The House of Commons Standing Committee on Justice and Human Rights (“JUST”) reports on and reviews different policies, programs, and other plans for the House of Commons. The committee has completed a wide range of work, including examining the impact of COVID-19 on the judicial system and considering how the pandemic has increased intimate partner violence. Much of the committee’s work concerns criminal law reform. Currently, the committee is conducting a Study of Elder Abuse. While elder abuse has been a long-standing issue within Canada, this study is particularly pertinent in light of the long-term care crisis during COVID-19. In this blog post we review issues discussed at the Committee’s meetings and summarize CCEL’s submission to the Committee.

Meetings and Witnesses

The JUST Committee has held four meetings for its Study of Elder Abuse in order to identify key issues and hear from witnesses who are experts in this field. Throughout these meetings three main themes arose out of the presentations and question periods:

1. Potential amendments to the Canadian Criminal Code;
2. Differences between institutional elder abuse and intimate family elder abuse, and how COVID-19 has exacerbated or changed these types of elder abuse; and
3. Lack of data and definitions for elder abuse exists within Canada.

A list of witnesses who appeared before the Committee can be found on their webpage.

Criminal Code Amendments

There were largely two opinions regarding Criminal Code amendments: some witnesses expressed the view that that the current age-neutral provisions, like assault or fraud, were largely adequate; others believed that Criminal Code reform was required in order support better prosecution of elder abuse.

During the first JUST meeting Graham Webb from the Advocacy Centre for the Elderly suggested adding a new criminal provision entitled “Criminal Endangerment.” The purpose of the provision would be to enhance capacity to hold institutions liable for abuse and neglect.  The provision would apply where an individual or organization entered a contract to care for an individual. Following this contract, if the individual or organization failed to provide proper care and put the individual at risk then they could be charged under the proposed “Criminal Endangerment” provision. This suggestion gained support from witnesses and committee members alike. Melissa Miller from Howie Sacks & Henry LLP also voiced support for Criminal Code amendments in order to hold those with power in long-term care homes more accountable.

Laura Tamblyn Watts from Can Age added that there ought to be amendments to support better charging for forms of elder abuse that do not fall squarely within existing Criminal Code provisions. She drew the committee’s attention to its previous consideration of Controlling or Coercive Conduct within Intimate Relationships and recommended modification of the proposed Criminal Code provision in order to capture elder abuse and neglect.

Another topic that arose out of the meetings was the idea of whistle-blower protection. This subject was discussed in relation to older adults living in care homes, and their family members, who may fear retaliation if they report abuse. This protection would also be crucial for nurses or other health care staff who may also fear speaking up when they see abuse occur in institutional settings. The Canadian Nurses Association  and the Canadian Support Workers Association jointly presented on how more robust regulations and protections are needed for support workers in order to better promote safety in long-term care homes.

Institutional vs Family Violence

The Canadian Centre for Elder Law (CCEL) noted that inter-personal or family violence may not always be well-suited to a criminal justice response. Older adults often do not report abuse because they do not want their family members to go to jail. They just want the abuse to stop. Other witnesses echoed this sentiment.

Older adults who face family violence have also been impacted by COVID-19. Representatives from the Pak Pioneers Community Organization of Canada and the Canadian Indigenous Nurses Association voiced how the pandemic has also negatively influenced family perpetrated elder abuse rates due to the isolation older adults face at home.

Other organizations like the Canadian Bar Association Elder Law and Criminal Justice sections, and CanAge suggested a national or pan-Canadian Elder Abuse Strategy. Similarly, Réseau FADOQ, Seniors First BC, the CCEL, and others stated that better education is needed for police, employees, and Crown Counsel.

Lack of Data and Definitions

A problem that many witnesses flagged was the lack of elder abuse data for Canada. This gap causes problems when considering how to allocate federal funding, resources, and efforts. The Department of Justice Canada stated that they are working with Statistics Canada to create a report that will address national data gaps. Statistics Canada also informed the Committee that targeted research based on ethnicity, age, and income is being conducted. We can anticipate disaggregated elder abuse data to form part of subsequent Statistics Canada reports on elder abuse.

The Committee was very interested in witnesses’ thoughts on whether elder abuse definitions were needed. The Canadian Network for the Prevention of Elder Abuse confirmed the need for definitions of elder abuse. The CBA Elder Law, and others, agreed that national direction, education, and guidelines from the federal government would allow for a more uniform approach from police and other community members. The Committee considered an earlier CCEL study paper on Legal Definitions of Elder Abuse and Neglect that was funded by the Department of Justice in 2009.

CCEL Submissions

The CCEL’s submissions to the JUST committee introduced and added to the main themes of the meetings. CCEL’s key points addressed:

1. Criminal law reform;
2. Infrastructural investments required to support criminal law reform; and
3. Related critical prevention and response issues within the federal government’s jurisdiction.

Criminal Law Reform

CCEL discussed the different types of elder abuse and how one singular criminal law reform effort will be inadequate to address all types of elder abuse. CCEL has had the opportunity to present twice to the Standing Committee on the Status of Women (“FEWO”) regarding abuse of older women. CCEL’s submissions were informed by the work we did for Atira Women’s Resource Society in developing the report Promising Practices in Housing Women who are Older and Fleeing Violence or Abuse. This report noted that older women may want to preserve important family relationships above all else.

