Legal Definitions of Elder Abuse and Neglect

2.0 CANADA

2.3 Policy69

In every Canadian jurisdiction except Nunavut at least one key organization/agency has developed or adopted a definition of elder abuse and neglect. For the most part, the definitions contain two components: a general definition of elder abuse followed by an enumeration of the types of abuse and neglect (for example psychological and physical). Some also contain lengthy descriptions of each type of abuse. A small number of documents simply define elder abuse with descriptions or definitions of the types of abuse. For the purpose of focusing our analysis, in the discussion below we often truncate the definition after the general statement, as it is this component of the definition that illustrates the uniquely "elder" aspect of the definition; whereas the type of abuse descriptions tend to be age-neutral. However, in some instances, the sub-definitions are what characterize the definition as an "elder abuse" definition; here, the list of types is included. This section on policy also contains a discussion of the less common types of abuse as they also shed light on the problem of characterizing elder abuse in an inclusive or exhaustive manner. The discussion below organizes and summarizes the policy definitions by highlighting emergent themes.

Structurally, the Toronto Police adopts a totally unique approach, defining a cluster of terms relevant to the definition:

The Policy & Procedure Manual for the Toronto Police Service ("TPS") includes a specific procedure for criminal investigations involving the "Abuse of Elderly or Vulnerable Persons," which outlines the best practices of the TPS for handling complaints of abuse of elderly or vulnerable persons.70 The procedure includes the following definitions of "abuse", "elderly person", "harm", "incompetent", and "vulnerable person":

Abuse
means harm done to anyone by a person in a position of trust or authority.

Elderly
means a person over the age of 65.

Harm
means physical abuse (includes sexual abuse), psychological abuse, financial abuse, neglect or any combination thereof.

Incompetent
means a person incapable of managing their day-to-day [sic] affairs, thus making them vulnerable to abuse.

Vulnerable person
means any adult who by nature of a physical, emotional, or psychological condition is dependent on other persons for care and assistance in day-to-day [sic] living.

2.3.1 Elder abuse and relationships of trust

One of the key distinctions between the definitions is whether elder abuse is limited to harms occurring in the context of a relationship of trust or applies more broadly to the mistreatment of older adults. The elder abuse definitions we reviewed fall into three categories: some explicitly limit the concept to harms perpetrated within relationships; some include all mistreatment of older adults; some keep the definition broad but include a brief statement of the relevance of relationships of dependency and trust.

2.3.1.1 Narrow definitions

One of the non-governmental agencies in Canada that has been the most active in defining and teaching about elder abuse is the Advocacy Centre for the Elderly in Toronto, ("ACE"). ACE is a charitable, non-government, community-based legal clinic that provides legal services to low-income seniors in Ontario.71 Their material reveals a number of similar definitions that narrow abuse to a relationship context. For example, their website states:

Elder abuse is harm done to an older person by someone in a special relationship to the older person. Elder abuse includes:

  • physical abuse such as slapping, pushing, beating or forced confinement;
  • financial abuse such as stealing, fraud, extortion, and misusing a power of attorney;
  • sexual abuse as sexual assault or any unwanted form of sexual activity;
  • neglect as failing to give an older person in your care food, medical attention, or other necessary care, or abandoning an older person in your care;
  • mental abuse as in treating an older person like a child or humiliating, insulting, frightening, threatening, or ignoring an older person.72

Elsewhere they state:

"Abuse"

Abuse as discussed in this manual and workshop is defined as any action, or deliberate inaction, by a person in a position of trust, which causes harm to an older adult.

A person in a position of trust is someone with whom the older adult has built a relationship with and has come, over time, and because of past actions, to trust. The person in a position of trust could be a spouse, a family member, a paid caregiver, a staff member at a long-term care facility or care/retirement home, etc.

Relationships are abusive when a person uses various tactics to maintain power and control over another person.73

The Government of Manitoba relies on a similar definition:

Elder Abuse
Elder abuse is any action or lack of action by someone in a position of trust that harms the health or well-being of an older person. Elder abuse can happen at home, in the community, and in acute and long-term care facilities. Abuse exists in many different forms. Abuse can be physical, psychological, or sexual. It can also exist in the form of neglect and financial exploitation.74

The Manitoba definition is somewhat unique in that it expands on the notion of trust by suggesting sites where these relationships may exist.

