Elder Abuse

1
Elder Abuse Prevalence, Identification,
Response and Intervention.. Beyond the Basics

• Judith Wahl
• Advocacy Centre for the Elderly
• wahlj_at_lao.on.ca

2
About our Presenter

• Judith Wahl, Barrister and Solicitor, has been
  the Executive Director and Senior Lawyer at the
  Advocacy Centre for the Elderly (ACE) since 1984.
  ACE is a community legal service for low income
  seniors that focuses on legal issues that have a
  greater impact on the older population.
• Judith has organized and taught numerous public
  legal education programmes to social workers,
  health practitioners, and other social service
  providers on legal issues that arise in their day
  to day work with seniors, including Advance Care
  Planning - Physicians Training Ontario College
  of Family Physicians and Alzheimer Society of
  Ontario Gerontology Programme at McMaster
  University, Faculty of Social Sciences the
  Diversity Training Course at C.O. Bick Police
  College as well as Continuing Legal Education
  Programmes for the Law Society of Upper Canada,
  Ontario Bar Association, the former Canadian Bar
  Association Ontario, and the Canadian Bar
  Association National.

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Advocacy Centre for The Elderly

• 2 Carlton Street, Suite 701Toronto, OntarioM5B
  1J3
• Tel - 416-598-2656
• Fax - 416-598-7924
• Email wahlj_at_lao.on.ca
• Website NEW www.acelaw.ca

4
Overview

• What is Elder Abuse Lesson 1 The Literature
  isnt always Exactly Right
• Who is being Victimized Lesson 2 This is a
  community Problem and not just that of
  vulnerable persons
• Why People Dont Seek Help Lesson 3 the
  Systems SAY that help is there but the Practice
  doesnt always match the Ads

5
Overview

• Responses to Abuse Lesson 4 How Ageism impacts
  on approaches to addressing Elder Abuse
• Responses to Elder Abuse- Lesson 5 What do
  SENIORS and ALL SERVICE PROVIDERS and OUR
  COMMUNITY need to know to be able to prevent, and
  respond to abuse
• Traditional Responses to Address Abuse Lesson
  5 Are we doing things that make it LOOK like
  there is a Response when the way we respond
  doesnt work in practice? Possible Better
  Practices

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What is Elder Abuse ?

• What is elder abuse?
• What do you think is elder abuse?
• Do you think that the seniors in your community
  may have some different perspectives on this? If
  yes, why?

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Abuse of Older AdultsWhat is it?

• The mistreatment of an older person by someone
  they should be able to rely upon - a spouse, a
  child, another family member, a friend or a paid
  caregiver
• Any harm done to an older person by a person in a
  position of trust or authority
• any action or deliberate inaction by a person in
  a position of trust which causes harm to an older
  adult

8
Abuse of an Older AdultWhat is it?

• Many definitions - differs between
  professions/individuals
• We may assume that we are talking about the same
  thing but arent
• ultimately the definition debate is not that
  important as its the steps we take to prevent
  abuse and the response to abuse that is taken
  that is key

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Abuse of Older AdultsWhat is it?

• Not just criminal behaviours
• Not just civil matters
• Doesnt happen only to vulnerable adults
• The Complexity of the issue reflects the need for
  a variety of responses

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Abuse of an Older AdultWhat is it?

• Common theme in many definitions is abuse of
  power hence the emphasis on the relationship
  between perpetrator and victim
• relationships are abusive when a person uses
  various tactics to maintain power and control
  over a person

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Abuse of Power - What is it?
12
Abuse of Power- What is it?
13
Types of Abuse for which Seniors have contacted
ACE for assistance

• Most common inquiry by seniors to ACE concerns
  loss of the seniors authority/ when others may
  decide for the senior and when does he or she
  have the right to make decision for him or
  herself?
• Also systemic abuse when systems assume that
  seniors do not have rights , usually on the basis
  of wrong assumptions

14
Examples of Situations that can be called abuse
that ACE has assisted Seniors with

• Title and Mortgage Fraud
• Recovered title to Elderly woman's home where Son
  and daughter in law changed title to property
  using POA
• Mortgage-fraud case where ACEs client who had
  some cognitive impairment conveyed title to her
  home-renovation contractor, who then mortgaged
  her home three times to the extent of 450,000,
  with the mortgage proceeds having gone to the
  contractor.
• Set aside a Writ of Possession and successfully
  defended two mortgage actions that threatened
  eviction of an elderly widow whose son, grandson
  and her grandsons common-law spouse conspired to
  defraud her of title and steal mortgage proceeds
  using a forged power of attorney
• Successfully defended a mortgage action brought
  against a client whose daughter, while ACEs
  client lived in social housing, fraudulently
  placed ACEs client on title to the daughters
  home and refinanced it in ACEs clients name,
  before defaulting on the mortgages leaving ACEs
  client responsible for payment of the mortgage
  debt.

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Examples of Situations that can be called abuse
that ACE has assisted Seniors with

• Civil Action for Restitution - Recovered 28,000
  for an older woman with a developmental
  disability who had been sold 14 different
  insurance policies over a 30 year period that
  were of little or no value to her. The Insurance
  company was specifically informed that the woman
  had a developmental disability of a nature that
  she was not capable to contract, but they
  continued to sell additional policies to her.
  Court action was commenced for restitution and
  punitive damages. The action was settled for
  28,000 which represented the return of all
  premiums paid, plus interest, costs, and punitive
  damages. The funds are now being used to allow
  this woman to have a private room in a long term
  care home in which she now resides.

