[1] Government of South Africa, Department of Health, National Strategy on Elder Abuse—Baseline Document (2000), online: http://www.doh.gov.za/docs/factsheets/guidelines/elders. Over the years "elder abuse and neglect" has emerged as the umbrella term used to denote the mistreatment of older adults, especially in international forums. However, the term "elder" has particular connotations in First Nations and Aboriginal cultures, referencing not strictly old age but rather a wisdom or leadership associated with age. In this sense, it may be a problematic term to speak of older adults broadly. This problem is not explored in this review of legal definitions of elder abuse and neglect. Rather, this paper examines existing definitions of this challenging concept, albeit noting alternative language that has developed to replace "elder abuse and neglect". The problem of unearthing a more inclusive term remains a worthy enterprise beyond the scope of this project.
[3] Action on Elder Abuse Bulletin, May-June 1995, No. 11. Cited in Missing Voices: Views of older persons on elder abuse WHO and INPEA, Geneva: World Health Organization, 2002 at 3; see also Action on Elder Abuse, online: http://www.elderabuse.org.uk/abuse.html.
[4] Government of the Australian Capital Territory. Meeting the Challenge of Elder Mistreatment: A Resource Guide for Home and Community Care Service Providers in the ACT, Government of Victoria; ONPEA, "What is Elder Abuse?", online: http://www.onpea.org/english/elderabuse/index.htm. The definitions of the Ontario Seniors' Secretariat and the Yukon Department of Health and Social Services' definition incorporate and expand upon this definition. See Ontario Seniors' Secretariat, online: http://www.ontario.ca/en/your_government/009886 [OSS]; and Yukon Department of Health and Social Services, Seniors, Seniors and Elder Abuse, "What is Abuse of Older Adults?" online: http://www.hss.gov.yk.ca/programs/social_services/seniors/elder_abuse.
[7] This category could be characterized as larger or smaller than "elder abuse." Although a number of court decisions contain quotations to the effect that all older adults are vulnerable, some people working in this area would take issue with the statement that all older adults are at risk of abuse. In this sense the category is narrower, rather than broader, than the category of vulnerable adults.
[8]Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3 at s. 91 and 92.
[9] Saskatchewan appears twice in the table because financial and physical abuses are addressed in different statutes. Nova Scotia appears twice as it possesses both adult protection legislation and a statute dealing with the care of adults 16 years of age and older living in care facilities under the Homes for Special Care Act and residential facilities under the Child and Family Services Act. See Appendix A for greater detail.
[10] The Adult Protection and Decision Making Act being Schedule A to the Decision-Making Support and Protection to Adults Act, S.Y. 2005, c. 21, Part Four: Adult Protection, s.58.
[11]Neglected Adults Welfare Act R.S.N.L., 1990, c. N-3, s.2.
[12]Family Services Act, S.N.B. 1980, c. F-22, Part III., s.34(2).
[13]Protection for Persons in Care Act, C.C.S.M., c. P144, s.1.
[14]Protection for Persons in Care Act, R.S.A. 2000, c. P-29, s.1.
[15]Protection for Persons in Care Regulation, R.S.N.S. 2004, c. 33, s.3(1).
[16] In Saskatchewan, The Public Guardian and Trustee Act, S.S. 1983, c-P-36.3, s.40.5(1) defines "financial abuse" as "the misappropriation of funds, resources or property by fraud, deception or coercion".
[17]Family Abuse Intervention Act, S.Nu. 2006, c. 18, s.2(6).
[18] Ibid., s.2(7).
[19] Ibid., s.1.
[20] Ibid., s.3(1)(g).
[21]Charte des droits et libertés de la personne, R.S.Q., c. C-12, s.48.
[22] R v. J.A.L., 2005 CanLii 47835 (NL P.C.) at para. 32.
[23]Criminal Code, R.S.C. 1985, c. C-46, s.718.2.
[24] [emphasis added]
[25] R v. Chappell, Oral Decision April 17, 2000 (S.C.T.D.) (P.E.I.), is the exception to this pattern. It involves a woman simply characterized by the Trial Court Judge as a "lay caregiver". As this case garnered local media attention we know that it involved the neglect of a 62-year old woman with multiple sclerosis by her 35-year old paid caregiver in a private home setting. See: "Woman Facing Elder Abuse Trial", The Journal-Pioneer (Summerside) Saturday, December 11, 1999 p.A3; Armstrong, Nigel "City Woman Faces Charges of Elder Abuse in Death", The Guardian (Charlottetown), The Province, Saturday December 11, 1999, p.A2; "Woman Pleads Guilty for Failing to Take Care of Elderly Person Under her Charge", The Guardian (Charlottetown), the Province, February 16, 2000, p.A2; "Tearful Accused Apologizes to Family of Dead Woman", The Guardian (Charlottetown), the Province, April 18, 2000, p.A8; Ryder, Ron, "Negligent Caregiver Sentenced to One Year in Jail and Probation", The Guardian (Charlottetown), the Province, April 20, 2000; Armstrong, Neil "Judge Rules Chappell Stays in Jail Pending Appeal in Death of Senior", The Guardian (Charlottetown), the Province, May 2, 2000, p.A3; "Relatives of Elderly City Woman Sue Caretakers Over Death" The Guardian (Charlottetown), the Province, May 4, 2000, p.A5; "Chappell Withdraws Appeal to Island Court: Woman had been sentenced to a year in jail for failing to provide the necessaries of life to Isabel Gerrard who died", The Guardian (Charlottetown), the Province, May 20, 2000, p.A2.
