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 By Heather Campbell

The concept of institutional elder abuse is often associated with the mistreatment, exploitation and rights violations experienced by residents in care home settings. However, older adults in correctional facilities can also be victims of these institutional harms, and elders with dementia are particularly vulnerable if they become caught up in the criminal justice system.

Under the current system, a criminally accused individual with dementia faces a long, difficult and dangerous journey. From time to time, for example, we hear tragic reports of people with dementia languishing in prison or forensic hospitals. In early 2016, for example, a 53-year-old Yukon man with severe dementia had been in jail for six weeks awaiting a fitness to stand trial assessment. He was eventually found unfit, but remained in jail while he waited for a risk assessment to be conducted at a forensic hospital.

Further, in R v Amey, a 72-year-old man with alcohol-induced dementia was found unfit to stand trial and remained at a forensic hospital in Nova Scotia. About one year later, his fitness came before the court again. In finding that the accused remained unfit, Justice Ross observed:

“I have not considered the implications for Mr. Amey of being found fit or unfit. On a certain level one could hardly help feeling sympathy for someone in Mr. Amey’s situation - wanting to go home, institutionalized for over a year, never being given an opportunity to meet his accusers in a court of law. However, the judicial function is to be executed without favour or sympathy.”  

Recommendations

As part of my ongoing research, I have developed several recommendations for improving how the criminal justice system manages people with dementia who are suspected of, charged with or convicted of an offence. In this blog post, I identify three broad-based recommendations tied to the development of a national dementia strategy and improved police training.

1.     National and provincial dementia strategies should identify and address dementia as a criminal justice system issue.

Canada appears to be on the cusp of establishing a national dementia strategy; however, based on current patterns, there is a strong likelihood that it will not address dementia as a criminal justice system issue. In other jurisdictions, national strategies are largely silent on the matter. England’s plan mentions the criminal justice system once. It states that dementia awareness and skills are needed in all sections of society and among various workforces, including criminal justice system staff. The strategies of Northern Ireland and Scotland overlook the issue completely.

At home, our provinces fare no better. For instance, the issue is generally ignored in B.C.’s separate action plans for seniors, dementia and mental health. The matter is also passed over in Ontario’s seniors’ action plan, Manitoba’s dementia strategy and Saskatchewan’s mental health plan.

The ongoing oversight can be partly explained by the fact that government responsibility for older adults is often housed within health ministries. As I’ve written previously, when alleged elder rights violations occur, it is usually provincial health ministers who make a statement, not ministers of justice.

By incorporating the issue into a national dementia strategy, Canada has the opportunity to be a leader on improving how criminal justice systems manage elders with dementia.

2.     Advisory committees for national and provincial dementia strategies should include criminal justice system experts.

On February 25, 2016, the Honourable Rob Nicholson (Conservative MP for Niagara Falls) introduced a private member’s bill for a national dementia strategy. It was seconded by Robert Oliphant (Liberal MP for Don Valley West). The bill represents another attempt at passing legislation. In 2015, former NDP MP Claude Gravelle’s private member’s bill was narrowly defeated by one vote (139 to 140).

Both bills call for the appointment of an advisory board to advise the federal health minister on matters related to the health care of persons living with dementia. Under Mr. Gravelle’s bill, the advisory board would have been comprised of up to 20 people with knowledge or experience of dementia, including representatives from government health departments, the Alzheimer Society of Canada, and the medical field. Mr. Nicholson’s bill expands the list a bit further, to include representatives from government public health departments, the Alzheimer Society of Canada and other Alzheimer advocacy groups, health care professionals, and people living with dementia or their caregivers.

Neither bill mentions legal experts.

Including legal experts on the panel not only represents the symbolic integration of a health-centric model of dementia with a right-based approach, but it might also help ensure that governments pay greater attention to the challenges faced by vulnerable elders with dementia who have been accused of breaking the criminal law.

3.     Police forces should enhance officer training and update policy manuals regarding situations where the aggressor, suspect or accused might have dementia.

Vulnerable elders with dementia are at risk of potential harm when interacting with frontline officers. The harms range from cuts and fractures caused by handcuffs to serious injury or death caused by the excessive use of force. To be sure, officers may have the discretion to forgo the use of handcuffs if it is impractical to do so, such as when the person is infirm or disabled; however, from time to time, we hear concerning reports of people with dementia being handcuffed by police in care homes and in the community at large.

Police interactions have also resulted in the death of a vulnerable elder. A recent case from Chicago provides an unsettling example. The incident unfolded in July 2013, when police responded to a call about an agitated 95-year-old man who was in his room at an assisted living home. He was refusing to go to the hospital for a suspected urinary tract infection. The man was swinging a shoehorn and metal cane, and then a kitchen knife. He threatened to kill the officers.

Police entered the man’s room in a “stack” formation (a staggered, single-file line), with the lead officer carrying a shield and Taser. The officer ordered the man to drop the knife, which he did not do. The officer then fired the Taser, but missed. The second officer in the formation also ordered the man to drop the knife, and then fired four beanbag rounds from about six to eight feet away. Four struck the man.

He was taken to hospital, where he refused surgery to repair a torn intestine and other injuries that caused internal bleeding. He died hours later. The second officer was charged with reckless conduct.

At trial, a prosecution witness testified that the officers escalated the situation by storming into the man’s room despite having other options, such as using their ballistic shield to knock the man down, deploying pepper spray or simply retreating to allow the man to cool off.

In February 2015, however, the judge acquitted the officer, concluding that nothing he did was excessive, reckless or criminal.

To be clear, this devastating incident is the exception, not the rule, and stakeholders are working to improve interactions between police and people with mental health issues. Nevertheless, the deadly outcome is one signal that more can be done to improve encounters between law enforcement and vulnerable elders who are exhibiting aggressive behaviour.

Looking Ahead

In a future post, I will share some of my other recommendations for improving how the criminal justice system manages people with dementia, and ultimately, minimizes the risk of institutional harm. These recommendations will touch on pre-trial rights and the challenges posed by fitness to stand trial assessments, capacity for criminal liability, sentencing and incarceration.

 

Heather Campbell is a B.C. lawyer and master of laws student at the University of Saskatchewan. You can follow her on Twitter @SeniorsLaw. 

 

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