Legal Issues

Is there a need for legislation that would permit or require a seniors’ service or the general public to report the abuse of an older adult to a special social agency to investigate and assist that older adult? This is frequently a recommendation made by different organizations, including some seniors’ groups, when the issue of elder abuse is discussed.

Although this may sound like a reasonable option, we need to look carefully at the possible impact of such legislation on older adults before such legislation is enacted. Adult protection legislation, as it is often called, may appear attractive but is an ageist and inappropriate response to the complex and difficult problems that arise in cases of abuse of older adults.

This type of legislation is modeled after child abuse legislation and does not reflect the rights of adults, such as the right to make informed choices. Older people are NOT children, they are adults. As such they have the right to liberty and to choose how to live. It is unlikely that anyone wants to live in an abusive situation. However, the solution is not the forced removal of the adult victim from their home or place of residence, which does not address the root cause of the abuse or provide support and assistance so that the adult can get out of the abusive situation. Legislation may only serve to further victimize the victim, replacing the abuse of the adult by the offender with the "abuse" of the victim by a social service agency that makes decisions for them, over their objection, in the name of "protecting" them.

Adults do need supports and services to provide them with options to end the abuse. However, this does not justify a service or system taking over the older adult’s life and removing their right of choice, which the model of adult protection legislation usually does.

Forced removal of the adult victim from their home does not address the root cause of the abuse.

Adult protection legislation often focuses only on older adults, or adults with disabilities, and not on all abused adults. It would not apply to abused younger adult women. It may be asked then, if adult protection legislation is justifiable, why should it not also apply to these situations? The dynamic of wife assault/woman abuse is similar to that of abuse of older adults. However, few people would find the interventions that occur in adult protection legislation appropriate when applied to a mentally capable younger woman, even though she was a victim of abuse, as it would remove her control of her life from her hands and make others decision makers for her. So then why is it believed to be acceptable for older adults?

Adult protection legislation has also been called inappropriate because abuse of older adults is not a single issue or single problem and there is not one solution to all abuses. There are many different types of abuses; the remedies and responses to assist an abused older adult are many and may come from a variety of sectors while adult protection services focus on one service responding.

But one service can’t solve all the abuse problems. The assistance the older adult may need may have to come from a lawyer (if it’s a legal problem such as misappropriation of property or abuse of power of attorney) or a counsellor or social worker (if the abuse is rooted in family conflict and a history of abuse.) Some incidents of abuse are best responded to by police intervention. Or the abuser may need to get assistance through a drug or alcohol rehab program. There is a need to continue to develop a variety of responses and services to address abuse of older adults as it is impossible for a single service to meet all needs in this area.

Adult protection legislation may appear attractive but is an ageist response to a complex problem.

Some people think that special legislation would increase resources to respond to abuse. But ironically, the creation of a special "abuse response" or adult protection service may reduce the response to an older adult rather than increase it. As soon as a service is mandated to respond, other services without that specific mandate or funding drop out as a resource, referring the older adult to the special service. This may happen even if the older adult needs the help from the first-contacted service. This creates additional delay and steps to be taken before help is given.

It is more efficient and effective for all relevant services—whether labeled as abuse response services, whether a funded service, volunteer group, or informal organization—to be aware of the network of seniors and victim’s services in a community so that when a senior contacts one service, he or she may be directly connected to other parts of the network without having to go through a specialized service and wait in line to be referred to the appropriate service. This networking and interconnection is one of the advantages of an elder abuse community response network over an adult protection legislated service.

Reporting legislation does not create solutions to abuse problems; it is only a means of people referring to a particular service to investigate. It appears attractive to service providers who know that assisting a person who has been affected by abuse will take time and resources, and/or who feel that they lack the expertise to assist the older adult. Service providers may therefore prefer to pass on the matter to another person rather than help the older person themselves.

Ironically, an adult protection service may reduce response to older adults rather than increase it.

However, passing on the problem to another person doesn’t mean the older person will be helped. The specialized services are usually overloaded and many times need to refer the older person back to the person who referred them as the help the older person needs is available at the referring agency, not the specialized service. Also, in most cases, specialized services focus on investigation and possibly coordination of a response to the older adult, but do not provide direct service.

Adult protection legislation is a bandaid; it is not a solution.

Adult protection legislation is appropriate when the adult victim is not mentally capable and therefore lacks the ability to seek assistance or even express choices. This legislation already exists in Ontario as part of the Substitute Decisions Act. Under that act, the Public Guardian and Trustee (PGT) is authorized to investigate allegations of "serious harm," to either the person or property of an incapable adult. This legislation applies to adults of all ages, not just older adults. If the PGT concludes that the adult is suffering serious harm or is at risk of suffering such harm, they can take steps to become that person’s Guardian and make decisions for that adult to address the abuse.

The PGT takes the position that they are a service of last resort and the PGT’s office has been criticized as not intervening when they should. However, rather than creating new adult protection legislation, this service should be reviewed by the PGT to determine how it could be improved to provide a more effective response.

Reporting legislation is a bandaid; it is not a solution but a cover-up that makes it look like something is being done to help the older adult when that’s not the case. Some help may be given, but it is usually not the type of help that will resolve the abuse. Older adult victims of abuse need options to address their needs and help them bring an end to the abuses that they are experiencing. This will not be achieved by passing adult protection legislation that looks good but does not make available the services and assistance that an older adult needs, in a way that provides support while recognizing the right of older adults to make decisions that affects their own lives.

Please contact EWA for a complete hard copy:
publications@womanabuseprevention.com
Telephone: 416.968.3422 x21