Critical Incidents, Complaints & Whistleblowing
Long-Term Care

There must be a written policy to promote zero tolerance of abuse and neglect of Residents. This policy must be communicated to all staff, Residents and substitute decision-makers. This policy must comply with the Regulation and the Home must ensure compliance with the policy.

At a minimum, the policy must meet all of the following

• State that abuse and neglect are not to be tolerated
• Clearly set out what constitutes abuse and neglect
• Provide for a program for preventing abuse and neglect that complies with the Regulation
• Contain an explanation of the duty under section 24 of the LTCHA to make mandatory reports
• Set out procedures for investigating and responding to alleged, suspected or witnessed abuse and neglect of Resident
• Set out the consequences for those who abuse or neglect Residents

Section 23 of the LTCHA requires the Home to immediately investigate and take appropriate action relating to every alleged, suspected or witnessed incident of abuse of a Resident by anyone and incident of neglect of a Resident by the Home or its staff that is known by or reported to the Home. The results of the investigation and the action taken must be reported to the Director. Section 104 of the Regulation sets out the information that must be included in this report.

Any person who has reasonable grounds to believe that a Resident has been or may be abused by anyone or neglected by the Home or staff that resulted in harm or a risk of harm to a Resident must immediately report this suspicion to the Director under section 24 of the LTCHA.

Section 25 of the LTCHA requires the Director to conduct an inspection or make inquiries when he or she receives information regarding the abuse of a Resident by anyone or neglect of a Resident by the Home or staff that resulted in harm or a risk of harm to the Resident.

Section 96 of the Regulation specifies additional requirements for the Home’s policy to promote zero tolerance of abuse and neglect of Residents. The policy must meet all of the following:

• Include procedures and interventions to assist and support Residents who have been abused or neglected, or allegedly abused or neglected
• Contain procedures and interventions to deal with persons who have abused or neglected or allegedly abused or neglected Residents, as appropriate
• Identify measures and strategies to prevent abuse and neglect
• Identify how allegations of abuse and neglect will be investigated by the Home, including who will undertake the investigation and who will be informed of the investigation
• Identify the training and retraining requirements for all staff including training about the power imbalances between staff and Residents, the potential for abuse and neglect by those in a position of trust, power and responsibility for
• Resident care, and situations that may lead to abuse and neglect and how to avoid them

Notification Regarding Incidents

A Resident’s substitute decision-maker, if any, and any other person specified by the Resident must be notified as follows:

• Immediately when the Home becomes aware of any alleged, suspected or witnessed incident of abuse or neglect that has caused physical injury or pain to the Resident or that caused distress to the Resident that could be harmful to the Resident’s health or well-being
• Within 12 hours when the Home becomes aware of any other alleged, suspected or witnessed incident of abuse or neglect

The Resident and the Resident’s substitute decision-maker, if any, must be notified of the results of an investigation by the Home under section 23 (1) of the LTCHA as soon as the investigation is completed. The Home is not required to, but may notify a person of anything under this section if there are reasonable grounds to believe that the person is responsible for the abuse or neglect.

If a Resident wants a person notified about an incident of abuse or neglect, the Home must notify that person (unless there are reasonable grounds to believe that the person is responsible for the incident). A Resident is not required to specify a person to be notified.

In the case of abuse or neglect, a Home must notify a Resident’s substitute decision-maker – even if that person has indicated that he or she does not wish to be notified (unless there are reasonable grounds to believe that the person is responsible for the incident). The requirement to notify a Resident’s substitute decision-maker applies even if the Resident has indicated that he or she does not wish to have the substitute decision-maker notified.

Police Notification

The appropriate police force must be notified immediately of any alleged, suspected or witnessed incidence of abuse or neglect of a Resident that the Home suspects may constitute a criminal offence. Key Considerations:

The Home’s policy to promote zero tolerance of abuse and neglect of Residents may include procedures and protocols for staff to follow in complying with the requirement to notify police. The Home may wish to consult with its local police force to develop appropriate procedures and protocols.

