Legal Definitions of Elder Abuse and Neglect
8.0 CONCLUDING REMARKS
Legal definitions of elder abuse and neglect vary significantly as do the legal frameworks that exist to address this vast and complex problem.
In Canada, the United Kingdom, Australia and New Zealand, where elder abuse and neglect is defined mainly at the policy level, many themes are present. Australian agencies tend to limit the concept to mistreatment that occurs in the context of relationships of trust (family, friend, caregiver, financial representative). In New Zealand and some Canadian jurisdictions elder abuse is often characterized as a sub-class of family violence. In the United Kingdom, law and policy is moving away from the term "elder abuse and neglect", addressing elder abuse as part of the larger problem of mistreatment of vulnerable adults. Some Canadian provinces have also taken this route. In Québec and the Australian commonwealth elder abuse is often characterized as a human rights violation.
The exception to this rule appears to be America. Although adult protection services and associated legislation exists in most states, most of the American jurisdictions reviewed have criminalized elder abuse and neglect, and the terms "elder", "abuse" and other words that appear in offence descriptions are virtually exhaustively defined by legislation. Although this creates some certainty absent in other legal systems, it also results in fragmented definitions that may only become clear upon cross-referencing a number of statutory provisions, resulting in lengthy, complex definitions inaccessible to someone who is not a lawyer. American definitions, associated as they are with criminal offences, tend to require intention, whereas the definitions in other jurisdictions, which stem more from health-related and other arenas, tend to be silent on this issue, likely thereby encompassing both intentional and non-intentional acts.
As criminal law is generally a state responsibility, each American jurisdiction has been largely free to craft its own response to the problem of mistreatment of older adults. Similarly, as most of the countries we reviewed were federations, with powers devolved to states, province and territories, there is also a proliferation of divergent responses to adult protection.
Categories of abuse play an important role in definitions of elder abuse, with some laws and policies defining only types of abuse and containing no overarching definition. While there is some uniformity in the types—most lists include physical, sexual, emotional or psychological, financial and neglect—some categories appear less consistently: social abuse (usually Australia); systemic abuse (Canada and South Africa); abandonment (the United States); medical (the U.K.). Exploitation is also a key term in many U.S. penal codes, perhaps as a function of its reference in the federal Older Americans Act. In any event, the differences speak to the particular context out of which these definitions grew but also help to paint a picture of what might be the components of an exhaustive definition.
In terms of legislation, definitions of elder abuse are actually quite rare. In most jurisdictions the richest source of legal definitions of elder abuse and neglect is policy.
Judicial decision-making does not define elder abuse and neglect in any of the countries that formed part of this review. However, it does help to clarify what might distinguish "elder abuse" from the potentially broader category of all mistreatment of older adults—if there is indeed any distinction to be made. In Canada, the U.K. and South Africa, targeting vulnerable elderly victims and breach of trust responsibilities figured prominently in the jurisprudence.
Generally, the meaning of elder varies from age 50 to 65. In other jurisdictions where age is not mentioned, the term "elder" is not used, replaced by "older adult", "senior", "vulnerable adult" or "vulnerable elderly person".
This paper began with a single question and concludes with a great many more. The following questions may require consideration before selecting or drafting a definition of elder abuse and neglect:
- Does elder abuse occur outside of relationships of trust? In other words, should harms perpetrated by strangers on an older adult be captured by the term elder abuse?
- What is the conceptual relationship between elder abuse and neglect and dependency?
- Should an elder abuse definition name elder abuse as an abuse of power more broadly?
- Is it important to maintain a specific definition to name the mistreatment of older adults or would a broader reference to vulnerable adults be more appropriate? Is there value in conceptually isolating the abuse of older adults under the umbrella term "elder abuse" or "elder abuse and neglect"?
- What is the conceptual link between vulnerability and elder abuse and neglect? Is elder abuse limited to harms against only those older adults who are vulnerable? Or are all older adults somehow by definition vulnerable? Or is the notion of vulnerability strictly connected to the reprehensibility of crimes against older adults?
- Given its meaning in First Nations and Aboriginal communities, is "elder" an appropriate term for denoting older adults?
- Does "elder abuse" include all actions and inactions that harm older adults?
- What is the place of age in a concept of elder abuse? Should the concept be limited to victims aged 50, 60, 65 or is another approach more appropriate?
- Is neglect included in the concept of elder abuse? What about self-neglect?
- Is it important to characterize elder abuse as a human rights violation or is the language of harm or mistreatment adequate?
- Should elder abuse be limited to intentional actions?
- What is the conceptual relationship between elder abuse and domestic violence?
- Is the notion of targeting older adults for victimization key to a definition of elder abuse that will have relevance in a criminal context?
- Is the meaning of elder abuse reflected in types of harm specific to older victims, or to which older adults are especially vulnerable, such as a loss of independence, or a worsening of a physical frailty?
- Structurally, is elder abuse best described through an exhaustive definition that runs through the various types of abuse in detail or is a brief summary more useful?
- What types of abuse should be included in a thorough definition of elder abuse?
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