CCEL pointed out that criminal law reform would likely be more effective when dealing with elder abuse perpetrated by professionals, con artists, and institutions. Despite already existing age-neutral provisions in the Criminal Code, reporting rates for elder abuse are low. This could be influenced by:

1. Older adults or employees fearing retribution or retaliation if they report abuse in long-term care homes;
2. Current provisions placing blame on employees rather than owners of institutions; and
3. Lack of education for police and long-term care home employees about recognizing and addressing elder abuse.[1]

Similarly, the low reporting rates could also reflect that elder abuse does not often reach the threshold to be deemed a “violent crime”, as it is often continuous acts rather than one instance of assault.[2]

CCEL focused on the importance of legal research when drafting amendments as research would allow Canada to learn from the mistakes and victories of others. In the United States, some states have criminalized elder abuse through age-specific criminal provisions. Conducting comparative research of United States’ legislation will be crucial in creating effective amendments. CCEL recommended:

Recommendation 1: The Government of Canada fund comparative legal research to inform criminal law reform in Canada to address elder abuse.

Infrastructural Investments Required

CCEL further discussed the importance of comparative research, specifically in the United States, through analyzing the US Federal Elder Justice Act, which is the primary source of federal law that governs elder abuse in the United States. The Elder Justice Act recognizes the importance of creating national bodies and programs to support the prevention of elder abuse. Similar legislation would be beneficial within Canada in order to develop an effective system to support prosecution of elder abuse.

CCEL pointed to the need for education and support for police and Crown Counsel to better address elder abuse because “[police] officers often fail to see a crime in elder abuse.”[3] More education, or even specialized elder abuse police units, could increase conviction rates. CCEL recommended:

Recommendation 2: The Government of Canada fund robust police training regarding elder abuse and neglect response.

Recommendation 3: The Government of Canada fund the RCMP to provide outreach to older adults who may have experienced abuse or neglect, or are at risk of abuse or neglect, in communities across Canada.

It is also crucial for Crown Counsel to receive more information on how to assist older victims throughout the court process. Each province and territory has their own Crown Counsel policies that are used throughout trials and other criminal procedures. However, none of the provinces or territories have policies that apply specifically to capacity issues, like dementia, in older adults. Consistent and clear Crown Counsel policy is required in order for Criminal Code provisions to be impactful. CCEL recommended:

Recommendation 4: The Government of Canada fund research, policy development, and inter-jurisdictional knowledge exchange regarding Crown Counsel policy, including on:

• Prosecution of elder abuse case;
• Support for witness and victims with mental capacity issues and preservation of their evidence; and
• Testimonial aids to support the participation of vulnerable older adult witnesses.

Other Elder Abuse Issues under the Federal Jurisdiction

The third key point that CCEL raised was that various non-criminal law issues ought to be addressed by the federal government. One issue that CCEL touched upon was the need for a victim and survivor-centred lens to policy development. This also includes recognizing that certain vulnerable groups are at even more risk, including Indigenous people, recent immigrant women and their children, women with disabilities, rural women, and women whose first language is either a minority language or a non-official language.[4] This dynamic calls for greater awareness of the unique needs of different populations when creating federal policies. CCEL recommended:

Recommendation 5: The Government of Canada’s law and policy response to elder abuse and neglect must recognize the unique needs of vulnerable populations such as Indigenous peoples, immigrants, and refugees.

CCEL also addressed a key accessibility issue – the need for a safe housing for people fleeing abuse. In Canada, there is only one transition house developed to meet the specific needs of older women. In many communities, the only emergency housing option for male survivors is a homeless shelter. These shelters are designed for people experiencing homelessness; support for survivors of family violence is not available, and older adults may be required to leave the facility during the day. CCEL recommended:

Recommendation 6: The Government of Canada fund the development of appropriate and accessible transition housing for older adults in communities across Canada.

The final recommendation in the CCEL’s brief to the Committee involved the importance of applying a Gender-Based+ Analysis to elder abuse policy. When addressing gender-based violence, women are often caught between two systems: those services that address domestic violence and those that address elder abuse more generally.[5]

Recommendation 7: The Government of Canada apply a gender based+ analysis to law and policy development regarding elder abuse and neglect prevention and response. 

Conclusion

The JUST Study on Elder Abuse has given us an opportunity to hear what various experts across Canada think about the need for criminal law reform. The process has also highlighted other issues related to effective elder abuse policy. The full CCEL brief to the Committee will be uploaded to the Committee webpage shortly. The Committee’s report will likely be published in a few months. We hope to see our seven recommendations implemented in the future.  

Monika Steger is a third year law student at Lakehead University in Thunder Bay, Ontario. This summer Monika is working as a CCEL legal intern thanks to funding from the Law Foundation of Ontario. In May Monika assisted CCEL National Director Krista James with our submissions to the House of Commons Justice and Human Rights Committee on their study of elder abuse. This summer she will be doing research to support the CCEL project exploring models of oversight for health care assistants in BC and our update to the Practical Guide to Elder Abuse and Neglect Law in Canada.