The Home is required to notify the police even if a capable Resident asks that the police not be called. There are no exceptions to the requirement to notify the police if the Home suspects that the abuse or neglect may be a criminal offence.

In some circumstances, it may be immediately clear from the outset of an incident that police must be called. In other circumstances, the Home may only suspect that a criminal offence has occurred once the Home has had time to investigate the incident. Once the suspicion arises, the Home must call the police.

Evaluation

The effectiveness of the Home’s policy to promote zero tolerance of abuse and neglect of Residents must be evaluated at least once every calendar year to identify changes and improvements required to prevent future occurrences. Every incident of Resident abuse or neglect must be analyzed promptly after the Home becomes aware of it, and the results of the analysis must be considered in the evaluation. The changes and improvements identified in the evaluation must be implemented promptly.

A written record of the annual evaluation must be prepared promptly and include the changes and improvements required to prevent future occurrences, the date that the changes or improvements were implemented, the date of the evaluation, and the names of the persons who participated in the evaluation.

Reporting and Complaints

Sections 21 and 22 of the LTCHA and sections 100 to 102 of the Regulation set out the requirements that the Home must meet when establishing procedures for initiating and dealing with complaints.

• The Home must have written procedures for initiating complaints to the Home and for how the Home deals with complaints
• Written complaints to the Home about a Resident’s care or about the operation of the Home must be sent immediately to the Director

“Written” complaints include written notification in any format, including anything handwritten, such as letters, notes, correspondence, e-mails, facsimile documents and text messages.

Regulatory Requirements

The written complaint procedures required under section 21 of the LTCHA must incorporate the requirements of section 101 of the Regulation.

Dealing with Complaints

Every written or verbal complaint made to the Home or a staff member concerning the care of a Resident or the operation of the Home must be dealt with as follows:

• The complaint must be investigated and resolved where possible
• A response must be made to the person who made the complaint, indicating what the Home has done to resolve the complaint, or that the Home believes the complaint to be unfounded and the reasons for this belief. This response must be provided within 10 business days of the receipt of the complaint
• Where the complaint alleges harm or risk of harm to one or more Residents, the investigation must commence immediately
• For those complaints that cannot be investigated and resolved within 10 business days, the Home must acknowledge receipt of the complaint within 10 business days of receiving the complaint and must include the date when the complainant can reasonably expect a resolution
• The Home must also provide, as soon as possible, a follow-up response that indicates what the Home has done to resolve the complaint, or that the Home believes the complaint to be unfounded and the reasons for this belief

Unless the complaint is a verbal complaint that the Home is able to resolve within 24 hours, the Home must keep a documented record of the complaint that includes all of the following:

• The nature of each verbal or written complaint
• The date the complaint was received
• The type of action taken to resolve the complaint, including the date of the action, time frames for actions to be taken and any follow-up action required
• The final resolution, if any
• Every date on which any response was provided to the complainant and a description of the response
• Any response made in turn by the complainant

The Home must review and analyze the documented record for trends at least quarterly, take the results of the review and analysis into account in determining improvements required in the Home, and keep a written record of each review and of the improvements made.

Licensee Must Investigate, Respond and Act

Every alleged, suspected or witnessed incident of abuse of a Resident by anyone or neglect of a Resident by the Home or staff that the Home knows of, or that is reported to the Home, must be investigated immediately. The Home must take appropriate action to respond to every incident.

The Home must report to the Director the results of every investigation into the above alleged, suspected or witnessed incidents, and must report on the appropriate actions taken to respond to such incidents. The report must be made as required by the Regulation

The licensee and its staff members should carefully review the definitions of abuse set out in the LTCHA and the Regulation.