The Executive Director of British Columbia Centre for Elder Advocacy and Support ("BCCEAS"), an agency that also runs the Elder Law Clinic,75 recently defined elder abuse in this manner:

A simple definition of abuse is an action, or deliberate behaviour, by a person(s) in a position of trust, such as an adult child, family member, friend or care-giver, that causes an adult physical, emotional or mental harm or damage to, or loss of, assets or property. Contrary to newspaper headlines that highlight random acts of violence, abuse is most often perpetrated by a person in a position of trust or a family member. Also contrary to common belief, elder abuse is typically not a random act but is a systematic use of tactics to gain power and control over the victim. This applies regardless of the type of abuse, the main types being as follows:

  1. physical abuse,
  2. sexual abuse,
  3. emotional abuse,
  4. neglect, and
  5. financial abuse.76

This definition also includes very lengthy descriptions of physical, sexual, emotional and financial abuse as well as neglect that highlight some older adult specific indicators.

The Government of the Northwest Territories ("NWT") provides information and assistance to seniors on elder abuse issues through the Northwest Territories Seniors' Society. The Seniors' Society website further provides links to the Canadian Network for the Prevention of Elder Abuse, as well "Aging and the Law in Canada" available at www.canadianelderlaw.ca. Both these websites provide information on various seniors' issues, including elder abuse.

In considering elder abuse, Aging and the Law in Canada uses the language of "senior abuse" and states the following:

Senior abuse is a generic term referring to a wide variety of harms to older adults that are committed by a person or persons they know and would normally have a reason to trust. It is considered different than harms from strangers.77

The definition used by HealthLink BC is unique in terms of the emphasis on a care context and the delineation of categories of abuse:

Elder abuse refers to any of several forms of maltreatment of an older person by a caregiver, family member, spouse, or friend.78

There are three separate categories of elder abuse:

  • Domestic elder abuse usually takes place in the older adult's home or in the home of the caregiver. The abuser is often a relative, close friend, or paid companion.
  • Institutional abuse refers to abuse that takes place in a residential home (such as a nursing home), foster home, or assisted-living facility. The abuser has a financial or contractual obligation to care for the older adult.
  • Self-neglect is behaviour of an older adult that threatens his or her own health or safety. Self-neglect is present when an older adult refuses or fails to provide himself or herself with adequate food, water, clothing, shelter, personal hygiene, medication, and safety precautions.

All of these definitions narrow the concept of elder abuse and neglect to relationships of trust. In some countries, like Australia, this approach is more common. In contrast, in Canada, broader definitions encompassing stranger abuse are just as common.

2.3.1.2 Broad definitions

The notion of a breach of trust is absent from a number of other Canadian definitions. The definition supported by the Government of New Brunswick states the following with respect to the abuse of seniors:

Abuse is defined as any action/inaction, which jeopardizes another's health or well being.79

The Alberta Seniors Services Division of the Ministry of Seniors and Community uses the same definition.80 Similarly, the Public Legal Education and Information Service of New Brunswick ("PLEIS-NB"), a charitable non-profit organization committed to developing public legal educational products and services in order to promote access to and understanding of the legal system, 81 defines abuse and neglect of adults with disabilities and seniors as:

Abuse is any act or behaviour, which harms the person. 82

The Seniors' Council (Conseil des aînés)83 is a government agency under the authority of the Minister Responsible for Seniors for the province of Québec. It adopts the following definition of "les abus exercés à l'égard des personnes aînées"84 :

« une action directe ou indirecte destinée à porter atteinte à une personne ou à la détruire dans son intégrité physique ou psychique, soit dans ses possessions, soit dans ses participations symboliques (Michot, 1993) » et y ajoute la notion suivante :

« Par négligence on entend le manque d'un soignant à répondre aux besoins d'une personne âgée incapable de pourvoir à ses propres besoins. La négligence signifie lui refuser de la nourriture, de l'eau, des médicaments, des traitements médicaux, de la thérapie, des soins infirmiers, de l'aide ou de l'équipement thérapeutique, l'habillement, la visite de personnes importantes pour la personne âgée, ou encore ses droits. (Podnieks, 1990; Finkelhor et Pillemer, 1988; Pillemer et Wolf, 1986; Kosberg, 1993) ».85

This definition includes neglect.

All of these broad definitions are quite brief. They are comprehensive in that they include all potential harms committed against seniors, but in their brevity they may fail to capture unique aspects of elder abuse. If what distinguishes elder abuse from other forms of mistreatment is more than simply the advanced age of the victim, these definitions are ironically so broad as to become incomplete.

