V. Elder abuse and exploitation2017-03-03T18:30:48+00:00
“Elder abuse” has been recognised by governments in Canada and in jurisdictions such as Australia, the United Kingdom and the United States as a significant social problem requiring a legal response. The question of what form this response should take is a difficult one, and remains the subject of ongoing discussion and development.

Indeed, the very definition of “elder abuse” has been and remains controversial although some consensus has formed around identifiable categories and types of abuse:

The lack of a generally acceptable definition has spawned a wide variety of definitions of abuse and neglect, which, to this day, still generates controversy and debate. Nevertheless, most would agree on three basic categories of abuse and neglect: (1) domestic elder abuse; (2) institutional abuse; and (3) self-neglect or self-abuse. Most would also agree on the major types of abuse—physical, psychological,[133] and financial abuse. Beyond this classification, however, there is little agreement.[134]

Elder abuse includes, but is not confined to, a number of Criminal Code offences where the victim is an older adult. Relevant criminal offences include theft; assault; sexual assault; false imprisonment; failure to provide the necessaries of life to a dependent; fraud; misappropriation of funds by a person in a position of trust; and theft by power of attorney (section 331). The sentencing provisions in section 718 of the Criminal Code, providing that evidence that the offence was motivated by bias, prejudice or hate, based on age shall be deemed an aggravating factor for sentencing (718.2(a)(i)), are also important in this context. Section 718 also recognizes intimate partner abuse (718.2(a)(ii)) and abuse of a position of trust or authority in relation to the victim (718.2(a)(iii)) as aggravating factors.

The criminal law has unique and significant attributes as a response to elder abuse, but also important limitations. Treating instances of elder abuse as crimes, where the elements of the criminal definition are met, denotes the seriousness of the offence and the social opprobrium that attaches to it. The criminal law can also provide meaningful protection for victims by removing, restraining or incarcerating offenders and/or providing restitution.[135] Unless a relatively narrow definition of elder abuse requiring legal response is adopted, restricted to the elements of the offences set out in the Criminal Code, the criminal law alone may not be able to respond to the complexity of elder abuse, however. The “transactional model of crime that isolates and decontextualises violence… conceals the reality of an ongoing pattern of conduct occurring within a relationship characterised by power and control.”[136] The criminal paradigm, and the criminal law, cannot provide a complete response to elder abuse.

Unlike some American states, no province currently has an “elder abuse” statute. The types of elder abuse referred to above fall within the scope and application of a range of statutes that may apply to older adults but are not specific to the older demographic. The applicable provincial legislation may be categorised as follows:

· Domestic violence legislation (applying in the family context and to physical, sexual and emotional/psychological abuse and, less frequently, material exploitation/financial abuse, depending on the particular statute in question).[137] The objective of domestic violence legislation generally is to “reduce and prevent family violence and facilitate legal protection for victims by providing speedy civil remedies.”[138] Intervention in cases of domestic violence (as provided for in the legislation) will be self-generated by the victim.

· Adult protection legislation (applying in the family and non-familial context, to physical, sexual and psychological abuse and to self-neglect, and to material exploitation/financial abuse depending on the particular statute in question).[139] Applicability is generally limited to adults who are incapable or who cannot otherwise access assistance independently. In New Brunswick, uniquely, protection for elderly and disabled persons is provided for in the Family Services Act[140] (which also provides for child protection). The primary objective of adult protection legislation is to connect individuals with social and medical services as necessary. Adult protection legislation, in contrast to domestic violence legislation, provides for intervention initiated by third parties.

· Human rights legislation (Article 48 of Quebec’s Charte des droits et libertes de la personne[141] has been interpreted to provide broad protection to “aged and disabled persons” from exploitation). Unlike adult protection legislation generally, damages (as opposed to connection with services) are the available remedy. It applies in the family and non-familial context, to physical, sexual and psychological abuse and to self-neglect, and to material exploitation/financial abuse.

· Institutional abuse legislation (applying in the institutional context and, depending on the particular statute in question, dealing with physical, sexual and psychological abuse and to material exploitation/financial abuse).[142] Abuse is generally defined broadly. Institutional abuse legislation, like adult protection legislation, provides for intervention initiated by third parties.