[26] These briefer summaries of fact appear here to illustrate the legal meaning of neglect and in particular the degree of poor treatment required to attract this label.
[27] R. v. Noseworthy, 2007 CarswellOnt 9604 (Ont. S.C.J.) [Noseworthy].
[28] R. v. Peterson, [2005] O.J. No. 4450 (C.A.), 203 O.A.C. 364, 201 C.C.C. (3d) 220 [Peterson].
[29] R. v. Nanfo, 2008 ONCJ 313, 78 W.C.B. (2d) 580, [2008] O.J. No. 2742 (Ont. S.C.J.) [Nanfo].
[60] R. v. Rockett, [2009] PEIJ No. 10, 2009 PECA 7 [Rockett].
[61] R. v. Watson 2007 NBQB 289 [Watson].
[62] R. v. Wall [2000] OJ No. 5447 [Wall].
[63] R. v. Evans 2003 NBQB 54 [Evans].
[64] Wall, supra note 62 at para 96.
[65] Carrigan, supra note 59 at para 24.
[66] Carrigan, ibid., para 28.
[67] Rockett, supra note 60 at para 18.
[68] Evans, supra note 63 at para 64.
[69] This section includes both policies and documents that inform policy, such as strategy documents, consultation papers, protocols and committee reports.
[70] Toronto Police Service, Policy and Procedure Manual, (R.O. 2007.12.28-1790) at 05-22.
[71] The Advocacy Centre for the Elderly, online: www.advocacycentreelderly.org [ACE].
[73] Joanne Preston & Judith Wahl, "Abuse Education, Prevention and Response: A Community Training Manual for those who want to address the Issue of the Abuse of Older Adults in their Community" Advocacy Centre for the Elderly (December 2002) at 2, online: http://www.advocacycentreelderly.org/elder/pubs.htm [ACE Abuse Education Training Manual].
[75] The British Columbia Centre for Elder Advocacy and Support, online: http://www.bcceas.ca [BCCEAS].
[76] Joan Braun, "Elder Abuse: An Overview of Current Issues and Practice Considerations" (Paper presented to the Continuing Legal Education Society of BC on Elder Law, May 2009) [unpublished].
[79] New Brunswick, Adult Victims of Abuse Protocols (New Brunswick, 2005), online: http://www.gnb.ca/0017/Protection/Adult/index-e.asp [Abuse Protocols]. This protocol is endorsed by the Ministers of Family and Community Services, Health and Wellness, Justice, Public Safety, Training and Employment Development and Minister Responsible for the Status of Women, and appears on the website of the New Brunswick Senior and Healthy Aging Secretariat.
[101] Vancouver Coastal Health (Re:Act), Act on Abuse and Neglect: A Manual for Vancouver Coastal Health Staff, (British Columbia) at pages 14, 29 and 45, online: http://www.vchreact.ca/about_program.htm.
[103] Adult Guardianship Act103, R.S.B.C. 1996, c. 6 at Part 3. This Act applies to abuse, neglect and self-neglect in a public place, the adult's home, a care facility or any other place except a correctional centre[AGA].
[105] Government of Saskatchewan, Steering Committee on the Abuse of Vulnerable Adults Report (Saskatchewan, 1997) at 1, online at: http://www.justice.gov.sk.ca/vasc.
[106] Adult Guardianship Act, R.S.B.C. 1996, c. 6.
[107] Joanne Preston & Judith Wahl, "Abuse Education, Prevention and Response: A Community Training Manual for those who want to address the Issue of the Abuse of Older Adults in their Community" Advocacy Centre for the Elderly (December 2002), online: http://www.advocacycentreelderly.org/elder/pubs.htm [Joanne Preston & Judith Wahl].
[125]Domestic Violence, Crime and Victims Act 2004, (U.K.), 2004, c. 28, online: http://www.opsi.gov.uk/acts/acts2004/ukpga_20040028_en_1 [DVCVA 2004]. This Act applies generally to England and Wales; sections 5, 7, 9, 17-21, 56 and Schedule 1 apply to Northern Ireland as well.