2.3.1.3 The significance of relationships

A number of definitions resolve the conflict between specificity and brevity in favour of an approach involving commenting on the significance of breach of trust in the context of elder abuse but leaving the definition open and broad. The Strategy for Positive Aging in Nova Scotia states:

[E]lder abuse is the infliction of harm on an older person. It involves any act, or failure to act, that jeopardizes the health and/or well-being of an older person. Such action or inaction is especially harmful when it occurs within a relationship where there is an expectation of trust. There are several types of abuse: physical abuse; sexual abuse; emotional abuse; violation of human/civil rights; financial abuse; and neglect.86

The Government of Newfoundland and Labrador also treats breach of trust as a type of elder abuse:

Elder abuse refers to actions that harm an older person or puts the person's health or welfare at risk. This often results from the actions of someone who is trusted or relied on by the victim.87

The Seniors Resource Centre of Newfoundland & Labrador ("SRC"), a not-for-profit, charitable organization dedicated to promoting the independence and well being of older adults in Newfoundland and Labrador through the provision of information as well as various programs and services, defines elder abuse as follows:

Abuse is any act or failure to act, especially within a relationship where there is an expectation of trust, that jeopardizes the health or well-being of an older person.88

The website of the Prince Edward Island ("PEI") Premier's Action Committee on Family Violence Prevention ("PACFVP") provides the following narrow relationship-focused definition:

Abuse of older adults is an abuse of power within relationships of family, trust or dependency. It always involves someone using their power over another person in a way that is hurtful. Abuse of older adults can include neglect, self-neglect and denial of civil and human rights.89

The definition of the Nova Scotia Department of Seniors defines "senior abuse (or elder abuse or abuse of older persons)" as:

Any action or inaction which endangers the health or well-being of an older individual

and

Any act or failure to act that endangers the health and/or well being of the older person.90

The Nova Scotia Department of Seniors definition also provides types of abuse descriptions and adds the following:

Much abuse occurs within relationships where there is an expectation of trust. Some of these relationships include:

  • in a family,
  • between a husband and a wife,
  • between friends,
  • between an older adult and someone they rely on such as an accountant, care worker, or
  • other paid person,
  • when someone is providing services in an older adult's home.

Not all abuse is a result of individual action and not all abuse occurs within a personal relationship. Sometimes older adults are targeted because the abusers think they will be easier targets.

Sometimes abuse is a result of how older people are treated at a societal level. Systemic abuse, for example, can happen when policies or practices take away a person's independence and dignity. This sometimes happens when other people are making decisions for the older person and may be rooted in ageism.91

In its efforts to raise awareness of elder abuse and elder abuse prevention, the Alberta Government has partnered with the Alberta Elder Abuse Awareness Network and is collaborating with other federal, provincial and territorial departments to develop and distribute information about elder abuse.92 The Alberta Elder Abuse Awareness Network ("AEAAN") is a province-wide partnership of several government agencies, organizations, and professionals working collaboratively to address the issue of elder abuse through increased awareness and support of a community response to elder abuse.93

On the AEAAN website, under "What is Elder Abuse", elder abuse is discussed and defined as:

Elder Abuse is any action or inaction by self or others that jeopardizes the health or well-being of an older person. An act of harm or the neglect resulting from a failure to act is especially detrimental when inflicted by those in a position of trust, power or responsibility.94

All of these definitions are inclusive, like the broad definitions, capturing wrongs committed by both strangers and people in positions of trust. They are conceptually rich, bringing into further focus the unique aspects of elder abuse.

2.3.2 Alternatives to the term "elder"

The definition on the Yukon Department of Health and Social Services website captures the range of references to older victims of violence:

What is Abuse of Older Adults?

Abuse of older adults refers to actions that harm an older person or jeopardize the person's health or welfare. Abuse of older adults is also known as senior abuse or elder abuse.

According to the World Health Organization, abuse and neglect of older adults can be a single or a repeated act. It can occur in any relationship where there is an expectation of trust or where a person is in a position of power or authority.