Developing an anti-ageist approach to legislation has significance for elder abuse and exploitation in two distinct ways. Negative ageist attitudes and assumptions, on both the individual and the social level, contribute to elder abuse and exploitation. Existing legislation of general application such as domestic abuse violence or legislation that does not take the particular situation and needs of older adults into account is also ageist as it has the effect of excluding older adults from the scope of their protection. The legislation discussed below will be analysed with reference to both aspects of ageism.

A. Current legislation in Ontario

Ontario has relatively little legislation in any of the areas discussed above: no domestic abuse/violence legislation; no adult protection legislation; and no explicit/specific institutional abuse legislation. The “Residents’ Rights” (including the “right to be treated with courtesy and respect and in a way that fully recognizes the resident’s dignity and individuality and to be free from mental and physical abuse”) and reporting provisions of the Ontario legislation applying to nursing homes, charitable homes and rest homes are not “abuse legislation” in the same sense as the other statutes discussed in this section (and indeed do not include a definition of abuse) but are or may be applicable in abuse situations. [143] Similar to the institutional abuse-specific legislation considered here, the Ontario legislation creates a duty to report suspected abuse.

The Substitute Decisions Act creates a duty for the Public Guardian and Trustee to investigate where persons are alleged to be incapable and may suffer adverse effects to their person (s. 62) or property (s. 27). The Public Guardian and Trustee will act only where the person making the complaint is able to provide evidence of the alleged incapacity and the serious adverse effects which have occurred or may occur; in terms of response, the role of the Public Guardian and Trustee is to connect individuals with services.

The main thrust of Ontario’s response to elder abuse has been non-legislative; the development of a comprehensive (not explicitly legal) strategy. In 2002, the government introduced a “Strategy to Combat Elder Abuse.” The Strategy involves three main “planks”:

  • Coordination of community services;
  • Training for front-line staff; and
  • Public education to raise awareness

    The “Strategy to Combat Elder Abuse” was developed by the Ontario Seniors Secretariat (OSS) and implemented by the OSS in partnership with the Ontario Victims Services Secretariat, Ministry of the Attorney General and Ontario Network for the Prevention of Elder Abuse. Elder abuse consultants promote and support efforts to address and prevent elder abuse, and act as resources to justice and community service providers.

    The Strategy to Combat Elder Abuse also includes a “Prevention of Elder Abuse Policy and Program Lens,” which provides a standardised approach to evaluating policies, practices, and programs to test their support for the rights, dignity and safety of older adults. The Ontario Network for the Prevention of Elder Abuse has also launched a province wide hot line to provide information, referrals, and support for abused and at risk seniors.

    1. Evaluation

    The key question is whether the non-legislative approach taken in Ontario is adequate to take into account the needs of older adults victimized by abuse or exploitation, or whether legislation is required that would enable intervention in the situation. The question is controversial; it may be argued that intervention, in cases where an adult is not incapable and where no crime has been committed, would violate a person’s right to privacy and autonomous decision making protected by section 7. Others may argue that not providing for intervention in cases of abuse and exploitation is a violation of section 7 rights and takes away from the human dignity of the individuals affected and is, in any event, justified as “demonstrably justified in a free and democratic society” in the same way that domestic violence legislation is justified.

    a) Does the legislation reflect negative ageist stereotypes and/or paternalistic attitudes (explicitly or implicitly)? Is the policy or legislation based on the unarticulated premise that with age comes increasing incompetence and decreasing intellectual capacity?

    The non-legislated approach specifically avoids this problem. A criticism of legislation applying to elder abuse and exploitation where the adult is not incapable is that it effectively infantalizes older adults by equating them to children “in need of protection.” Where a person is incapable, the Substitute Decisions Act provides for intervention by the Public Guardian and Trustee, but incapacity must be established.

    b) Are there sufficient mechanisms provided for by the legislation to prevent or protect against the legislation being implemented in an ageist manner (including the acting-out of individual ageism, given the prevalence of ageist attitudes)?

    The key players in the system, in design and implementation, are organisations of long standing with particular knowledge of and expertise in elder abuse and exploitation, and their implementation of the policies can be expected to be actively non-ageist.

    c) Does the legislation respond appropriately to the real needs of older persons as a group (understanding that older adults are extremely diverse), recognising that older adults generally are situated differently from younger people and have different needs?