[129] Department of Health, Care homes for older people: national minimum standards and the Care Homes Regulations: 3rd Edition (2003), online: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/
DH_4005819 and www.cqc.org.uk/guidanceforprofessionals/socialcare/careproviders/
nationalminimumstandards.cfm [National Minimum Standards].
[130] National Minimum Standards, ibid.
[131] National Minimum Standards, ibid., 41.
[132]Adult Support and Protection (Scotland) Act 2007, A.S.P. 2007, asp 10, online: http://www.opsi.gov.uk/legislation/scotland/s-acts2007a [ASPA 2007]. In March 2007, the Scottish Executive published a strategy document entitled, "All Our Futures: Planning for a Scotland with an Ageing Population,"132 in which they state the intention of the Scottish Government, "to tackle the issue of elder abuse through the implementation of the Adult Support and Protection (Scotland) Bill", now in force.
[136] Department of Health and Home Office, "No secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse" (2000). Note: "This guidance is issued under Section 7 of the Local Authority Social Services Act 1970, which requires local authorities in their social service functions to act under the guidance of the Secretary of State. As such, this document does not have the full force of statute, but should be complied with unless local circumstances indicate exceptional reasons which justify a variation." Online: http://www.dh.gov.uk/assetRoot/04/07/45/40/04074540.pdf [No Secrets].
[140] National Assembly for Wales, In safe hands: Implementing adult protection procedures in Wales (2000) at paras. 7.4 & 7.6. "This guidance is issued under Section 7 of the Local Authority Social Services Act 1970, which requires local authorities in their social service functions to act under the guidance of the National Assembly for Wales. As such, this document does not have the full force of statute, but should be complied with unless local circumstances indicate exceptional reasons which justify a variation." Online: http://new.wales.gov.uk/topics/health/publications/socialcare/reports/insafehands?lang=en [In Safe Hands].
[141] In Safe Hands, ibid., 14-15.
[142] Pursuant to section 1 of the Health and Social Care Act 2008 (U.K.), 2008, c. 14, the Commission for Healthcare Audit and Inspection, the Commission for Social Care Inspection and the Mental Health Act Commission are dissolved and replaced with the Care Quality Commission, online: http://www.opsi.gov.uk/acts/acts2008a.
[164] Rosslyn Munro of the Caxton Legal Centre in Brisbane (Queensland) describes the broader purpose of the statute as follows, "the primary purpose of this Act is to regulate the use of Commonwealth funds in the provision of aged care services, which includes nursing home care, hostel care, and community aged care packages provided in the older person's own home. Reform Issue 81 (Spring 2002) at page 42-46.
[165]Aged Care Act 1997 (Cth), s 2-1(1).
[166] Ibid., Schedule 1 to the User Rights Principles 1997.
[167]Guardianship and Management of Property Act 1991 (A.C.T.), Guardianship Act 1987 (N.S.W.), Adult Guardianship Act 1988 (N.T.), Guardianship and Administration Act 2000 (Qld), Guardianship and Administration Act 1993 (S.A.), Guardianship and Administration Act 1995 (Tas.), Guardianship and Administration Act 1986 (Vic), Guardianship and Administration Act 1990 (W.A.).
[168]Adult Guardianship Act 1988 (N.T.), s. 20(1)(d), Guardianship and Administration Act 2000 (Qld) at s.27(1)(e), Guardianship and Administration Act 1986 (Vic) at s.28(2)(d). The Northern Territory does not mention exploitation.
[169]Guardianship and Administration Act 2000 (Qld) at ss.180 and 181.
[170]Guardianship Act 1987 (N.S.W.) at s.4.
[171]Guardianship and Administration Act 1993 (S.A.) at s. 76.
[172] Susan Kurrle and Gerard Naughtin, "An Overview of Elder Abuse and Neglect in Australia" (2008), Journal of Elder Abuse and Neglect, Vol. 20(2) at 110 [Kurrle and Naughtin].
[173] Aged & Community Services Australia, Elder Abuse: A Holistic Response and Background Paper (March 2006) at 2 [Aged & Community Services Australia].
[174] Kurrle and Naughtin at 110.
[175] Aged Care and Community Services Australia.
[176] Aged & Community Services Australia; Prevention of Elder Abuse Task Force, The Strategic Plan for the Prevention of Elder Abuse in Queensland (2001); Government of Southern Australia. Our Actions to Prevent the Abuse of Older Southern Australians; Office for the Ageing Department for Families and Communities (2007); Office of Senior Victorians Department of Planning and Community Development. Victorian Government Elder Abuse Prevention Strategic Implementation Plan 2006-09. This definition is also the working definition of the Elder Abuse Prevention Unit (Queensland) and Advocacy Tasmania (the Tasmanian government does not have a working definition).
