On truly fixing elderly abuse

Lip service is most certainly free. We pay the requisite toll of hot air whenever it happens to be International Day Of (fill in the blank), and then not a word for another year, unless something catastrophic happens in the interim.

It has been years since elder abuse became one of those recurring topics, with all the attendant policy statements, visits to the Geriatric Hospital, working papers, and of course no legislation or any tangible contribution to fixing the problem.

Abuse can be summarized as the infliction of physical or psychological harm, or the deprivation of goods and services that are necessary to avoid such physical or psychological harm; and it can also include financial exploitation. If we really want to “punch above our weight”, we need a framework to prevent, detect, treat, intervene in and prosecute cases of elder abuse on a national as opposed to case-by-case level.

The state has a duty to protect all citizens, but especially those who, due too mental, verbal and physical limitations, are vulnerable.

The most aggressive forms of such legislation are found in the United States, and any legislative provisions should attempt to address the following, which is not an exhaustive list:

1. Disqualification of certain persons from being employed as caregivers, using information gathered in the background checks and testing and with reference to an official register of abusive persons.

2. Stringent requirements for care facilities including a “Bill of Rights” for residents, supervision of employees, unannounced visits by state personnel, the presence of family members and reporting
of and dealing with complaints.

3. Amendments to laws relating to guardianship, execution of wills and powers of attorney to require attestation by the attending medical physician and/or a certificate rather than operating by custom as is the current approach.

4. Amendment of banking laws requiring reporting of suspicious transactions in relation to the accounts of elderly persons and possibly certification by an attending medical practitioner before bank accounts and other financial assets can be signed over to third parties.

5. Provisions for community policing identifying the elderly and the vulnerable, and training of such personnel to look for signs of suspicious behaviour on the part of relatives and family members and signs of abuse.

6. Regulated expansion of police powers to enter a residence upon suspicion that an elderly person is being imprisoned or held against his or her will.

7. Along with such measures there can be provisions authorizing medical personnel to delay the release of an elderly patient into the custody of relatives until the arrival of law enforcement.

8. The introduction of legislation to allow for the creation of living wills so that persons at whatever age and stage in life can self-determine their care and maintenance arrangements in the event that they become mentally incompetent. Currently the court makes such a determination upon an application by a concerned party under the Mental Health Act, Chapter 45 without any real knowledge of the personality or character of the proposed receiver and/or their relationship with the elderly person prior to the latter becoming mentally incompetent.

Currently, we resort to the general criminal and civil law in dealing with cases of elder abuse such as assaults under Offences Against The Person Act, theft and fraud, the Sexual Offences Act and, as stated previously,
the Mental Health Act. The law requires evidence on which to act, however, and this is usually the sticking point in cases involving the mentally disabled, small children and the elderly.

A person must be competent to give evidence. He or she must be of sound mind and capable of understanding and responding to the questions asked in examination-in-chief and cross-examination. The police need powers to investigate and to bring cases even without a virtual complainant, subject to other objective evidence such as the report of a medical practitioner and sworn statements of other persons.

Everyone and their mother had a photo op outside the house of the elderly lady whose case came to national attention recently. She insisted she be left where she was, everyone shrugged their shoulders and departed, and now that storm has died down, not another word can be heard on the subject.

Par for the course, I suppose, but one can live in hope that on the next International Day Of The Elderly there would have been some positive legislative and societal change in that area.

(Alicia A. Archer is an attorney-at-law.)

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