    It may be argued that, rather than “infantalizing” older adults as discussed above, legislation that applies to elder abuse and exploitation generally (and is not limited to the incapable) recognises that many (but not all) older adults are more vulnerable to abuse and exploitation than younger individuals and in fact are more likely to suffer this kind of harm. Refusing to recognise and provide for this real difference, pretending that older adults are “just like” younger ones and therefore just as “good,” is itself a form of discrimination. The debate can only be resolved through empirical research and greater knowledge about elder abuse and exploitation, and the effectiveness of different legislative and non-legislative approaches to the problem.

    B. Elder abuse and exploitation: Canadian legislative review

    Comprehensive “elder abuse legislation” of the kind which exists in some American states has been criticised for “attempting to merge concerns about many issues into one broad prohibition against mistreatment of the elderly.”[144] In this respect, “[r]esponses to elder abuse may be attempting to accomplish too much for too many persons.”[145]

    Canada’s provinces have taken a different approach. Different aspects of elder abuse may be dealt with or addressed within non-elder abuse specific legislation: legislation concerning domestic violence or abuse; institutional abuse legislation; and adult protection legislation for a (non-age specific) class of adults defined with reference to incapacity or the inability to independently access assistance. Article 48 of Quebec’s Charte des droits et libertés de la personne and the provisions of New Brunswick’s Family Relations Act applying to protection of the elderly from abuse are exceptional elder specific provisions within legislation of much broader application. Evaluation of legislation, and the identification of benchmarks, must therefore be carried out within these different categories: domestic violence legislation, adult protection, human rights legislation and institutional abuse legislation.

    1. Evaluation

    a) Does the legislation reflect negative ageist stereotypes and/or paternalistic attitudes (explicitly or implicitly)? Is the policy or legislation based on the unarticulated premise that with age comes increasing incompetence and decreasing intellectual capacity?

    Domestic violence

    Ageist, paternalistic or stereotypical assumptions about older adults is not evident in provincial domestic violence legislation except to the extent that domestic violence is defined with reference to the traditional nuclear family paradigm (parents and children) thereby leaving out other forms of domestic violence affecting older adults such as intergenerational and caregiver violence. This is more in the nature of invisibility (see analysis below) than stereotypical assumptions although stereotyping may be a source of this invisibility (the relevant connection perceived as one between violence and sexual relationships, as opposed to violence and the wider variety of intimate relationships).

    Adult protection

    Adult protection legislation is in place in the provinces of British Columbia (Adult Guardianship Act (Part Three),[146] Manitoba (Vulnerable Persons Living with a Mental Disability Act),[147] Nova Scotia (Adult Protection Act),[148] Prince Edward Island (Adult Protection Act)[149] the Yukon (Decision-Making Support and Protection to Adults Act, Schedule A, Part 4 Adult Protection)[150] and Newfoundland and Labrador (Neglected Adults Welfare Act).[151] Provisions for the Protection of the elderly are set out in New Brunswick’s Family Services Act[152] (Part III, Protection Services). None of these statutes refer to age or aged persons specifically with the exception of New Brunswick’s Family Services Act, which applies to both children and adults (elderly or disabled persons) in need of protection. An “Elderly person” is defined in the Act to mean one who has reached the age of sixty-five years, and, in the absence of positive evidence of age, means a person who apparently has reached that age. The other statutes mentioned here apply to persons who are unable to help themselves because of physical or mental infirmity or incapacity with no specific reference to age. Manitoba’s Vulnerable Persons Living with a Mental Disability Act provides protection for “vulnerable persons” defined so as to exclude persons developing infirmities or impairments in later life (“vulnerable person” is defined as “an adult living with a mental disability who is in need of assistance to meet his or her basic needs with regard to personal care or management of his or her property”; “mental disability” means “significantly impaired intellectual functioning existing concurrently with impaired adaptive behaviour and manifested prior to the age of 18 years [excluding] a mental disability due exclusively to a mental disorder as defined in section 1 of The Mental Health Act.”)