It is important to note the following definitions in section 2 of the Regulation regarding Resident-to-Resident interactions (see pages 2-61 and 2-62 of this Guide for a fuller description of these definitions):

• “Emotional Abuse” means any threatening or intimidating gestures, actions, behaviour or remarks by a Resident that causes alarm or fear to another Resident where the Resident performing the gestures, actions, behaviour or remarks understands and appreciates their consequences.
• “Physical Abuse” means the use of physical force by a Resident that causes physical injury to another Resident. Physical force applied by one Resident against another would be considered physical abuse and trigger these reporting requirements only when the force results in physical injury.
• “Verbal Abuse” means any form of verbal communication of a threatening or intimidating nature made by a Resident that leads another Resident to fear for his or her safety where the Resident making the communication understands and appreciates its consequences.

Based on these definitions, not all Resident-to-Resident interactions that seem abusive require reporting to the Director. Homes and their staff members should ensure that when they consider reporting Resident-to-Resident interactions that the interactions fall within the definitions of abuse set out in the Regulation.

Even when a Resident-to-Resident interaction does not fall within the definitions of abuse, the Home must comply with the provisions of the Regulation dealing with Responsive Behaviours, Altercations and Other Interactions and Behaviours and Altercations (sections 53 to 55 of the Regulation) to minimize the risk of altercations and potentially harmful interactions between and among Residents

Licensees Who Report Investigations Under Section 23 (2) of the LTCHA

This section identifies the types of information that must be included in the report that the Home provides on the results of investigations and actions taken with respect to the abuse or neglect of Residents.

In making the report to the Director, the licensee must include the following material in writing with respect to the alleged, suspected or witnessed incident of abuse of a Resident by anyone or neglect of a Resident by the licensee or staff that led to the report:

• A description of the incident, including the type of incident, the area or location of the incident, the date and time of the incident and the events leading up to the incident
• A description of the individuals involved in the incident, including names of all Residents involved in the incident, names of any staff members or other persons who were present at or discovered the incident, and names of staff members who responded or are responding to the incident
• Actions taken in response to the incident, including what care was given or action taken as a result of the incident, and by whom, whether a physician or RN(EC) was contacted, what other authorities were contacted about the incident, if any, whether a family member, person of importance or a substitute decision-maker of any Resident involved in the incident was contacted and the name of such person or persons, and the outcome or current status of the individual or individuals who were involved in the incident
• Analysis and follow-up action, including the immediate actions that have been taken to prevent recurrence, and the long-term actions planned to correct the situation and prevent recurrence
• The name and title of the person making the report to the Director, the date of the report and whether an inspector has been contacted and, if so, the date of the contact and the name of the inspector

As noted in the Reporting of Abuse, Neglect and Other Significant Matters table (page 2-72), the Home must provide this report within 10 days of becoming aware of the alleged, suspected or witnessed incident, or earlier if required by the Director. If the Home cannot provide a report within 10 days that includes all of the information required, it must send in a preliminary report within 10 days and provide a final report within a timeframe to be determined by the Director.

Reporting Certain Matters to Director

Any person who has reasonable grounds to suspect that any of the incidents in the table below has occurred or may occur must immediately report the incident, as well as the information on which the suspicion is based, to the Director.

The requirement to report to the Director set out in section 24 of the LTCHA applies to every person.

The MOHLTC has an online reporting system for both mandatory reports and critical incidents (section 107 of the Regulation) that is used by the Home. Mandatory Critical Incident System (MCIS) forms should be used by the Home to file both the initial and follow-up reports for the types of incidents identified in the table above.

Any person who is aware of an incident listed in the table above and who does not have access to the Home’s Mandatory Critical Incident Reporting System should report using the toll-free Long-Term Care ACTION Line at 1-866-434-0144.

The MOHLTC’s normal business hours are Monday to Friday from 8:30 a.m. to 5:00 p.m. All other times and statutory holidays are considered “after hours”.

The MOHLTC’s current method for after-hours emergency contact by the Home is an after-hours pager.

