Legal Definitions of Elder Abuse and Neglect

It is difficult in a relatively new and changing field to find agreement on a generic term to describe the phenomenon of Elder Abuse. Definitions are not only needed for "academic" purposes, definitions are needed in legislation and policy where they can compel certain action and direct resources. Cultural diversities complicate the debate on defining abuse even further.1

1.0 INTRODUCTION

1.1 Project overview

1.1.1 "Legal" definitions of elder abuse

This project assembles, analyses and compares legal definitions of elder abuse and neglect in order to lay a foundation for further law and policy development in this area in Canada. What are legal definitions of elder abuse? Legal definitions are documented in the diverse sources that create, or impact on, law and government policy. They may emerge out of, or be refined by, court cases. They may be stated explicitly in laws. They may be created by governments and appear in strategy documents and policy papers. They may come from law-related fields of practice, such as legal advocacy, criminal justice, human rights and police procedure.

Elder abuse and neglect is an interdisciplinary field of practice: it involves doctors, nurses, social workers, gerontologists, lawyers, trustees, bankers, police officers—just to name some of the professionals who come into contact with older adults who have been neglected or mistreated and are called upon to come up with some kind of appropriate response. The distinction between legal and other definitions of elder abuse—such as those emerging from a medical or health context—is fuzzier than one might expect at first glance, likely in part due to the interdisciplinary nature of the work. Legal definitions often borrow from definitions that are not strictly speaking legal.

Take, for example, the definition that appears in the Toronto Declaration on the Global Prevention of Elder Abuse (the Toronto Declaration):

Elder abuse is a single or repeated act, or a lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harms or distress to an older person.2

The Toronto Declaration is an international call to action jointly authored by the World Health Organization ("WHO"), the University of Toronto, and the International Network for the Prevention of Elder Abuse ("INPEA"). It was developed in a multi-disciplinary context. The Toronto Declaration adopts the definition originally developed by the U.K. organization Action on Elder Abuse.3 This definition does not emerge from a strictly legal source; however, this definition has been cited in a number of legal sources, such as court decisions and government documents.4 Moreover, the WHO is an agency of the United Nations, an international legal organization, and this definition is currently referenced in UN materials. Therefore, this definition is too significant and influential to ignore.

For the purpose of this project we adopt the following approach to "legal": if a definition emerges from a source that is not clearly legal, but is cited with authority in a legal source, then it is included as a legal source in this study.

On a more micro level, this dynamic relationship between legal definitions and social policy exists in the various countries we have examined. Thus we have included the definitions emerging from other influential elder abuse and neglect prevention networks in this paper. Law does not exist in a social vacuum. Rather, lawmakers are influenced by various communities and in fact have consulted broadly to inform policy in relation to elder abuse and neglect.5 This study reflects this dynamic.

1.1.2 Scope of research and methodology

Sources of material reviewed in the course of this study include:

The focus of this project is Canada, including all thirteen jurisdictions; however, this paper also compares and contrasts the Canadian approach with selective English-speaking jurisdictions with which we share colonial histories, social values and legal frameworks. The international review includes Australia, New Zealand, the United Kingdom, and South Africa—as well as Florida, Arizona, Illinois, California, New Mexico, Massachusetts and New York—American states known to be at the vanguard in terms of responding, and legislating in relation, to elder abuse and neglect.

This study melds traditional and non-traditional legal research strategies in order to thoroughly investigate the interdisciplinary field of elder abuse and neglect. Our approach involved legal research through print and electronic sources, contacting government, crown, public guardian and trustee, police and health authorities regarding existing policies, procedures and protocols, and interviews with select leading practitioners and academics working in the area of elder abuse and neglect.

While this paper is comparative in terms of approach, it is intended to be neutral in terms of commenting on the relative value of the diverse approaches to defining and responding to elder abuse and neglect encompassed within this report. The various jurisdictions reviewed differ widely in terms of the system they use to respond to abuse and neglect. Some governing bodies define and respond to abuse within the context of adult guardianship laws; others criminalize and define elder abuse through the creation of specific laws created to capture exclusively crimes involving older adults, effectively creating a crime (or crimes) of "elder abuse". Some regions within the countries reviewed prosecute crimes against older people utilizing existing general crimes (such as fraud, assault, sexual assault) and in those jurisdictions, the advanced age of the victim often becomes a factor relevant to the sentencing of the offender. Some jurisdictions define elder abuse and neglect in the context of laws that apply only to an institutional care setting, such that the relationship between older adults living somewhat independently and their abusers is governed by a completely distinct statutory framework. Even across Canada there is a great deal of variety in approach. Moreover, multiple approaches can be reflected in a single jurisdiction. For example, both the federal law (the Criminal Code) and provincial laws (such as adult guardianship legislation) apply in the British Columbia.