[1] Ginger L Fowler, “Protecting a Frail Generation: Georgia’s Need for Civil Protections Against Elder Abuse” (2012) 6: 351 J Marshall LJ 3. See also, House of Commons, “Report of the Standing Committee on the Status of Women” (May 2012) (Chair: Marie- Claude Morin) at 9 [House of Commons].

[2] Ibid.

[3] House of Commons, supra note 1.

[4] Ibid at 1.

[5] House of Commons, “Report of the Standing Committee on the Status of Women” (June 2019) (Chair: Karen Vecchio) at 38 (Recommendation 27).

The post The House of Commons Justice and Human Rights Committee Examines Elder Abuse first appeared on British Columbia Law Institute.

Introduction

We are pleased that Kevin R. Smith will be presenting at the 2019 Canadian Elder Law Conference. Kevin has an LLM in Elder Law, and is currently an elder law consultant in Vancouver. Kevin has previously worked as an elder law lawyer and as a lawyer with Seniors First BC.

In this blog post, we share an interview with Kevin on his upcoming #elderlaw2019 conference presentation, entitled An Elder Law Toolkit. Kevin brings his wealth of experience in the elder law field to share with us his tools for elder law lawyers and their clients, and his advice for lawyers new to elder law.

Can you describe your presentation on the elder law toolkit?
Kevin: It will be a walkthrough of a curated collection of various resources for an elder law practitioner, especially someone who is new in the field. It will include various checklists and other published materials for the practitioner, as well as material they could use to hand out to their clients. The reason for the PLE (public legal education) material is these areas are all fairly complicated and probably new to the client, and the client really needs material to look through.

How did you curate these resources?
Kevin: It comes from my own experience over the years practicing in the area as an elder law lawyer and as a staff lawyer at Seniors First BC, dealing with elder law issues about capacity, elder abuse, seniors care, and seniors housing. Through my education in the USA, a Master of Laws in elder law from the Center for Excellence in Elder Law, I learned a great deal about the resources available in the USA and many of these are applicable here.

How will learning about your elder law toolkit support a lawyer’s practice?
Kevin: I think elder law is a very challenging area for a lawyer to start working in. There aren’t any elder law courses per se in law schools, and an elder law practice presents a lot of challenges for a lawyer. The lawyer needs to have a more holistic or multidisciplinary approach to the practice of elder law. The toolkit will help the lawyer with being better prepared to deal with some of the issues, accommodate older adults and meet the ethical challenges. It will also help the lawyer in educating their clients on the issues that their clients need to consider.

What do you feel are the most pressing ethical and practice issues facing lawyers working in the area of elder law?
Kevin: A big question is who your client is. This is an especially important question in elder law. You often have a family member bring an older adult into the lawyer’s office and it is important to recognize who you are going to be providing service to. There is an American Bar Association resource called Why am I Left in the Waiting Room? It contains a very good discussion of why the family member who thinks they should be in there and be involved with everything should not be. The lawyer should as much as possible try to take instruction from, and be retained by, the older adults.

There are other ethical and practice issues:

• The lawyer must consider when to maintain autonomy versus when to start getting involved in protection with clients who are lacking in capacity.
• Various conflicts of interest that can arise. In terms of financial questions, there can be a question of whether the family member is interested in protecting the older adult’s funds or if they are more concerned about protecting their own inheritance.
• Practice issues include how you accommodate older adults in your practice and how you make your office and website elder-friendly.

What are the most important areas lawyers need to know about, but lack training in, in order to better help older adults?

Kevin:

1. One obvious one is about assessing incapability, and they don’t teach that in law school. It is what the lawyer needs to do. A lawyer can’t just send a client off to a doctor and say can you tell me if this person is capable or not.  It is a legal determination the lawyer has to make – is the client capable at this time to do this task.  It is important to recognize that there is a difference between a medical determination of someone being incapable and whether they are still legally capable of, for example, making documents or providing instructions.
2. An important area is identifying and responding to elder abuse. Some of the responses to elder abuse include specific planning documents and representation agreements. Lawyers need to know more about those, especially section 7 representation agreements, which can be a useful last grasp response to someone who may lack capacity to make many decisions.
3. There is the whole area of seniors housing and care. Those places are a home for the senior. At the same time, they are also a workplace. A lot of issues come up in relation to the overlap between housing, health care and privacy rights of the senior on the one hand, and workers’ rights on the other. They may sometimes appear to be in conflict.

You have a strong background in community advocacy. What do you think is the most rewarding part about representing older adults?
Kevin: I think you are responding to a real need. People can be in a very challenging time of their life, and they can be in desperate situations. You are not just helping people. You can also help people help themselves, and help them retain their agency and their independence at a time when they are feeling lost or very vulnerable.