Section 108 of the Regulation defines the term “misuse” of funding provided to a licensee for the purposes of mandatory reporting requirements in the LTCHA (paragraph 5 of section 24 (1) and paragraph 6 of section 25 (1)) as the use of funds provided by the MOHLTC or a LHIN for a purpose other than a purpose specified as a condition of funding or in a manner that is not permitted under a restriction that was specified as a condition of the funding.

Staff, volunteers, Residents, Residents’ family members or any other persons who have reasonable grounds to suspect a misuse or misappropriation of funding that has already occurred or may occur must report the suspected misuse to the Director (section 24 of the LTCHA). The reporting may be made by directly calling the toll-free Long-Term Care ACTION Line at 1-866-434-0144. Upon receipt of that information, the Director must have an inspector make inquiries or conduct an inspection (section 25 of the LTCHA).

Section 21 of the LTCHA and section 101 of the Regulation require the Home to have a documented complaints procedure.

Section 24 of the LTCHA does not require persons to report an assault on a staff member by a Resident. However, if a staff member or any other person is taken to hospital for an injury arising from such an assault, the matter must be reported as a critical incident under paragraph 4 of section 107 (3) of the Regulation. There may also be requirements to report staff injury to the Ministry of Labour.

A Resident is not required to report under section 24 of the LTCHA, but he or she may do so.

It is an offence for anyone, other than a Resident who is incapable, to include false information in a report to the Director.

Practitioners, including physicians (or any other person who is a member of a College under the Regulated Health Professions Act, 1991), drugless practitioners and members of the Ontario College of Social Workers and Social Service Workers, have a duty to report under section 24 (1) of the LTCHA, even when the report is based on confidential or privileged information. No action for making the report can be taken against a practitioner unless he or she acted maliciously or without reasonable grounds for the suspicion.

The following persons are guilty of an offence if they fail to make a report under section 24 (1) of the LTCHA (section 24 (5) of the LTCHA):

• The licensee or person who manages the Home under a management contract
• An officer or director of the corporation, if the licensee or person who manages the Home is a corporation
• A member of the committee of management of a Home or board of management of a Home approved under Part VIII of the LTCHA
• A staff member other than those exempted under section 105 of the Regulation
• Any person who provides professional services to a Resident in the areas of health, social work or social services work
• Any person who provides professional services to a Home in the areas of health, social work or social services work.

The following persons are guilty of an offence if they coerce, intimidate or discourage anyone from reporting, or authorize, permit or concur in a contravention of the duty to make a report under this section (section 24 (6) of the LTCHA):

• The licensee or person who manages the Home under a management contract
• An officer or director of the corporation, if the licensee or person who manages the Home is a corporation
• A member of the committee of management of a Home or board of management of a Home approved under Part VIII of the LTCHA
• A staff member other than those exempted under section 105 of the Regulation

Nothing in section 24 of the LTCHA abrogates any privilege that may exist between a solicitor and the solicitor’s client.

Complaints – Reporting Certain Matters to Director

The Home that receives a written complaint about a matter that the Home reports or reported to the Director under section 24 of the LTCHA must submit a copy of the complaint to the Director along with a written report documenting the Home’s response to the complainant under section 101 (1) of the Regulation. This documentation must be submitted as soon as the Home has completed its investigation, or sooner if required by the Director

Non-Application re Certain Staff

Contract staff or agency staff members who only provide occasional maintenance or repair services to the Home and who do not provide direct care to Residents are not subject to the offence provision for failing to report a matter to the Director as required under section 24 (1) of the LTCHA.

“Contract staff” refers to persons who work at the Home pursuant to a contract or agreement with the Home.

“Agency staff” refers to persons who work at the Home pursuant to a contract or agreement between the Home and an employment agency or other third party.

See section 2 (1) of the LTCHA for the definition of “staff” for the purposes of the LTCHA and the Regulation.