    Despite this non-age specificity, adult protection has been criticised as an inherently paternalistic approach. But to the extent that the legislation may incorporate paternalism it does not include an explicitly ageist assumptions, with the possible exception of the reference to “elderly persons” in the New Brunswick legislation.

    Human rights legislation

    Article 48 of Quebec’s Charte des droits et libertés de la personne does specifically mention age as a potential source of vulnerability and, therefore, need for protection: “Every aged person and every handicapped person has a right to protection against any form of exploitation” and that “[s]uch a person also has a right to the protection and security that must be provided to him by his family or the persons acting in their stead.” Article 48 has been applied by the Courts to confer a broad right of protection from exploitation in situations where a mentally capable older adult’s vulnerability has been exploited.

    The reference to age seems to imply a stereotypical equation of age with helplessness, but the provision has been interpreted by the courts so as to exclude that implication. The term “aged person” has been interpreted to have “no connotation other than to mean a person of an advanced age. Being an older person does not in itself [connote] a sense of dependency [or] vulnerability. These characteristics must be found rather in the very notion of exploitation. The legislature has signaled its intention to protect in this article two segments of the population.”[153]

    Institutional abuse legislation

    Some Canadian provinces have enacted legislation that deals specifically with abuse occurring in an institutional setting.[154] Institutional abuse legislation will apply to older adults as residents of care institutions or nursing homes. Assisted living or supportive housing legislation (although neither form of housing properly falls within the scope of institutional care) may also contain provisions that address the issue of abuse. Institutional abuse legislation does not refer specifically to older adults and the legislation cannot be said to incorporate or reflect ageist presumptions or stereotypes; the issue of how that legislation is applied by the individuals charged with applying it is a more significant site of ageism in this context.

    b) Are there sufficient mechanisms provided for by the legislation to prevent or protect against the legislation being implemented in an ageist manner (including the acting-out of individual ageism, given the prevalence of ageist attitudes)?

    A review of the case law reveals very little evidence of the legislation discussed above being used in an elder abuse context, with the exception of Quebec’s des droits et libertés de la personne. Adult protection legislation may also apply to self neglect/abuse, and review of the case law indicates that it is much more likely to be used for this purpose.

    Very little is known about how this legislation is applied in situations involving older adults experiencing abuse and exploitation by others. The absence of case law may indicate that, in fact it is not used in this context; on the other hand, the absence of case law may indicate the success of legislation, where it exists in resolving situations before they reach the courts. The distance between these very different interpretations is significant, and needs to be explored. Similarly, some suggest that adult protection laws providing for intervention in abusive situations actually exacerbate the abuse, while others have suggested that the very act of intervention and the penetration of secrecy is sufficient to defuse many abusive relationships. The discrepancy between these accounts is also extremely significant. Research focusing on other, extra-judicial sources of information is necessary to construct a meaningful picture of how the legislation discussed here is used in practice to deal with different types or aspects of elder abuse.

    c) Does the legislation respond appropriately to the real needs of older persons as a group (understanding that older adults are extremely diverse), recognising that older adults generally are situated differently from younger people and have different needs?

    Domestic violence legislation

    To the extent that domestic violence legislation is limited in scope and application to spousal and parent/minor child relationships, it is inadequate as a response to the range of domestic violence situations that are experienced by older adults.

    Nova Scotia’s Domestic Violence Intervention Act and Newfoundland and Labrador’s Family Violence Protection Act are perhaps the most restrictive in terms of scope (to whom the legislation applies), limited in application to cohabiting adults in a conjugal relationship and co-parents of children. The definition of “family members” (persons to whom the Act applies) given in Alberta’s Protection Against Family Violence Act (section1) is more expansive, including persons who are or have been “adult interdependent partners,” persons who are residing or have resided together in an “intimate relationship” and persons who are related to each other by “blood, or adoption or by virtue of an adult interdependent relationship.” The categories of adult interdependent partners or persons in “intimate relationships” may be interpreted as encompassing intergenerational abuse or abuse in the context of a non-family caregiving relationship (where the incidents of abuse fall within the definition of “family violence” given in the statute), although there is no reported case law to this effect. Manitoba’s Domestic Violence and Stalking Act also applies to broadly stated categories of “family”[155] and “intimate”[156] relationships (section 2(1)).[157] Manitoba and Saskatchewan’s legislation applies to persons in a family or intimate relationship who are cohabitants or who have been in a cohabiting relationship.