You are very knowledgeable about advance planning tools.  What is the most important thing you would tell an older adult who wants to plan for a time when they may have reduced capacity?
Kevin: Besides the obvious: do it!  It is very important to do it. It is also very important to carefully choose the people who are going to be basically your agent. To recognize that you are handing over complete control to them, while at the same time recognizing you can maintain some control up until the point when complete control is handed over. For an attorney, you must have somebody who you can implicitly trust because you are basically giving them a licence to steal by handing over control of your financial and legal affairs.
In terms of representation agreements, you may be giving someone else control literally over life and death decisions, and people often assume that someone else will know their values and wishes and respect them.  Often, people have been wrong about what their chosen agent or proxy will do in a given situation.

You are a frequent attendee at the Canadian Elder Law Conferences.  What is your favorite part about the conference? What sessions are you looking forward to this year?
Kevin: Besides of course hearing knowledgeable people talk about the various issues and challenges of elder law?  One enjoyable part is the debate that is usually set up, hearing two sides trash through some of the issues involved in elder law. As for this year’s conference, I am interested in the sessions on legal and policy issues in long-term care, balancing risk and self-determination, and the student paper on guardianship tribunals. These sessions are all wrestling with very challenging issues which come up in elder law. I enjoy the wrestling with those challenging issues.

Canadian Elder Law Conference
The Canadian Elder Law Conference, entitled Bridging the Gap: Elder Law for Everyone will be taking place from November 14-15, 2019 in Vancouver, BC. Kevin’s presentation, An Elder Law Toolkit, will be at 2:15 pm on the second day, Friday, November 15, 2019. For more information, including how to register, visit the CCEL’s Canadian Elder Law Conference page.

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On June 17, 2019, the Government of Canada released A Dementia Strategy for Canada: Together we Aspire [National Dementia Strategy]. This strategy was created following several steps:

• In November 2016, the Senate of Canada released a report on dementia in Canada;
• In 2017, Parliament passed the National Strategy for Alzheimer’s Disease and Other Dementias Act, legislating the development of a national dementia strategy, and the creation of a ministerial advisory board;
• In May 2018, the Public Health Agency of Canada hosted a National Dementia Conference (our staff lawyer Valerie Le Blanc attended the conference and reported on the event in this blog post); and
• In April 2019, the Public Health Agency of Canada published the What We Heard: Informing a Dementia Strategy for Canada Report (the What We Heard Report) identifying themes and issues stakeholders raised at the 2018 conference.

In this blog post we:

• Highlight key aspects of the What We Heard Report;
• Summarize the national strategy;
• Make connections with the 2016 Provincial Guide to Dementia Care in BC; and
• Comment on what it means to incorporate a human rights approach into a dementia strategy.

The What We Heard Report

In developing the National Dementia Strategy, the government completed consultations, including with people living with dementia, caregivers, researchers, among others, and conducted a National Dementia Conference. Here are some of the highlights from the What We Heard Report.

• Canadians want to live better with dementia, including better diagnosis, improved quality of life in later stages, and reduced stigma.
• There is a need for improved work environments and training for front-line health care providers such as personal support workers and health care assistants.
• More supports are needed for the family and friend caregivers, who often spend a great many hours caring to the detriment of their own financial, physical, and emotional well-being.
• Canadians feel it is especially important to include people with dementia in the research to ensure it is effective research.
• Research findings need to be put into practice and be accessible.
• Consultations also demonstrate a need for the strategy to apply a human rights lens, as some feel that the rights of people living with dementia are not being upheld, as there is a great deal of stigma and discrimination associated with the diagnosis which affects quality of life.
• It is important for the dementia strategy to focus on diversity, and the unique needs of people living in rural and remote communities and Indigenous peoples.

The National Strategy

Vision and Principles Underlying the Strategy

The National Dementia Strategy’s vision is “[a] Canada in which all people living with dementia and caregivers are valued and supported, quality of life is optimized, and dementia is prevented, well understood, and effectively treated.” The National Dementia Strategy sets out five principles which it used to create the strategy. These five principles are:

• Prioritizing Quality of Life
• Respect and Value Diversity
• Respect Human Rights
• Evidence-Informed
• Results Focused

The Three National Objectives

The first national objective is to prevent dementia. To prevent dementia:

• More research is needed to understand the full picture of what causes dementia and understand what factors increase the risk of dementia.
• Evidence-based interventions need to be developed.
• Both health care professionals and the public need more education on what the risk factors are, and how healthy lifestyles can reduce the risk of dementia.
• Research has shown that the physical and social environment can affect healthy lifestyles and the risk of dementia. This area needs more research and targeted intervention.

The second national objective is to advance therapies and find a cure for dementia. To advance therapies and find a cure:

• Setting research priorities and developing therapies need to be conducted in consultation with people living with dementia, and adapted with time.
• Dementia research also requires an influx of money and partnerships.
• Research needs to be focused on developing therapies and disseminating the research into clinical settings where they can be used to help people living with dementia.

The third national objective is to improve the quality of life for people living with dementia and their family and friend caregivers.

• Areas of focus include:
  • Eliminating stigma associated with dementia;
  • Creating more inclusive communities; and
  • Improving supports for caregivers.

• Improving the quality of life for people living with dementia requires:
  • Early diagnosis;
  • Creation of better diagnosis procedures; and
  • Creating more services throughout the disease course.

• Health care professionals, especially doctors, need more education on dementia.

