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Executive Summary of Report on |
This project originated from a request by the Age and Opportunity Elder Abuse Resource Centre of Manitoba that the Commission investigate the present state of the law relating to the abuse of elderly persons in Manitoba. In the early stages of its research, it became clear to the Commission that the issues in need of consideration were not limited to the area of elder abuse but rather to the more general provision of legal recourse to all victims of domestic violence.
At the outset, the Commission prepared a Discussion Paper on the issue of elder abuse and adult protection, and circulated it to interested parties for comment. This Report reflects the Commission's consideration of the responses to that Discussion Paper.
Elder abuse is merely one dimension of domestic violence, which includes the physical and psychological abuse of children and partners as well as the sexual abuse of children. Like other forms of family-related violence, elder abuse may take the form of physical, emotional, and financial abuse, the restriction or denial of rights and freedoms, and active and passive neglect. One portrait of a perpetrator is the pathological caregiver, who may be a substance abuser or suffer from psychiatric problems. A more recent portrait is the dependent adult child who lives at home and relies on aging parents for shelter, food, and money.
Little is known about the incidence of elder abuse, the occurrence of its various forms, or the relationship, gender, and age of its victims and perpetrators. Studies suggest, however, that material (financial) abuse is its most common form, with physical abuse much less frequent. Victims tend to be more physically impaired and functionally dependent than other seniors, and more often than not are female. Four per cent of the senior population is generally considered to be victim of some form of abuse or neglect. A large scale American study completed in 1998 found, among other things, that perpetrators in 90% of cases were spouses or relatives. Other studies suggest that residents of personal care homes are also vulnerable to physical and psychological abuse. Though any such investigation is beyond the scope of this Report, the Commission believes that further studies should be undertaken to provide information on the origins, extent, and severity of elder abuse.
A number of legislative regimes in place in Manitoba apply to adults in need of protection, including the Criminal Code, The Family Maintenance Act, The Mental Health Act, The Vulnerable Persons Living with a Disability Act, The Powers of Attorney Act, and The Health Care Directives Act. In addition, Manitoba's Domestic Violence and Stalking Prevention, Protection and Compensation and Act came into force on September 30, 1999. A variety of other legal remedies have some application to elder abuse. Although there is no single regime in Manitoba for the protection of all vulnerable adults or for older persons in particular, existing law does offer protection and compensation for victims of violence and financial exploitation.
While it may be a powerful weapon against abuse, unfortunately, the Criminal Code is too blunt an instrument. The criminal law is not concerned with the individual victim or the complexities of intimate relationships, but with broader social goals of reducing crime. As a result, a victim may avoid initiating the prosecution of a family member because of fear of rejection by other family members, loss of care, or being alone. The intimacy of the relationship and the accommodation of abusive behaviour over time may obscure the criminality of the conduct, and physical retaliation is a real possibility. Peace bonds are available under the Criminal Code, but the process is time consuming and uncertain, and the protection offered may be illusory.
The Family Maintenance Act deals with marital breakdown, and only applies to opposite-sex couples who have cohabited in a sexual relationship. Most of the provisions relevant to the issues discussed in this Report are now dealt with under The Domestic Violence and Stalking Prevention, Protection and Compensation Act. The Mental Health Act is a form of adult guardianship legislation intended to protect an adult with a mental disorder as defined in the Act or who is otherwise incapable of managing his or her affairs. The Act permits the appointment of a committee to take charge of the adult's affairs, but its all-or-nothing approach to competence is problematic. The Vulnerable Persons Living with a Mental Disability Act is also a form of adult guardianship law, and applies to persons with significantly impaired intellectual functioning, manifested prior to the age of 18, who are unable, alone or with the assistance of a support network, to manage their daily affairs, personal care and property. The Act seems to balance protection with individual autonomy, but its scope is very narrow.
The Powers of Attorney Act sets out a regime by which an adult can execute an enduring power of attorney, which allows the attorney to manage the donor's finances if and when the donor becomes mentally incompetent, thus avoiding judicial appointment of a committee. The Act, as amended in 1996, ensures that the attorney is accountable.
Finally, The Personal Health Care Directives Act permits individuals to instruct family members and medical practitioners on the nature and extent of medical or other treatment if, at some future time, the adult is incompetent or unable to communicate his or her wishes.
All of the Atlantic provinces, and British Columbia, have enacted "comprehensive" adult protection regimes, although the British Columbia legislation will not come into effect until February 1, 2000. Such legislation may address issues of guardianship, competence, mental disability, or committeeship, but its defining characteristic is its emphasis on protection against abuse and exploitation by means of agency intervention.