    The Protection Against Family Violence Act in the Northwest Territories refers specifically to a “parent or grandparent” of a respondent as a possible “applicant” under that Act.

    Nunavut’s Family Abuse Intervention Act defines “family abuse” as “when a person, a child of or in the care of a person, a parent of a person or another family member of a person is subjected to one or more of the acts or omissions listed in section 3 by another person with whom the person has:

    (a) a spousal relationship;
    (b) an intimate relationship;
    (c) a family relationship; or
    (d) a care relationship.[158]

    The relative broadness/narrowness of the scope of conduct or behaviour to which provincial domestic violence applies will also make that legislation more or less responsive to the situation of older adults.

    All domestic violence statutes apply to acts of physical (including sexual) violence and damage to property. Threats “creating a reasonable fear of property damage or injury to a family member” (the language used in the Alberta statute) are defined as a form of domestic violence in most provincial and territorial statutes[159] (excluding Saskatchewan, which defines family violence as “any intended or reckless act or omission that causes bodily harm or damage to property; forced confinement; or sexual abuse.”) Threats may be interpreted as a form of emotional or psychological abuse, although the association of threats with injury and damage (violence) appears to exclude other forms of psychological/emotional abuse that do fall within the social definition of elder abuse.[160]

    Some statutes include specific reference to psychological and emotional abuse in addition to threats of injury or damage. Manitoba’s legislation specifically includes “conduct that reasonably, in all the circumstances, constitutes psychological or emotional abuse” within its definition of “domestic violence” (given in section 2(1.1)) in addition to “threatened acts” to cause physical or property damage. Prince Edward Island’s Victims of Family Violence Act also includes specific reference to emotional/psychological abuse in addition to threats. The Nunavut statute’s definition of “family abuse” includes, specifically, “conduct that reasonably, in all the circumstances, constitutes mental or emotional abuse” (section 3). The Northwest Territories’ Protection Against Family Violence Act also includes “psychological abuse, emotional abuse… that causes harm or the fear of harm to the applicant, any child of the applicant or any child who is in the care of the applicant.”

    Neglectful conduct (“depriving a person of food, clothing, medical attention, shelter, transportation, or other necessaries of life”[161]) is referred to in the domestic violence statutes of the Yukon, Nunavut, and Newfoundland and Labrador. The Yukon’s Family Violence Prevention Act refers to “depriving a person of food, clothing, medical attention, shelter, transportation, or other necessaries of life.” Nunavut’s Family Abuse Intervention Act contains very similar language (“an intentional or reckless act or omission that unjustifiably or unreasonably deprives a person of food, clothing, shelter, medical attention, transportation or other necessities of life”), as does the Family Violence Protection Act in Newfoundland and Labrador (“the deprivation of food, clothing, medical attention, shelter, transportation or other necessaries of life.”)

    Threats of damage to property may be interpreted to apply to certain acts of financial abuse, although no reported cases apply this interpretation. Legislation in the Northwest Territories and Nunavut makes specific reference to “financial abuse” as within the definition of family violence (Northwest Territories) and family abuse (Nunavut). Section 1(e) of the Northwest Territories’ Protection Against Family Violence Act refers to (together with psychological and emotional abuse) “financial abuse that causes harm or the fear of harm to the applicant, any child of the applicant or any child who is in the care of the applicant.” The reference in Nunavut’s Family Abuse Intervention Act is to “conduct of any kind the purpose of which is to control, exploit or limit a person’s access to financial resources for the purpose of ensuring the person’s financial dependency” (section 3). The requirement of purpose, or motive, is interesting, and seems more aligned with the spousal abuse paradigm than the more generic reference to “financial abuse” in the Protection Against Family Violence Act, which seems more broadly applicable to financial abuse in the elder abuse context.