The Five Implementation Pillars

The National Dementia Strategy sets out five pillars which the implementation of the National Dementia Strategy should be built on.

1. Collaboration: the levels of government in Canada, organizations, researchers, and international partners must work together.
2. Research and Innovation: collaboration is needed in funding and addressing research gaps and translating research into practice.
3. Surveillance and Data: information needs to be shared between governments, and more public health data on dementia and who is at risk for it is needed.
4. Information Resources: information on research findings, best practices, and available supports need to be accessible.
5. Skilled Workforce: dementia care must be of high quality, which includes improving the education of health care providers and increasing the number of care providers.

Barriers to Care and Higher Risk Populations

The National Dementia Strategy notes that research is lacking in the area of what groups are at a higher risk of dementia or face additional or unique barriers to equitable care. The National Dementia Strategy seeks to enhance knowledge in these areas and aims to help people who face greater risk or additional barriers to equitable care. For example, the National Dementia Strategy notes:

• Indigenous people and people living with intellectual disabilities face both barriers to equitable care and a higher risk.
• People with existing health issues, older adults, and women are at a higher risk of dementia.
• Ethnic and cultural minorities, LGBTQ2, rural and remote communities, and people diagnosed with young onset dementia are some of the groups facing unique barriers to equitable care.

The National Dementia Strategy and the Provincial Guide to Dementia Care in BC

Providing health care and regulating health care professionals involved in dementia care are the responsibilities of provincial and territorial government. While the National Dementia Strategy will provide broad guidance to dementia research and care and support funding, the main work will be done by the provinces and territories. Some jurisdictions do have their own strategies or guides to dementia care, including BC. The Provincial Guide to Dementia Care in BC [2016 Provincial Guide] was released in 2016, updating the 2012 Provincial Dementia Action Plan for BC.

The 2016 Provincial Guide sets out four priority areas for planning services and supports in BC for people living with dementia and their caregivers.

1. Increase public awareness and early recognition of cognitive changes
2. Support people living with dementia to live safely at home for as long as possible, including caregiver support.
3. Improve quality of dementia care in residential care, including palliative and end of life care.
4. Increase system supports and adoption of best practices in dementia care.

While the 2016 Provincial Guide was developed before the National Dementia Strategy, the 2016 Provincial Guide does reflect similar goals, particularly in the area of improving the quality of life for people living with dementia. As the provinces will be conducting most of the work in the area of providing dementia care, and education of health professionals and the public, the province’s plan for dementia care is important to fulfilling the National Dementia Strategy’s goals.

Human Rights and Citizenship for People Living with Dementia

The academic literature on dementia and the What We Heard Report both stress the importance of considering the experiences of people living with dementia through a human rights and citizenship lens. In Canada, the right to be free from discrimination, including because of a disability, is enshrined in both human rights legislation (federal, provincial and territorial) and the Canadian Charter of Rights and Freedoms. The United Nations Convention on the Rights of Persons with Disabilities, to which Canada is a signatory, holds that a person should be able to fully participate in society and have a right to make their own decisions. The citizenship approach affirms that people living with dementia should be able to live free of stigma, and fully participate in society with respect for their rights, competencies, and abilities to participate in decision-making.[i]

The National Dementia Strategy does have the potential to enhance respect for the citizenship rights of people living with dementia. The National Dementia Strategy states that respect for human rights and quality of life are at the strategy’s foundation, and that improving quality of life for both the person living with dementia and their caregiver is important. Additionally, the National Dementia Strategy seeks to reduce some of the stigma and discrimination around dementia, both within the National Dementia Strategy and going forward through education of the public and health care providers. The emphasis on how the experience of dementia differs for different groups of people is also a critical step toward increasing citizenship for people living with dementia. Different people may require access to different services or supports.

Where the National Dementia Strategy may fall short in ensuring full engagement for people living with dementia is in its strong focus on evidence-informed research and results. The National Dementia Strategy seeks to focus on improving evidence-based best practices for dementia, which is a laudable goal. But focusing on areas more amenable to quantitative measurement and data collection—such as important factors like the number and effectiveness of treatments and supports, statistics on dementia, and funding of collaborative research—may pull focus away from the recommendations in the National Dementia Strategy which focus on daily quality of life and engagement in society. For example, two interventions which would greatly improve quality of life for people living with dementia are modifications to built environments, and public education to reduce stigma. This work has the potential to prevent discrimination and support people living with dementia to more fully engage in community. However, the success of such interventions is more difficult to measure, and may require a great deal of time and the involvement of multiple levels of government. We hope the National Dementia Strategy’s focus on results and data will not de-prioritize such work to enhance respect for the citizenship and inclusion of people living with dementia.

We are excited about the emphasis on respect for human rights found in the National Dementia Strategy. We encourage all agencies to consider what kinds of education and institutional changes are required to give life to this commitment, and we look forward to supporting communities and governments to bring a human rights analysis to issues impacting people living with dementia and their families. To get a flavour of what a human rights approach looks like, please see our recent report, Conversations about Care: The Law and Practice of Health Care Consent for People Living with Dementia in British Columbia.