In each case the individual legal framework is the product of the particular social history of that community in a unique period of time in the history of agitation around elder abuse and neglect. A relative assessment of the merit of each legal framework is beyond the scope of this project. This study raises challenging questions about how to approach laws designed to respond to a similar phenomenon in unique social contexts. The systems are presented in order to situate definitions in context and will hopefully provide the reader with an introduction to legal aspects of elder abuse and neglect. However, the descriptions are cursory and by no means provide a thorough introduction to each institutional response to adult abuse and neglect. That would be a much larger, though worthy, project. This paper concentrates on definitions.

As this paper will demonstrate, regardless of the differences between communities and government systems, there exist a great number of similarities between existing legal definitions of elder abuse and neglect. Certain themes reappear across countries and legal system. One of the central questions is whether elder abuse is conceptually limited to relationships of trust. The INPEA definition cited at the beginning of this report illustrates a breach of trust approach. However, the scope of this paper is broader, including definitions that capture the abuse of strangers. Differences such as these, where they appear, illustrate the significant challenge an exhaustive and inclusive definition presents, and capture the controversies hidden within this umbrella term, which encompasses such diverse harms and victims.

1.2 Summary of findings

One of the richest sources of explicit definitions of elder abuse and neglect are policies, practice guidelines, protocols and strategy documents. At least one of those types of document exists in each of the countries we investigated. International human rights declarations are one of the oldest examples of statements regarding elder abuse. These definitions tended to be referenced in the more thorough discussions of elder abuse and neglect emerging out of the countries that were part of this review.6

Legislation that uses the specific language of "elder abuse" or "elder neglect" is rare. It appears to be found only in the United States, and largely in criminal laws. All but one of the U.S. jurisdictions we reviewed had passed legislation creating specific crimes against older adults and each of them used "elder abuse" in at least one statute. Outside the United States the same criminal behaviour would be captured by more general crimes, such as failure to provide the necessaries of life (criminal neglect), manslaughter, assault, sexual assault, theft, robbery, breaking and entering, and fraud. In those legal systems, the legal definition of elder abuse and neglect is implied in the language of judicial decision-making; however this source provides only a very partial definition.

All countries reviewed have passed non-criminal laws in response to, or in order to address, elder abuse and neglect. However, these statutes are either more broad or narrow in application: they apply to the larger category of "vulnerable adults" or "adults at risk" of abuse7 —a category that includes adults with developmental disabilities, people with serious illnesses and brain injury survivors—or apply strictly to residents of care facilities. The broader adult protection rules are generally located within adult guardianship legislation. As guardianship frameworks and other substitute decision-making regimes come into play only once an adult lacks the capacity to make her own decisions, these laws often do not apply to mentally capable vulnerable adults, and of course, a great number of older adults remain competent decision-makers.

In some jurisdictions, domestic violence legislation is the only legislation that uses the language of abuse. Evidently such legislation was drafted to address the more particular category of spousal violence. However, their scope of application includes harms committed on older adults in the context of family relationships and therefore these types of legislation become relevant to this project.

Most of the countries that formed part of this study were federations in which the power to pass laws connected to elder abuse and neglect exists at both the state and national level. Elder abuse does not fall exclusively to either domain. As a function of this overlap in powers in many countries both the federal and provincial or state legislatures have created laws that impact on the meaning of elder abuse and neglect. However, even at the state level, multiple definitions can be found. As a result of this diversity in legislative responses to the issue of elder abuse and neglect a number of laws and legal definitions relevant to elder abuse and neglect may co-exist within the same jurisdiction. For example, an assault committed by an elderly man against his elderly wife is an offence under Canada's Criminal Code (which applies to every province and territory), and where it exits within a province or territory, relevant domestic violence legislation would also apply to the same assault.