Abuse can be physical (e.g. hitting), emotional, verbal (e.g. name calling), financial (e.g. taking money or property), sexual and spiritual. Some types of abuse of older adults involve violation of their rights. Financial abuse is considered the most common form of abuse of older adults. Neglect can be part of abuse. Neglect involves not doing something, such as not providing the older person with food, shelter, medication, or care.95

Nova Scotia and the Northwest Territories96 reference "senior abuse" in their material. However, in government material addressing family violence, the Social Services division of the Department of Health and Social Services of the Northwest Territories speaks of "abuse of older adults". The Nova Scotia Seniors' Secretariat defines "senior abuse" as:

Abuse is any act or failure to act that endangers the health and/or well being of the older person. Such action or inaction is especially harmful when it occurs within a relationship where there is an expectation of trust.97

The New Brunswick Government speaks of "adult victims of abuse." PLEIS NB addresses elder abuse in the context of a publication entitled, "Abuse and Neglect of Adults with Disabilities and Seniors".

The Prince Edward Island Seniors Secretariat website contains information on World Elder Abuse Awareness Day, which uses the expression "older adult":

What is Abuse of Older Adults?

Abuse of older adults refers to actions that harm an older person or jeopardize the person's health or welfare. Abuse can be physical (e.g. hitting), emotional, verbal (e.g. name calling), financial (e.g. taking money or property), sexual and denial of civil and human rights. Some types of abuse of older adults involve violation of their rights. Financial abuse is [sic] considered the most common form of abuse of older adults.98

Three of the key agencies that respond to abuse of older adults in British Columbia use alternatives to "elder", likely due to their broader mandates to address abuses against all adults. Vancouver Coastal Health (VCH) launched the adult abuse and neglect response resource, Re:Act (re cognize, re port, re sources and re act on Adult Abuse and Neglect).99 Their mandate is to "provide education and clinical support to ensure that frontline care providers are aware of and understand their obligations in relation to the identification, assessment and reporting of situations involving abuse, neglect and self-neglect of vulnerable adults."100 They use the language of "vulnerable adults" and define abuse as follows:

Abuse (of vulnerable adults)

Abuse includes the deliberate mistreatment of an adult that causes:

  • Physical, mental or emotional harm, or
  • Damage to or loss of assets,

Abuse includes intimidation, humiliation, physical assault, sexual assault, over medication, withholding needed medication, censoring mail, invasion or denial of privacy, or denial of access to visitors.101

The British Columbia R.C.M.P., the only accessible R.C.M.P. policy, offers this definition:

Abuse of older adults refers to actions that harm an older person or jeopardize their health or welfare. Abuse can be physical, financial or psychological.102

The Public Guardian and Trustee ("PGT") of British Columbia paraphrases the definition of adult abuse, neglect and self-neglect in Part 3 of the Adult Guardianship Act103 (AGA):

Abuse is deliberate mistreatment that causes physical, mental or emotional harm, or damage to or loss of assets. It includes:

  1. intimidation
  2. humiliation
  3. physical assault
  4. sexual assault
  5. overmedication
  6. withholding needed medication
  7. censoring mail
  8. invasion or denial of privacy, and
  9. denial of access to visitors.

Neglect is any failure to provide necessary care, assistance, guidance or attention if that failure causes, or is reasonably likely to cause, within a short period of time, serious physical, mental or emotional harm, or substantial damage to or loss of assets.104

In Saskatchewan, neither legislation nor policy includes an explicit definition of elder abuse. However, in 1994, the Saskatchewan Departments of Justice, Social Services, Health and Labour formed an interdepartmental committee to study the "abuse of adults in vulnerable circumstances." This committee was later expanded to establish the "Steering Committee on the Abuse of Vulnerable Adults". In 1997, the Steering Committee released the Steering Committee on the Abuse of Vulnerable Adults Report105, which outlines the following definitions of abuse (as adapted from the B.C. Adult Guardianship Act106):

Abuse

Persons with disabilities and older adults experience various forms of abuse, including neglect.

Abuse occurs in domestic or institutional settings, public places or community environments. An abuser may be anyone in a position of trust or authority in an adult's life, such as a spouse, a parent, an adult child, another relative, a friend, a neighbour, a professional caregiver or a service provider. The precise definition of this abuse is still being debated and studied. Practical definitions of abuse have emerged from work conducted in Saskatchewan, Manitoba and British Columbia on protocol guidelines relating to the abuse of older adults. These protocol documents use a broad definition of abuse that can also apply to the abuse of persons with disabilities.

In an earlier publication ACE rejects the term elder in favour of the expression "older adult," and defines abuse of older adults as follows:

Abuse as discussed in this manual and workshop is defined as any action, or deliberate or deliberate inaction, by a person in a position of trust, which causes harm to an older adult.107

The term "elder" is not unilaterally invoked to reference the mistreatment of older adults. Some policies use the term "senior" or "older adult". Other sources use the potentially broader terms "adult victims of abuse" or "vulnerable adults".