[i] Deborah O’Conner, Jim Mann, & Elaine Wiersma, “Stigma, discrimination, and agency: Diagnostic disclosure as an everyday practice shaping social citizenship” (2018) 44 J Aging Studies 45; Deborah O’Conner & Ann-Charlotte Nedlund, “Editorial Introduction: Special Issues on Citizenship and Dementia” (2016) 15:3 Dementia 285.

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Introduction

We are so excited that Laura Tamblyn Watts, the Chief Public Policy Officer at CARP (Canadian Association for Retired Persons), will be presenting at the 2019 Canadian Elder Law Conference. CARP will be joining us this year as a silver level conference sponsor. Many of you will recall that Laura was the CCEL National Director for a number of years. She continues to be a great CCEL ally 

and national leader in the elder law community, and we have followed her career with interest.

On the heels of World Elder Abuse Awareness Day (June 15), in this blog post we share an interview with Laura on her upcoming conference presentation, entitled “A New Made-in-Canada

 Model for Elder Abuse Response”. She brings her vast expertise on elder abuse law and practice to support big-picture visionary thinking on how to move forward in the face of so many barriers to preventing harm to older people and responding effectively when older people are victimized. She shares some of her concerns in this blog post. To hear more of her ideas, join us at the conference!

Can you describe your presentation on a new model for elder abuse response?

Laura: What is important is for us to look at elder abuse at a macro level. We have been very concerned with trying to create resources and responses to individual issues and community-based issues. Elder abuse is an issue that is problematic now, yet we know that with demographic shifts and resource constraints it is only going to get worse in the near future. My presentation is going to help launch a conversation about how we should be thinking about and designing elder abuse response for one year from now to 20 years from now, and challenging some of our notions that are 20 and 30 years old. We were very concerned before about making sure that people’s individual autonomy would be respected, and the state wouldn’t swoop in and snatch people from their homes. This is not really the focal point now. What we are seeing now is very fragile and vulnerable people are not getting any kind of significant response around elder abuse and neglect, and we need to start thinking about what the response should be in the future.

Why do you feel a new model for elder abuse response is needed now?

Laura: With the change in demographics, the increase in elder abuse, and the ineffective piecemeal approach that we have right now, we know the system is going to be increasingly stressed. We need to start thinking about how to create a model which does meet the needs of our most vulnerable population in a way which is sustainable and responsive.

What would you say are the biggest ethical challenges facing lawyers in relation to elder abuse?

Laura: There are three challenges I see.

1. The first piece is so much of elder abuse and neglect can’t really be addressed by lawyers because there isn’t necessarily the financial compensation to do so. What it also does need is quite a lot of time on the part of the lawyer to really wrestle these issues into the ground and be able to support people. Lawyers are often put into a position of wanting to help and knowing they need to help, but not necessarily knowing precisely how they are going to attack the issue in a way which is financially manageable for a client.
2. Another professional challenge is a family lawyer that has been dealing with the whole family and one of the lawyer’s clients becomes vulnerable or exploited by another one of the lawyer’s clients. There can often be a conflict of interest or at least the worry or perception of a conflict of interest.
3. The third piece is that ethically lawyers often fight with their obligations around keeping information private where they know that there may be significant abuse ongoing. The lawyer may be wrestling with understanding their own need for solicitor-client privilege but also how and when to share some information when an older person is at risk. 

What role do you feel lawyers are most able to play in helping to respond to and prevent elder abuse?

Laura: I think lawyers are one of the key social leaders that can help prevent and respond to elder abuse. The solicitor has a wonderful opportunity to provide support and advice, both on a legal set of issues, but also on a lot of pragmatic and practical issues around avoiding problems before they start. Lawyers can help do long term thinking and understanding the complexities of how some people may feel. From a litigator’s point of view, very often in elder law, you don’t have that arms-length type of conflict. These are often people who are related to each other or working together, so quite often the preservation of the relationship is a priority, and it’s an area lawyers can assist on but also are challenged by.

How has your background as a lawyer, advocate, and policy officer helped you in your work on elder abuse?

Laura: I think that a lot of people can focus more succinctly on some of the social aspects of elder abuse. There are far fewer people who have expertise in understanding the legal aspects of elder abuse and being able to parse out what are sociological issues versus what are legal issues. People can say it’s not right that someone is doing something to me. Those with legal backgrounds can ask is it not right because of how it feels to you emotionally or is it not right because it is against the criminal code. The other piece is having a legal background and a policy background allows you to identify and raise awareness of systemic issues. 

In your opinion, what do you think are the most pressing issues in elder abuse prevention or response?

Laura: There is not a coordinated approach to response in community, so you don’t get predictable responses. Also, there is no one agency who elder abuse response really belongs to. On the whole, there are few people you can call that will provide a response which is transparent and thoughtful and effective. We have so little case management. I do think that is a very pressing issue.

I think also we need to understand the question of how ageism plays a critical role within elder abuse. I challenge people to go into any card shop and see issues of race or gender or homophobia represented as examples in a mocking or derogatory way. Yet that is the standard in the case of age. It is shocking. We think about what makes elder abuse and response prevalent and increasing, but we need to intersect our thoughts around ageism and how we as a society don’t respect our elders.