    Adult protection legislation

    The question of whether adult protection legislation responds adequately to the needs and situations of older adults will be controversial, and will turn on the question of whether older adults are a category of adult persons that requires special protection (the premise of section 48 of Quebec’s Charte des droits et libertés de la personne as described in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Brzozowski).[162]) Some would answer this question with a definite no; that the non-age specific limitation to persons suffering from incapacities and inabilities that create the inability to independently access assistance is essential (and that extending the ability of the state to intervene in cases of abuse, where adults are involved, would violate section 7 of the Charter of Rights and Freedoms). Others would agree with the Quebec approach, that older adults are a group in need of an additional mechanism for protection from exploitation, and that the idea of “vulnerability” inherent in this approach lies in the definition of exploitation (and not the category of age).

    Human rights legislation

    Quebec’s Charte des droits et libertés de la personne does explicitly mention older adults as a group in need of protection from exploitation specifically (as opposed to the more general abuse). “Exploitation” for the purposes of the Charte refers to any situation in which one person abusively takes advantage of the vulnerability and dependence of another to the detriment of the more vulnerable person’s interest.[163] In this respect the legislation strongly resembles the equitable doctrine of unconscionability, through which a court can set aside an otherwise enforceable transaction where it would be inequitable to give it effect because of one person’s exploitation of the vulnerability of another.[164] The purpose is twofold: to protect the vulnerable and to prevent enrichment through exploitation. An award of damages, including “moral” damages where appropriate, may follow a finding of exploitation under Article 48. This feature distinguishes Quebec’s human rights legislation from adult protection legislation generally, the purpose or objective of which is to connect the individual in need with the appropriate social and/or medical services (as opposed to the provision of damages).

    To the extent that one recognises that older adults are more likely to be subject to exploitation than other adults, Article 48 either uniquely recognises the real needs and situations of older adults generally, or internalises ageist assumptions. The extent of exploitation for this group is unknown and (using the Charte’s definition of exploitation) ultimately unknowable.

    Institutional abuse legislation

    Abuse is generally given a more inclusive definition in this context than in adult protection or domestic violence legislation, with explicit reference to emotional/ psychological abuse and material exploitation/financial abuse in addition to physical and sexual abuse. “Intention” is given as a requirement for abuse only in Alberta’s Protection for Persons in Care Act, which defines “abuse” as follows:

    · intentionally causing bodily harm;

    · intentionally causing emotional harm, including, but not limited to, threatening; intimidating, humiliating, harassing, coercing or restricting from appropriate social contact;

    · intentionally administering or prescribing medication for an inappropriate purpose;

    · subjecting to non‑consensual sexual contact, activity or behaviour;

    · intentionally misappropriating or improperly or illegally converting money or other valuable possessions; or

    · intentionally failing to provide adequate nutrition, adequate medical attention or other necessity of life without valid consent.

    “Abuse” is defined in Manitoba’s Protection for Persons in Care Act as “mistreatment, whether physical, sexual, mental, emotional, financial or a combination of any of them, that is reasonably likely to cause death or that causes or is reasonably likely to cause serious physical or psychological harm to a person, or significant loss to the person’s property.” In Nova Scotia, the definition of “abuse” is set out in the Protection for Persons in Care Regulations[165] as follows:

    (a) the use of physical force resulting in pain, discomfort or injury, including slapping, hitting, beating, burning, rough handling, tying up or binding;

    (b) mistreatment causing emotional harm, including threatening, intimidating, humiliating, harassing, coercing or restricting from appropriate social contact;

    (c) the administration, withholding or prescribing of medication for inappropriate purposes;

    (d) sexual contact, activity or behaviour between a service provider and a patient or resident;

    (e) non-consensual sexual contact, activity or behaviour between patients or residents;

    (f) misappropriation or improper or illegal conversion of money or other valuable possessions;

    (g) failure to provide adequate nutrition, care, medical attention or necessities of life without valid consent.

    (2) “Abuse” does not occur in situations in which a service provider carried out their duties in accordance with professional standards and practices and health facility based policies and procedures.

