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| Heather Campbell Pope |
While these rights violations raise serious questions about the unchecked emergency powers given to authorities to detain abused and neglected seniors against their will, sometimes for significant periods of time, we should also be asking why these cases escalate to crisis levels, especially in situations where the vulnerable adult has a history of declining offers of support.
One uncomfortable answer is our deeply rooted culture of autonomy, a well-intentioned hands-off approach to adult protection that has been built into the guardianship act itself. As the legislative guiding principles state, capable adults are entitled to live as they wish, as long as they do not harm others.
Visit after visit with seniors who are refusing services, non-intervention is justified as respecting their “right to live at risk,” a popular mantra that has left little room for society’s moral obligation to care for its most vulnerable, including people with brain disorders like dementia who are mistreated, neglected and often isolated and lonely, conditions that can contribute to their perceived stubbornness and rejections of help.
In many cases, as the commissioner observes, authorities are able to find informal solutions that provide vulnerable adults with the help they need. But sometimes nothing works.
Maggots keep filling wounds, bandages are ripped off, medication is not taken. “He is choosing to be neglectful,” autonomy proponents say.
A bruised and malnourished older woman wants to leave hospital and go back home, where she lives with her angry and alcoholic son. “She is choosing to stay with her abuser,” the dominant justification goes.
Support can be offered but not forced — until the moment the senior will die or be seriously harmed without immediate help. At that point, autonomy takes a backseat to life- and limb-saving measures. In such a crisis, if there is apparent abuse or neglect, and the adult appears to be incapable of giving or refusing consent, authorities can use reasonable force to enter their home without permission, take them to a safe place like a hospital, provide emergency health care, and take other necessary emergency measures to protect them from harm.
Emergency detentions are lasting days, weeks and in some cases even months. Between 2018 and 2023, the commissioner found that nearly 70 per cent were for more than five days, 31.2 per cent were over 10 days and 8.2 per cent lasted over a month. The longest was 212 days.
These interventions are even more troubling given the lack of procedural safeguards that protect constitutional rights, such as prompt access to a lawyer. In the data reviewed by the commissioner, access to legal counsel was facilitated in less than half of the detentions, an astonishing pattern of rights violation that is contrary to domestic and international law.
At best, authorities are advising detainees about their right to contact a lawyer and giving them a brochure with a phone number. But for detainees with cognitive impairments like dementia, simply getting a piece of paper with a legal clinic’s contact information is not enough. Many of these seniors need help initiating and maintaining contact with legal counsel because of executive function deficits, memory problems or distrust of others, a legitimate feeling that might intensify if authorities used deception to enter their home and take them to hospital.
But instead of helping detainees call a lawyer, the autonomy principle prevails, forbidding common sense and moral responses by service providers. The senior is abandoned again.
These cases also contribute to moral distress among social workers and other professionals, who know the right thing to do but are prevented from doing so by autonomy-based laws and policies that constrain their ability to provide skilled, ethical care.
The commissioner has made 10 recommendations to ensure emergency detentions comply with human rights law. As the provincial government considers them, let’s also question the value of unfettered self-determination when the result is the sudden, significant and lengthy deprivation of liberty.
Dignity might be better preserved by earlier intervention.
Heather Campbell Pope, LL.B., LL.M., is founder of Dementia Justice Canada, a small nonprofit dedicated to safeguarding the rights and dignity of people with dementia.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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