Where do you feel Canada’s elder abuse response is not doing what it needs to do?

Laura: There are three places where this is especially so.

1. At a very narrow level, CARP would like a 1-800 number provided by the federal government where a human being answers the phone and is able to guide individual inquiries to local resources, to help bring it back to the community response.
2. The second piece is we generally don’t have very good designated responders. In BC, Health Authorities have designated responders, and you also have the PGT and the Ministry. But it doesn’t cover off all instances and circumstances. There are conflicts in the BC context: if the health authorities are responding to abuse and neglect they are often put into a situation where they themselves are the people being accused of being the abusers. There is very little in the field of independence in this regard. I also think generally the resources of the PGT are not what they need to be. If I look at the rest of the country, those cases are ever more the case.
3. The last piece I would offer is where we have mandatory reporting requirements, you are supposed to have responsibility up to the self-regulating colleges. Yet, most of the professionals are less aware than they should be about their obligations as reporters, and the colleges are either unaware of their obligations as a reporter or don’t know how to feed this information into supported responses.

Are there any models for elder abuse response internationally which you feel Canada could learn from?

Laura: There are certainly models in other jurisdictions to look to for different pieces. Do I think any one country has it perfectly right? I don’t. I would offer that the Australian models of informal tribunals are a useful way to bring the law in, but to also allow people to get some resolution. This can work very effectively at a guardianship or decision-making level. When it comes to consent and capacity issues, the Ontario consent and capacity board is unique. It is a good first step BC could look to. In the United States, they have a very useful centralized agency that everyone knows about called National Adult Protective Services Association. Whether or not NAPSA is the right formula for Canada, I think that is part of our conversation. In the United States, what they do right is people know who to call, there is a clear mandate via this agency, and they keep decent numbers on of prevalence of elder abuse.

Canadian Elder Law Conference

The Canadian Elder Law Conference, entitled Bridging the Gap: Elder Law for Everyone will be taking place from November 14-15, 2019 in Vancouver, BC. Laura’s presentation, A New Made-in-Canada Model for Elder Abuse Response, will be at 9:40 am on the second day, Friday, November 15, 2019. Kimberly A. Whaley, founding partner at Whaley Estate Litigation Partners, will be presenting on Elder Abuse: Civil and Criminal Remedies, at 4:00 pm on the first day, Thursday, November 14, 2019.

You may register for the full conference or for only the mediation workshop. For more information, visit the CCEL’s Canadian Elder Law Conference page.

The post Elder Abuse Response Presentation at the Canadian Elder Law Conference: Interview with Laura Tamblyn Watts first appeared on British Columbia Law Institute.

A lot has happened in those years.

8 Elder Law Conferences. 3 National Seniors Day events. 2 International Women’s Day gatherings, 33 projects, 2 promising practicing tools, 9 reports, 13 study papers, 10 videos, 36 educational tools, 7 project advisory committees, 53 consultation focus groups, 4475 tweets, 3 National Directors, and too many webinars, presentations, interviews, and community meetings to count.

We are a tiny shop. It is volunteers, collaborations, and partnerships that makes our work possible. Check out this slide show (below) of some of the people who have contributed to our work over the years. We are so grateful to have had the opportunity to work with you,  and learn from you.

If you have only recently started following our work, you may not be aware of all the topics we have studied over the years. On the website you will find reports, study papers and tools on elder abuse and neglect, mental capacity, family caregiving, violence against older women, private care agreements, loans and guarantees, predatory lending, assisted living, adult guardianship, elder mediation, reverse mortgages, financial literacy, frauds and scams, and supported decision making. I bet many of you don’t know what viatical settlements are. Well, we have a paper on that too. We have been busy.

What are we up to now?

• Valerie Leblanc is leading Inclusive Investing, our project on supported decision making in the investment sector. We will consulting with stakeholders in BC and Ontario this fall. Contact Valerie if you have experiences to share: vleblanc@bcli.org
• We are wrapping up work on our Health Care Consent, Aging and Dementia project with the Alzheimer Society of BC. In a few months we will have a report and video to share with you.
• We are updating our 2011 Practical Guide to Elder Abuse and Neglect Law in Canada. We welcome your thoughts on how to improve the guide. Contact Krista at kjames@bcli.org.
• We are starting to plan our next Canadian Elder Law Conference for 2019. Let us know what topics interest you.
• We are working with AGEWELL to support researchers to better understand the elder law issues that impact their work. All of our AGEWELL webinars have been recorded, so you can watch them anytime.

2018 is an exciting time! We have a provincial Seniors Advocate, and finally, a national Minister for Seniors. We are thrilled to continue our work supporting people across Canada to understand the legal issues that impact us as we age, and to assist governments with the challenge of enhancing our laws in order to better address the needs of older people in this country.

Thank you so much for supporting our work over the years. We look forward to many additional years of working together.

CCEL in Pictures – Slideshow

Happy Anniversary to us! We put together this short retrospective of the last 15 years. Thank you to all the volunteers, collaborators, funders, students, and staff who have supported us over the years. We could not do it without you!

