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By Heather Campbell

In April 2016, the United Nations Independent Expert on the enjoyment of all human rights by older persons reiterated the need to mainstream a rights-based approach to ageing in general, and to dementia in particular. The shift is needed because the rights of older people and individuals with dementia have traditionally been a low priority at both the national and international level.

Last year, the importance of embedding a rights-based approach to dementia came into sharp focus at the First WHO Ministerial Conference on Global Action against Dementia, which was attended by numerous stakeholders, including 89 UN Member States. Participants urged parties to ensure that “the development of policies, legislation, regulation, institutions and budgets are anchored in a system of rights.” The call to action was necessary because many dementia strategies are not explicitly underpinned by a rights-based approach (Scotland being an exception).

The dominant approach to dementia (and older adults generally) continues to be health-centric. As I’ve written previously, recent well-intentioned efforts in Canada to establish national strategies on seniors and dementia fall short when it comes to integrating a rights-based perspective. An unintended consequence is that people with dementia continue to be framed as patients first, and rights-bearing citizens second.

The significance is more than symbolic. The rights and dignity of people with dementia lack systematic protection, especially outside of the health care context. Take the criminal justice system, for example. It is ill-equipped to manage people with dementia who are accused of a crime. Yet the challenges faced by such individuals have attracted very little attention, and some people with dementia remain unnecessarily at risk of institutional harm.

In an earlier blog post, I made three recommendations for improving how the criminal justice system manages criminally accused individuals with dementia. My recommendations were:

  1. National and provincial dementia strategies should identify and address dementia as a criminal justice system issue
  2. Criminal justice system experts should sit on national and provincial dementia strategy advisory committees.
  3. Police should enhance officer training and update policy manuals regarding situations in which the aggressor, suspect or accused might have dementia.

I committed to writing about some of my other recommendations. In this piece, I identify my fourth suggestion:
4.     Re-evaluate domestic violence mandatory charging policies for situations in which the aggression may be a behavioural symptom of dementia.

In recent years, several tragic events in care homes have drawn attention to the challenges of resident-to-resident aggression. But as more policymakers embrace the aging-in-place philosophy, people with dementia are living at home longer. Institutionalization is now generally reserved for people with the highest acuity. Thus many people with dementia live in the community, in unstructured settings. Without meaning to sound alarmist, it is reasonable to expect that, if nothing changes, the number of aggressive incidents in the community may rise.

A spouse may be on the receiving end of violent behaviour. The police may be called.

Some forces have mandatory charging policies in domestic violence situations. That is, if officers have reasonable grounds to believe that a criminal offence has been committed, they must lay a charge. The accused is taken into custody and detained in jail.

The policies are “intended to send a message to the public that spousal abuse is both morally and legally wrong (general deterrence), and to deter individual abusive spouses from engaging in further violence against their partners (specific deterrence)” (Brown, 2000, p. 1).

However, in some cases, the message may be lost on a person with dementia.

Further, it may be dangerous for a person with dementia to be detained in jail; even bringing them to a hospital for medical assessment may make matters worse.

Mandatory policies are controversial. But there are no easy answers, including when it’s a case of domestic violence grown old but the new deviations are a behavioural symptom of dementia.

In 2009, an Ontario judge strongly urged a local police service to immediately terminate its unofficial policy of routinely detaining individuals charged with domestic violence. The policy resulted in unwarranted detention.

It is also arguable that mandatory policies interfere with an essential component of our criminal justice system: police discretion.

Justice Charron of the Supreme Court of Canada recently wrote, “[police] discretion makes it possible to apply the law more fairly in real-life situations faced by the police” (R v Beaudry, 2007 SCC 5 at para 3). Justice Charron continued:

“Applying the letter of the law to the practical, real‑life situations faced by police officers in performing their everyday duties requires that certain adjustments be made. Although these adjustments may sometimes appear to deviate from the letter of the law, they are crucial and are part of the very essence of the proper administration of the criminal justice system…. The ability—indeed the duty—to use one’s judgment to adapt the process of law enforcement to individual circumstances and to the real‑life demands of justice is in fact the basis of police discretion” (at para 37).

As stakeholders march toward the development of a national dementia strategy, it will be important to re-evaluate the criminal justice approach to domestic violence. Otherwise, the system may continue to unnecessarily criminalize some people with dementia.

Additional Resource:
Alzheimer Society of Waterloo Wellington & Guelph Police Service, Safe Pathways: Supporting dementia in the justice system.

HeatherCampbellHeather 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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