    British Columbia’s Adult Care Regulations provide that a “licensee must ensure that no person in care is subjected to neglect, emotional abuse, financial abuse, physical abuse or sexual abuse.”[166] All categories of abuse are given further, more concrete definition. “Emotional abuse” is defined as “any act, or lack of action, which may diminish the sense of well-being of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement.” Financial abuse is defined as “the misuse of the funds and assets of a person in care by a person not in care,” or “the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or their substitute decision maker.” Physical abuse in this context means “any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;” sexual abuse is defined to mean “any sexual behaviour directed towards a person in care by an employee of the licensee, volunteer or any other person in a position of trust, power or authority and includes any sexual exploitation whether consensual or not but does not include consenting sexual behaviour between adult persons in care.” Neglect is defined as “the failure of a care provider to meet the needs of a person in care, including food, shelter, care or supervision.”[167]

    2. Identification of benchmark Canadian legislation.

    Because of the division of “elder abuse” as a category between different kinds of provincial legislation, identification of a benchmark will include a consideration of all types of legislation, and the combination of benchmarks will provide the necessary extent of protection while avoiding the over-inclusiveness (and potential ageism) of specific “elder abuse” legislation.

    Domestic violence legislation that is inclusive of older adults and the kinds of relationships in which they may experience domestic abuse, defined broadly to include non-violent forms of abuse including exploitation, is (potentially) an extremely effective approach to elder abuse, in combination with the kinds of education strategy that the government of Ontario has undertaken. Nunavut’s Family Abuse Intervention Act, described above, is sufficiently broad both in terms of both to whom it applies and to what conduct/behaviours it applies.

    Limited adult protection legislation, as provided for by British Columbia’s Adult Guardianship Act Part 3, should be accompanied by human rights legislation similar to Quebec’s Charte Article 48 to provide protection from exploitation.

    British Columbia’s Adult Guardianship Act (Part 3) applies “whether an adult is abused or neglected in a public place, in the adult’s home, a relative’s home, a care facility or any other place except a correctional centre (section 45).” “Abuse” is defined (section 1) as “the deliberate mistreatment of an adult that causes the adult:

    (a) physical, mental or emotional harm; or

    (b) damage to or loss of assets,

    and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors.” “Neglect” is defined as “any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage to or loss of assets, and includes self neglect.”

    Where the circumstances (including vulnerability) required for “exploitation” are met, an additional level of protection is provided and is justified in this context. The response provided for (“moral” damages and the restoration of money or property lost through exploitation) involves a minimal level of interference with autonomy, unlike the loss of autonomy at stake in the determination of capacity or interference in living situations.

    Institutional abuse legislation should not include a requirement of intention, and should provide detail about the kinds of behaviours that will constitute “abuse”. All categories of abuse (neglect, emotional abuse, financial abuse, physical abuse or sexual abuse) provided for in British Columbia’s Adult Care Regulations[168] are given further, more concrete definition that is, at the same time, sufficiently broad to capture the reality of abusive behaviours experienced by older adults in institutional settings. “Emotional abuse” is defined as “any act, or lack of action, which may diminish the sense of well-being of a person in care, perpetrated by a person not in care, such as verbal harassment, yelling or confinement.” Financial abuse is defined as “the misuse of the funds and assets of a person in care by a person not in care,” or “the obtaining of the property and funds of a person in care by a person not in care without the knowledge and full consent of the person in care or their substitute decision maker.” Physical abuse in this context means “any physical force that is excessive for, or is inappropriate to, a situation involving a person in care and perpetrated by a person not in care;” sexual abuse is defined to mean “any sexual behaviour directed towards a person in care by an employee of the licensee, volunteer or any other person in a position of trust, power or authority and includes any sexual exploitation whether consensual or not but does not include consenting sexual behaviour between adult persons in care.” Neglect is defined as “the failure of a care provider to meet the needs of a person in care, including food, shelter, care or supervision.”[169]

    Ultimately, the question of whether legislation is a necessary component of an effective response to elder abuse and exploitation, in addition to non-legislative initiatives such as Ontario’s Strategy to Combat Elder Abuse, depends on the question of how, and to what extent, this legislation is actually used in the context of abuse and exploitation (as opposed to self-neglect). Aside from the Quebec human rights legislation there is little evidence on which to draw a conclusion. Certainly, however, the benchmark legislation described above at least potentially provides a powerful tool for response. Perhaps a provincial strategy to combat elder abuse, in connection with potentially effective legislation of this kind, will provide the most productive response, with the strategy raising awareness of the legislative tools and monitoring their effectiveness.

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