covered by the legislation. From our point of view, this is entirely unacceptable. It runs completely contrary to the concept of natural justice that lies at the heart of our legal system.

Conclusions and recommendations

For these reasons -- but especially because the Act unfairly singles out health care workers and runs contrary to our most cherished legal traditions -- we recommend that action be taken to ensure that the Protection for Patients in Care Act never comes into force.

As we have argued, this will require courage. The Working Group must tell the government that the Act is fatally flawed. They must point out the Act's weaknesses and explain that they are too numerous and too serious to fix through minor or cosmetic alterations. And they must urge the government to scuttle the Act by refusing to proclaim it.

There may, indeed, be a need for a law to protect patients from abuse. But this is not the one. It's time for the government to go back to the drawing board. It's time for them to start at the beginning. And maybe this time around they will solicit input before a bad bill becomes law.