People with disabilities and older adults face disproportionately high rates of abuse and neglect.[214] The traditional approach to safeguarding against abuse and neglect for this group is to define them as ‘vulnerable’ or in need of protection, based on their demographic characteristics.  This has led in many instances to an overly-paternalistic approach which has undermined individual autonomy.  Our assessment is that current adult protection and mental health laws do not effectively meet the needs of people with disabilities and older adults in preventing and protecting against abuse and neglect, while at the same time promoting their full right to legal capacity.

H. Archibald Kaiser argues that, consistent with the social model of disability, the focus of mental health statutes must shift from coercion to the provision of supports and services.[215]  More specifically, we identify three main failures of legal frameworks and service delivery systems in relation to mental health services and in cases involving abuse and neglect.  These cases pose particular risks to the equal exercise and enjoyment of autonomy and legal capacity for people with disabilities who may be at risk of or cause harm to themselves or others:

·           There are significant gaps in access to and availability of appropriate community-based supports for people with intellectual, cognitive and/or psychosocial disabilities.  Unfortunately, solely because of a lack of such supports, many people end up in institutional care and/or, under current mental health laws, involuntarily placed in a psychiatric facility.  Both of these options, in our assessment, unduly restrict autonomy in the name of protection of individuals and the public.

·           There is a lack of appropriate safeguards to ensure that in situations of abuse, neglect, or harm to oneself or others, appropriate supports are provided and that procedures are in place to ensure responses that more effectively balance autonomy and protection interests.

·           Mental health law and service delivery are largely discriminatory in light of the CRPD.  That is, assessment of a ‘mental disorder’ is systematically used in legislative frameworks and service delivery to make determinations that restrict legal capacity.  These provisions and practices violate the CRPD requirements to recognize and protect the right to legal capacity without discrimination on the basis of disability.  Under the CRPD, disability cannot be used as a justification for restricting liberty and autonomy.

This section outlines a definitional and institutional framework to address these issues, grounded in a re-evaluation of current adult protection and mental health laws.

 

A.        Definition of Serious Adverse Effects and Who is Affected

While the terms ‘abuse’ and ‘neglect’ are used to describe the experience of people with disabilities and older adults, the terms are not concrete nor specific enough to guide interventions related to decision-making supports and exercise of legal capacity.  Thus we have decided to use the term found in Ontario’s Substitute Decisions Act for the purposes of describing when and how interventions should be triggered.  The term used in the Act is “serious adverse effects.”  This term has the advantage of not confusing presumed intent with outcome; that is, the focus is on what the person actually experiences.  As well, it does not trigger interventions on the basis of presumed risk in a situation, as mental health law usually does, without evidence that actual effects are occurring or may occur as a result.  In these ways, the term “serious adverse effects” constrains the discretion for intervention that many other terms allow, and thus more effectively protects autonomy.  The challenge is to develop a scheme of safeguards guided by this trigger that at the same time protect against what are unacceptably high rates of abuse and neglect of older adults and people with disabilities.

‘Serious adverse effects’ is defined in Ontario’s Substitute Decisions Act in relation to both property and personal care.  The definitions address two situations as follows:

·         Loss of a significant part of a person’s property, or a person’s failure to provide necessities of life for himself or herself or for dependants[216]

·         Serious illness or injury, or deprivation of liberty or personal security[217]

We would enhance the definition of serious adverse effects to include the criteria currently in Ontario’s Mental Health Act for involuntary committal to a facility for the purposes of psychiatric assessment.  Subection 15(1) of the Act states:

Where a physician examines a person and has reasonable cause to believe that the person,

(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

(c) has shown or is showing a lack of competence to care for himself or herself,

 

and if in addition the physician is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

 

the physician may make application in the prescribed form for a psychiatric assessment of the person.[218]

 

Drawing on the criteria in these two statutes[219], and with some revisions, we suggest a definition of serious adverse effects as follows:

A situation of serious adverse effects occurs when a person, as a result of his/her actions or those of others:

a)    Experiences loss of a significant part of a person’s property, or a person’s failure to provide necessities of life for himself or herself or for dependants; or

b)    Experiences serious illness or injury, and deprivation of liberty or personal security; or

c)    Has threatened or attempted or is threatening or attempting to cause physical and/or psychological harm to himself or herself; or

d)    Has behaved or is behaving violently towards another person or has caused or is causing another person to fear physical and/or psychological harm from him or her.

According to this definition serious adverse effects can attach to the individual in question as well as to others who are directly involved in the situation:  people who experience harm as a result of an individual’s actions; people who are attempting to support the individual; and/or people who are otherwise directly affected by the situation.  Responses and interventions to situations of serious adverse effects should take all of these individuals into account, while at the same time assuring the legal capacity of the individual in question.

 

B.       Adult Protection and Mental Health Laws: A Re-Evaluation of Current Responses to Serious Adverse Effects

In determining the appropriate framework for addressing situations of serious adverse effects, the principles of respect for choice and personal dignity, including rights to privacy and dignity of risk, always need to be balanced with the duty to ensure safety.  However, the balancing of these principles in both adult protection and mental health laws often tilts much too far in the direction of paternalism. The framework we present here is meant to redress this imbalance.

The historical approach to safeguarding against abuse and neglect for people with disabilities and older adults has been to define these groups as in need of protection.  Abuse and neglect legislation was designed to allow the state to intervene to take care of people.[220]  In general, it allows for state intervention in an adult’s life to provide a range of health, social and other services.[221] This has led in many instances to an overly-paternalistic approach which has undermined individual autonomy.  In the words of the Supreme Court of Canada, “[t]he corollary of a judicial determination that an adult is in need of protection is a corresponding limitation on that adult’s autonomous decision making and liberty.[222]

Nonetheless, abuse and neglect legislation has evolved in Canada over time, since its introduction in the 1970s.[223] While a ‘protectionist model’ still exists,[224] models in some jurisdictions focus more on an adult’s right to live at risk.[225]  While some laws address abuse and neglect in comprehensive, discrete legislation, others are more limited in scope.[226]

An example of overly paternalistic adult protection legislation is Nova Scotia’s Adult Protection Act, which is based on a best interests model.[227]  Subsection 9(3) is illustrative and states as follows:

Where the court finds, upon the hearing of the application, that a person is an adult in need of protection and either

 

(a) is not mentally competent to decide whether or not to accept the assistance of the Minister; or

 

(b) is refusing the assi