2.3.3 Types of abuse

A component of most definitions is a list of types of abuse, often accompanied by descriptions of each of the categories of mistreatment. Almost every list includes physical, sexual, emotional and/or psychological and financial abuse. Many also define neglect. Still others add a description of self-neglect, though these descriptions, which necessarily involve harms against oneself, are not captured by the overarching definition of elder abuse emerging out of any of the materials we reviewed in Canada.

In terms of types of abuse the definitions of elder abuse vary greatly. Possibly the most comprehensive list of types of abuse is included in a publication of ACE.108 A Community Training Manual produced by Joanne Preston and Judith Wahl includes physical, emotional or psychological, and sexual abuse, financial abuse or exploitation, medical and medications abuse, neglect, systemic abuse and violations of civil or human rights. The inclusion of "systemic abuse" is rare. ACE defines this type of abuse as instances "when government or institutional policies and regulations create or facilitate harmful situations".109 Nova Scotia provides the more lengthy description of systemic abuse:

Not all abuse is a result of individual action and not all abuse occurs within a personal relationship. Sometimes older adults are targeted because the abusers think they will be easier targets.

Sometimes abuse is a result of how older people are treated at a societal level. Systemic abuse, for example, can happen when policies or practices take away a person's independence and dignity. This sometimes happens when other people are making decisions for the older person and may be rooted in ageism.110

The Yukon Government definition is notable for the inclusion of spiritual abuse:

Spiritual abuse or neglect means restriction or loss of a person's spiritual practices, customs, or traditions. It also includes using an older person's religious or spiritual beliefs to exploit; attacking a person's spiritual beliefs; and not allowing the older person to attend the church, synagogue, or temple of his or her choice. 111

Spiritual abuse is also defined in British Columbia R.C.M.P. material as:

The Alberta Elder Abuse Awareness Network includes medications abuse and violations of human rights, which it describes in this manner:

Medication
This is the misuse of an older person's medications and prescriptions. It can include:
  • withholding medication
  • overmedicating
  • sedation
  • not complying with prescriptions refills
Violation of Human Rights
This is the denial of an older person's fundamental rights according to legislation, the Canadian Charter of Rights and Freedoms or the United Nation's Declaration of Human Rights. Violations of human rights can include:
  • withholding information
  • denying privacy
  • denying visitors
  • denying religious worship
  • restricting liberty
  • unwarranted confining to a hospital or institution
  • interfering with mail113

A reference to human rights violations as a form of abuse appears in the materials of a number of provinces and territories. Given that the source of elder rights in Québec is a charter of rights it is not surprising that Québec includes as a type of abuse the violation of rights, which it described as:

Violation des droits de la personne/Violation du droit à la liberté:
Empêcher une personne âgée d'exercer un contrôle normal sur sa vie114

The Justice Department of Nova Scotia also includes abandonment and the "failure to assist in personal hygiene or the provision of clothing for a senior" as forms of abuse in a strategy document that defines abuse strictly according to type descriptions, without a broad summary statement.115 This approach of defining abuse with definitions of the types of abuse is adopted by a number of agencies.

The definition used by the government of Québec includes:

Abus social ou collectif: type d'abus lié à l'organisation sociale véhiculant des valeurs et des comportements âgistes, tels la négation de la violence à l'endroit des personnes âgées, la dévalorisation, le mépris envers les aînés, le langage irrespectueux et parfois infantilisant, le manque de structure et de support aux gens qui sont des aidants naturels, l'absence de politique sociale pour les gens âgés.116

Although the reference to social abuse is very common in Australia this appears to be the only Canadian reference to abuse under this heading.

Canadian policies illustrate the tension within elder abuse communities as to whether the concept of elder abuse is limited to breaches of relationships of trust or includes harms by strangers. They also present a theme evident in the U.K., which is a movement away from using the term "elder" in favour of broader expressions like "vulnerable adult". However, some policies use the language of seniors, which is not common to other jurisdictions that formed part of this review.

Another notable difference amongst policy definitions of elder abuse is a variety in references to types of abuse. The definitions of types of abuse are useful tools for gaining an understanding of the nature of elder abuse, for they further flesh out the character of older adult vulnerability. In some instances they help answer that question of what, other than chronological age, characterizes elder abuse as calling for a unique legal response.