Legal Definitions of Elder Abuse and Neglect

EXECUTIVE SUMMARY

Definitions of elder abuse and neglect are abundant and varied. Legal definitions are complex: they are buried in lengthy and complicated statutes; implied, rather than stated directly, in the language of court decisions; and contradicted between policies. This report brings together these diverse sources of definitions of elder abuse and neglect, providing a comparative review and analysis of the legal definitions of elder abuse and neglect that exist in Canadian legislation, policy and case law, as well as in other countries with similar justice systems to that of Canada.

This paper is designed for a mixed audience. Anyone interested in learning more about definitions of elder abuse and the legal systems from which they emerge may find value in this study. This international review should provide policy analysts with a clearer perspective on how and where elder abuse and neglect is defined in existing legislation, policy and case law. For individuals with expertise in this area, this paper encapsulates themes and controversies in defining elder abuse and neglect, serving as a springboard for further critical discussion and problem-solving.

This study used both traditional and non-traditional legal research strategies in order to thoroughly investigate the subject of elder abuse and neglect. Our approach involved an exhaustive review of materials from a wide range of legal sources, including: federal and provincial legislation; policies, protocols and practice guidelines; civil and criminal case law; academic literature; government strategy documents, consultation papers and reports; and conference papers and other teaching materials.

Our legal research involved contacting government, crown, public guardians and trustees, police and health authorities regarding existing policies, procedures and protocols, as well as interviews with select leading practitioners and academics working in the area of elder abuse and neglect.

This paper reveals a number of key findings:

  1. Legal definitions of elder abuse and neglect vary greatly both between and even within countries. One of the central controversies in defining elder abuse is whether the concept is limited to mistreatment that occurs in the context of a relationship of trust, or captures harms committed by strangers as well.
  2. Legislation using the specific language of "elder abuse" or "elder neglect" is rare. A number of the legal frameworks that exist to address this issue address elder abuse and neglect as part of the larger problem of mistreatment of vulnerable adults. Though still widely used, the expression "elder abuse" is losing currency in some countries, such as the United Kingdom, raising the question of whether "elder abuse and neglect" is the appropriate expression to work with. In a number of jurisdictions, the term "elder" has been replaced by the term "older adult".
  3. Of all the legal systems we reviewed, only the United States has legislation specifically criminalizing elder abuse. Nearly every U.S. jurisdiction that we reviewed has enacted legislation creating specific crimes against older adults and uses the term "elder abuse". In other countries, crimes against older adults are captured by general crimes, such as failure to provide the necessaries of life (criminal neglect—Canada), manslaughter, assault and sexual assault, theft, robbery, breaking and entering, and fraud.
  4. Case law does not provide explicit definitions of elder abuse and neglect in any of the countries that formed part of this review. However, decisions do clarify what distinguishes elder abuse from other crimes. In most of the countries that formed part of this review, the courts emphasize the targeting of elderly victims, breach of trust, and vulnerability. Canada follows this approach.
  5. All countries reviewed have passed non-criminal legislation in response to, or in order to address, elder abuse and neglect. However, the statutes vary and the legal frameworks are diverse. In Canada, for example, provinces and territories have responded to the abuse and neglect of adults through a variety of approaches, including, adult protection and guardianship legislation, legislated protection for adults living in residential care, domestic violence legislation and human rights legislation.
  6. Although more difficult to locate, one of the richest sources of definitions of elder abuse and neglect are policies, practice guidelines, protocols and strategy documents.
  7. The internal structure of definitions is also varied. A number of sources rely on a general statement of the meaning of elder abuse and neglect. Other definitions construct a definition of elder abuse out of examples. Lists of types of abuse (psychological, physical, sexual) figure prominently in definitions but the lists are not consistent. Although physical abuse appears in every list, other categories of abuse, such as social abuse, institutional abuse, systemic abuse, isolation and exploitation are rarer. At the country level there are some patterns in terms of what categories of abuse are included. For example, social abuse is cited often in Australia; exploitation comes up in U.S. material.

While approaches to defining and addressing elder abuse and neglect vary across jurisdictions, there are many similarities between existing legal definitions as well as recurring themes. Although the focus of this paper is definitions, by illustrating the diversity in legal approaches to elder abuse and neglect, this study raises challenging questions about how to craft a legislative response to the issue of elder abuse and neglect.

This study concludes with more questions than answers, culminating in a comprehensive list of questions policy-makers would be advised to consider prior to adopting or drafting a legal definition of elder abuse. Readers focused on this problem may choose to fast forward to the final pages of this report. For those interested in a broader introduction to the subject, country profiles form the bulk of this paper and provide a more detailed comparative analysis of legal definitions of elder abuse and neglect.

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