Whistle-Blowing Protection

It is an offence to retaliate, whether by action or omission, or to threaten to retaliate against someone for disclosing anything to the Director or an inspector or for providing evidence in a legal proceeding. Retaliation includes:

• Dismissing, disciplining or suspending a staff member
• Imposing a penalty on anyone
• Intimidating, coercing or harassing anyone

It is an offence to discharge or threaten to discharge a Resident or to subject a Resident to discriminatory treatment (including threatening any family member, substitute decision-maker or person of importance to a Resident that such action will be taken) because of anything that is disclosed to the Director or an inspector or for giving evidence in a legal proceeding, even if the Resident or other person acted maliciously or in bad faith.

“Discriminatory treatment” includes any change or discontinuation of any service to or care of a Resident or the threat to do so.It is an offence for any of the following persons to discourage a person from disclosing anything to the Director or an inspector or from providing evidence in a legal proceeding:

• The licensee or person who manages the Home under a management contract
• An officer or director of the corporation, if the licensee or person who manages the Home is a corporation
• A member of the committee of management of a Home or board of management of a Home approved under Part VIII of the LTCHA
• A staff member

It is also an offence for any of the above persons to encourage a person to fail to disclose anything to the Director or an inspector or to fail to provide evidence in a legal proceeding.

No legal action or other proceeding can be commenced against any person for disclosing anything to the Director or an inspector or for providing evidence in a legal proceeding unless the person acted maliciously or in bad faith.

Complaint to Ontario Labour Relations Board

This section sets out steps that a staff member can take if he or she believes that an employer has retaliated against him or her contrary to section 26 of the LTCHA. The staff member may have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if a collective agreement exists, or may file a complaint with the Ontario Labour Relations Board (“Board”).

Section 27 of the LTCHA sets out the powers of the Board in dealing with such a complaint.

The burden of proof before the Board that an employer or person acting on behalf of the employer did not contravene the whistle-blower protections under section 26 of the LTCHA rests on the employer or person acting on behalf of the employer.

Critical Incidents

Section 107 of the Regulation identifies the critical incidents in the Home that must be reported and sets out the requirements that the Home must follow for reporting these incidents to the Director.

Section 107 identifies the critical incidents that the Home must report to the Director immediately (including after-hours reporting if the incident occurs after normal business hours) and those that must be reported within one business day.

The MOHLTC’s normal business hours are Monday to Friday from 8:30 a.m. to 5:00 p.m. All other times and during statutory holidays are considered “after hours.” The MOHLTC’s current method for after-hours emergency contact is an after-hours pager.

Regardless of whether an incident must be reported immediately or within one business day, within 10 days of becoming aware of the incident (or sooner if required by the Director), the Home must make a written report that provides follow-up information regarding the incident and how the Home responded. Section 107 (4) of the Regulation sets out the types of information to be included in the follow-up report.

The MOHLTC has an online reporting system for critical incidents. The Home should use the MCIS forms to file the initial incident report and the subsequent reports which describe how the incident was handled and the outcome of the incident. Completing the full report using the MCIS will meet the reporting requirements set out in section 107(4) of the Regulation.

The Home must promptly notify a Resident’s substitute decision-maker or anyone designated by the Resident or his or her substitute decision-maker of any serious injury to or illness of the Resident. Notice must be provided in accordance with instructions provided by the persons who are to be notified.

As a transitional matter, the Home must report incidents (previously referred to as unusual occurrences or occurrences) that occurred before the LTCHA came into force on July 1, 2010 in a way that meets requirements under predecessor legislation (i.e., the Nursing Homes Act, Charitable Institutions Act, or Homes for the Aged and Rest Homes Act) and any agreements made under any of those Acts.

As a transitional matter, the requirements for reporting unusual occurrences or occurrences that were set out in the Long-Term Care Homes Program Manual continue to apply to incidents that occurred before the LTCHA came into force on July 1, 2010.