[177] Alliance for the Prevention of Elder Abuse, Elder Abuse Protocol: Guidelines for Action (2006), Western Australia.
[178] Ibid., 3. Barbara Black. The Human Rights of Older People and Agency Reponses to Elder Abuse. Curtin. 2008 attributes this definition to the Association for the Prevention of Elder Abuse, at iv.
[179] Department for Communities, Government of Western Australia. Older People's Rights.
[180] New South Wales Government, Interagency Protocol for Responding to Abuse of Older People (2007) at 5.
[181] Ibid., 7.
[182] Australian Capital Territory Standing Committee on Health and Community Care, Elder Abuse in the ACT (2001), Legislative Assembly for the Australian Capital Territory, Report Number 11 at 9.
[183] Advocare, "Abuse Prevention" (2005) online: http://www.advocare.org.au/app.php. Advocare is an independent advocacy agency operating in Western Australia.
[184] Australian Network for the Prevention of Elder Abuse. ANPEA: Preventing elder abuse in an ageing world is everybody's business. Brochure. Cited in National Aged Care advocacy Program. Preventing Abuse of Older People. http://www.agedrights.asn.au/prevent/ANPEA.html
[185] Elder Abuse Prevention Project. Strengthening Victoria's Response to Elder Abuse 2005 at 12.
[223] OPA, ibid., s.1. This section has been a source of controversy due to its unequal application to men and women, which is considered by many to be discriminatory.
[232] Department of Social Development, Mothers and Fathers of the Nation: The Forgotten People—The Ministerial Report on Abuse, Neglect and ill-treatment of Older Persons (2003), online: http://www.welfare.gov.za/Documents/2001/March/elder.htm [Mothers and Fathers].
[233] S. v. Brandt [2004] ZASCA 120.
[234] S. v. Francis [1993] ZASCA 63.
[235] S. v. Shandu [1993] ZASCA 29.
[236] Ibid., para. 26.
[237] Ibid., 11-12, citing S. v. Tloome [1992] (2) SACR 30 (A).
[i] s. 44. Reasons for being unable to seek support include: "physical restraint", "a physical handicap that limits their ability to seek help", or " an illness, disease, injury or other condition that affects their ability to make decisions about the abuse or neglect". (return to report)
[iii]The Public Guardian and Trustee Act, S.S. 1983, c. P-36.3; amended in 2001, c. 33, s. 19. (return to report)
[iv] s. 1, definition of patient, the definition does not include a vulnerable person within the meaning of The Vulnerable Persons Living with a Mental Disability Act. Health facility is defined in s. 1 to mean a hospital designated by regulation under The Health Services Insurance Act, a personal care home designated by regulation under The Health Services Insurance Act or an institution or organization designated as a health facility by regulation. (return to report)
[v] "Nursing home" is defined in s. 1 as any premise maintained and operated for persons requiring nursing care or in which such care is provided to two or more unrelated persons. This definition does not include private or public hospitals, municipal homes or charitable homes. (return to report)
[vii] Ontario. Bill 140, An Act Respecting Long-term Care Homes, 2nd Sess., 38th Leg., 2007 (Royal Assent on 4 June, 2007). (return to report)
[viii] "Adult" is defined in s. 3(a) as a person who is or is apparently sixteen years of age or older. (return to report)
[ix] The Homes for Special Care Act, R.S.N.S. 1989, c. 203 covers care facilities; however, it is silent on the subject of abuse in care facilities. (return to report)
[x] Under s. 3(e) of the Act, the Minister of Community Services is the responsible Minister. In 2000 responsibility was transferred to the Minister of Health by Order in Council. (return to report)
[xi] The factors to be taken into consideration enumerated in s. 6(2) are: health, social, residential, economic, vocational, and educational, as well as conditions related to the person's abilities to cope with circumstances, make reasonable judgments and provide for his or her own security and needs. (return to report)
[xii] Defined in s. 2(a) as a person who is not a child within the meaning of the Child, Youth and Family Services Act. (return to report)
[xiii] The Minister of Social Services is named in s. 2(h), however responsibility is now with the Ministry of Health and Community Services. Per s. 3, the responsibility for administration and enforcement of the Act falls to an appointed Director of Neglected Adults under the control and direction of the minister. (return to report)
[xiv] s. 59(b) Reasons for being unable to seek support include: "physical or chemical restraint", "a physical or intellectual disability that limits their ability to seek help", "an illness, disease, injury, or other condition that affects their ability to seek help", or "any similar reason". (return to report)