Testimonials

We asked a few of our steadfast supporters and collaborators to share their views on our work, here is what they had to say:

Since its inception, the Canadian Centre for Elder Law has been a key driver of legal and policy reform efforts that aim to improve the lives of older adults. Made possible by The Law Foundation of B.C.’s Public Interest Articling Fellowship, it was a privilege to work at an institution that’s at the national and international forefront of elder law reform.

-Heather (Campbell) Pope, Articled Student, 2010-2011
Director, Dementia Justice Society of Canada

I have been involved with various programs of the CCEL since 2005.  It was an amazing idea developed at a time when very few had anticipated the imminent demographic change which would create unique legal issues. Since its inception, it has excelled in scholarly research and provided practical resources for vulnerable seniors, particularly women who are more likely to be economically disadvantaged.

-Marion Allan
Retired Judge and CCEL Board member

The CCEL has been at the core of me for 15 years.  When I started we had a desk, a research assistant (Amy), a phone and a computer.  We had the wonderful work that laid the foundation by the BCLI and by Margaret Hall.  But when Arthur said to me “build it – go!” It was the opportunity of a lifetime.  My first day was October 15, 2004.  I remember it well because it was a provincial elder abuse conference hosted by the then BC Coalition of Eliminate Abuse of Seniors (then BC CEAS – now Seniors’ First BC) 400 people in the room, all talking about how we raise the issue of elder abuse and neglect and how we can bring awareness to Canadians about the terrible rising trend.  It was a watershed moment for me.  My work in social justice, law reform and rights issues all came together in a blinding “ah-ha moment”.  It was like lightening striking me.

–Laura Tamblyn Watts
CCEL Senior Fellow and past long-time National Director
Chief Public Policy Officer, CARP

Congratulations to the CCEL on the occasion of its 15th anniversary.  I consider it a privilege to have been involved many times over all those years on a wide variety of innovative projects that better the lives of older Canadians in vulnerable circumstances!  Best wishes for continued success in the future

-Alison Leaney
Provincial Coordinator, Vulnerable Adults Community Response
Public Guardian and Trustee of BC

“The first conference hosted by the CCEL opened my eyes to what could be achieved in the speciality of Elder Law. It was a meeting of enthusiastic informed professionals all committed to what for us in Australia was an emerging speciality. The work of the staff has never ceased to amaze me and the connections, collaboration and friendships I have made through and with the CCEL will last a life time.”

-Sue Field
Adjunct Associate Professor
School of Law Western Sydney University
Adjunct Associate Professor Charles Sturt University
Research Fellow University of Western Australia
Lead Investigator Cognitive Decline Partnership Centre
Distinguished Fellow Canadian Centre for Elder Law

The BC CRN applauds the work that has been done by the CCEL to inform and educate on the legal implications of elder abuse and neglect over the last 25 years.  The service providers and organizations which make up the CRNs appreciate having reliable and current information which can used with confidence when working in community to increase the awareness of elder abuse and work towards its prevention

-Sherry Baker
Executive Director, BC Association of Community Response Networks

As a Law Society practice advisor, fielding questions from lawyers about financial exploitation, undue influence, common law tests of capacity, dementia and other issues affecting older clients, I have often referred lawyers to Canadian Centre for Elder Law materials.   Thanks for being there CCEL and keep up the good work.  Happy Anniversary! 

-Barbara Buchanan QC
Practice Advisor, Conduct & Ethics
The Law Society of British Columbia

I want to congratulate Canadian Centre for Elder Law on their special anniversary!  In my role as the Manager of Community Outreach at West Coast LEAF I had the privilege to be part of the Women’s Dialogue Project. This project was a collaboration between CCEL and West Coast LEAF, and it paved way for us to meet with over 300 women of diverse background in various Lower Mainland communities. For me, it was inspiring to see first hand the inspiring impact of women being empowered to have a voice and knowing that they can influence law and public policy.  I wish the Centre many more successes and collaborations with community Partners to improve the lives of older women.

-Shahnaz Rahman
Executive Director , Surrey Women’s Centre

Congratulations to the Canadian Centre for Elder Law. For 15 years you have enhanced our understanding of the legal issues affecting older adults. The Alzheimer Society of B.C. is particularly appreciative of how you’ve examined issues relevant to everyone affected by dementia: people living with dementia, and the caregivers, families and friends dedicated to caring for them. Through your research, you have collaborated with the Alzheimer Society and the people we support, giving voice to the concerns and the experiences which shape our perspectives. Thank you for your leadership in educating us all on law, policy and practice; thank you for working with us to change the experience of families affected by dementia.

-Barbara Lindsay LLB
Director, Advocacy & Education
Marketing & Communications
Alzheimer Society of B.C.

Current Projects

• Inclusive Investing: Respecting the Rights of Vulnerable Investors through Supported Decision Making
• Health Care Consent, Aging and Dementia: Mapping Law and Practice in British Columbia
• Older Women’s Dialogue Project

Find us on social media

Twitter: @CCElderLaw

Facebook: @CanCentreforElderLaw

The post CCEL Celebrates 15th Anniversary first appeared on British Columbia Law Institute.