Generally speaking, comprehensive adult protection legislation applies to persons 18 and older who are incapable of protecting themselves from mistreatment as a result of mental disorder, illness, disability, duress, or physical restraint. By offering some combination of mandatory and optional services, the legislation also addresses the circumstances of competent and capable adults who have not taken measures to protect themselves.
The powers given to the intervening agencies, and the protection afforded to protected persons, vary from jurisdiction to jurisdiction. Some statutes authorize investigation, and entry into the home, only on the basis of reports of actual victimization, while others permit it on the basis of a perceived risk. Among the striking features of the legislation are powers of forcible entry, and provisions for on-site medical examination and removal of the adult with or without consent.
While comprehensive adult protection regimes may give agencies a necessary "foot in the door" in cases of suspected or actual adult abuse or neglect, such regimes appear to compromise individual autonomy and due process rights, which may not be recognized until long after an adult and his or her intimates have experienced significant loss of liberty and legal repercussions. It is this compromise of rights that is the most serious failing of comprehensive adult protection regimes, and for that reason the Commission does not recommend that such legislation be enacted in Manitoba.
Four Canadian provinces have enacted "domestic violence" legislation: Alberta, Saskatchewan, Manitoba, and Prince Edward Island. Such legislation is concerned, not with vulnerable adults per se and their care by the state, but with the limited matter of providing victims of domestic violence (and, in Manitoba, of stalking) with ready access to protection orders.
Manitoba's Domestic Violence and Stalking Prevention, Protection and Compensation Act arose from the Commission's Report on Stalking (Report #98, 1997) and the Schulman Report on a domestic murder-suicide (A Study of Domestic Violence and the Justice System in Manitoba (1997)). Recommendations of the two Reports were merged to cover domestic violence by a cohabitant, former cohabitant, or parent of a child, and stalking by any person.
Insofar as they deal with domestic violence, the Manitoba, Saskatchewan, Alberta, and Prince Edward Island Acts are similar in that they share the same raison d'être and same remedial alternatives, albeit with some notable substantive and procedural differences. The Acts balance the need to protect victims of abuse with an individual's right to autonomy more successfully than do comprehensive adult protection regimes. Unlike the comprehensive regimes, no agency as such is involved, nor must the adult be identified by anyone other than a justice of the peace or a judge as a person in need of protection. Domestic violence legislation thus avoids stigmatizing designations and preserves the individual's privacy. Moreover, no case planning is thrust upon an uncertain or unwilling victim, and the available remedies are sensitive to the needs and autonomy of victims. Nevertheless, the Commission believes that there is room, and in some cases a need, for improvement in Manitoba's legislation and the enforcement of orders.
Among its many recommendations, the Commission recommends that The Domestic Violence and Stalking Prevention, Protection and Compensation Act be amended to provide greater protection to victims of abuse by widening the definition of "domestic violence". Such an expansion would give designated justices of the peace and the court some leeway in determining whether conduct that does not fall squarely within the list of specified conduct should be characterized as violence in particular circumstances; including a vicarious responsibility provision stating that a respondent who encourages or solicits another person to commit an act that, if done by the respondent, would constitute family violence, is deemed to have committed that act personally; extending protection in respect of persons who have easy and frequent access to another person's household, regardless of whether the persons are related to one another by blood, marriage, or shared responsibility for the care of children, or whether they reside or have resided together; and permitting a broader range of persons, including certain designated persons (such as social workers) and friends or relatives (with the permission of the designated justice of the peace or the court) to apply for orders on behalf of victims.
The Commission also recommends that the Act be amended to include a list of factors to assist justices of the peace in determining emergency protection orders (which list ought to include consideration of the best interests of any child of the victim) and that designated justices of the peace and the Court of Queen's Bench be provided with the means to respond appropriately to particular circumstances of domestic abuse by allowing for the inclusion in an order of any provision considered necessary. Minimally, the Act should enable justices of the peace to grant sole occupancy of a residence; award temporary care and custody of a child; award temporary possession of a vehicle; and prohibit the respondent from dealing with specified property.
The Commission has also recommended a number of additional measures to enhance protection for vulnerable adults. For example, a Law Clinic, dedicated to older adults and other victims of abuse could provide specialized legal information and advice. Other non-legal responses to elder abuse might include public education to improve knowledge of rights and remedies, professional education, extending the reach of existing programs, developing new services and interagency protocols and, generally, increasing voluntary points of contact with those who can provide services, referral, and advice. These measures are empowering rather than reactive and enhance rather than limit the options available to older and other vulnerable persons. An issue that requires further attention is the financial exploitation of vulnerable adults. Finally, to improve the reporting of instances of adults in need of protection, the Commission recommends that professional and care-providing organizations develop mandatory reporting standards for members as a matter of professional obligation.
Report #103
December 1999
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