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Examples of Situations that can be called abuse
that ACE has assisted Seniors with

• Duty of an Executor - Recovered a 30,000
  testamentary trust left to ACEs elderly disabled
  client from his mothers estate, administered by
  his sister who had refused to account or turn
  over any part of the trust proceeds despite the
  intervention of two privately-retained solicitors
  
• Civil action to recover Debt- Obtained ongoing
  monthly payments of 1,500/month on a 70,000
  debt owed to ACEs elderly widowed client by her
  former neighbour, a school teacher, who had
  previously refused to make payment on her debt

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Abuse Case Examples Contd

• Professional Misconduct
• Lawyer- Complaint to Law Society- proceedings
  before Discipline Committee brought against a
  cognitivelyimpaired clients former solicitor,
  who charged her 3,000 to prepare a simple will
  and power of attorneys that were never signed,
  and whom refused to divulge the content of her
  file.  A finding of professional misconduct was
  made in September 2008, with disposition on
  penalty to follow.
• Physician- Obtained a decision from the Health
  Professions Appeal and Review Board that
  treatment without consent by a hospital physician
  formed professional misconduct for which the
  physician was sanctioned

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Abuse Case Examples Contd

• Gaps in Legislation - Obtained a decision from
  the Ministry of Health and Long Term Care to have
  the Complex Continuing Care rate be used to
  determine the charges for a 56 year old man who
  was a resident in a long term care home. Had the
  Long term care rates been applied to him, his
  wife and son living in the community, who were
  not eligible for welfare and had only limited
  employment income, would have been forced into
  poverty. ACE continues to advocate with the
  Ministry of Health and Long Term Care to address
  this problem of charges for long term care in the
  regulations to the new Long Term Care Homes
  legislation as this problem impacts all families
  in which one spouse, although young (under 65)
  must seek admission to a long term care home due
  to a chronic illness that cannot be managed in
  their own home. Also affects situations where one
  spouse over 65 is a resident in a LTC home and
  spouse in the community is under 65 and a
  dependent on the resident.

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Abuse Case Examples Contd

• Problems in the Health System and Systemic Abuse
  - Successfully defended a large number of clients
  who could not return to their own homes from
  hospital but needed admission to long term care
  homes who had been threatened with large per diem
  charges by hospitals when the clients exercised
  their legal rights in respect to admission to
  long term care homes that met their needs. ACE
  has also undertaken systemic advocacy with the
  Ministry of Health and Long Term Care to address
  this issue because of the high volume of cases of
  this type.

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Abuse Case Examples Contd

• Problems in the Health System
• Successfully advocated for a client to get
  admission to a long term care home of her choice
  when the various parties involved in her
  discharge at the hospital and at the Community
  Care Access Centre had failed to follow the
  required process and Ministry policy in respect
  to admission
• Assisted a man with a chronic degenerative
  disorder who could not live independently to get
  admission to a long term care home. Although he
  needed long term care, he had been refused
  admission by all the long term care homes to
  which he had applied. He also could not get
  admitted to a hospital because he did not have
  high enough care needs to be eligible as a
  complex continuing care patient. ACE staff
  advocated with the Community Care Access Centre
  and with the Ministry of Health and Long Term
  Care to get admission into a long term care home.
  This advocacy took place over nine months, This
  case illustrates the need for a formal process
  and a patients right to a review of refusals of
  admission by long term care homes

21
Legal Definitions in Criminal Code - Physical
Abuse

• Assault s 265
• Assault with a weapon or causing bodily harm s.
  267
• Forcible Confinement ss 279(1)

22
Sexual Abuse, Neglect, Mental Abuse

• Sexual Assault s.271
• Breach of Duty to Provide Necessaries s.215
• Intimidation s.423
• Uttering threats s.264.1.

23
Financial Abuse

• Theft s.322
• Theft by a Person Holding a Power of Attorney
  s.331
• Fraud s.380
• Extortion s.346
• Stopping Mail With Intent s.345
• Forgery s.366

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Definitions of Abuse

• Doesnt need to be labelled elder abuse to be
  that
• Abuse occurs in systems when the law is not
  followed
• Abuse occurs when misinformation about rights /
  responsibilities is given out
• Services may contribute to abuse when they give
  authority to Attorneys in POAs or to SDMs that
  they dont have

25
Definitions of Abuse

• Definition of Abuse in long term care settings -
  different perspectives on what is good care
• - different perspectives because it is a work
  place for the service providers but the home of
  the residents
• - similar issues arise in respect to other
  services where there may be a disconnect in
  what the users and providers think of as abuse

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Who are the victims of abuse?

• Who do you see that you think are victims of
  abuse?
• Why do you think they are victims of abuse?
• Have you talked to the person you think is being
  abused about what you think is happening to them?

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Profiles of Victims and AbusersWhat the
Literature Says
VICTIMS may
ABUSERS may

• Be widowed or living alone
• Be socially isolated
• Be under the control or influence of the abuser
• Have some degree of physical impairment or
  mental incapacity
• Be physically frail, but mentally capable

• Have substance abuse problems
• Have a history of mental illness or emotional
  problems
• Be dependent on the older person for assistance
• Be resentful of caregiving role
• May not have visible dysfunctional traits

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Profile of Victims and Abusers

• Is the Literature up to date?
• Victims may ALSO be very able people and not the
  traditionally vulnerable person
• Abusers may seem very helpful and concerned for
  the victim
• Victims may become victims because they see the
  abuser as being helpful and themselves as needing
  help or companionship or.
• Watch out for your own stereotyping
• Dont let a stereotype approach to abuse direct
  how you/your community responds

29
Risk factors for abuse

• Family history of abuse
• Physical frailty
• Cognitive status
• Isolation
• Finances
• But Also Lack of Knowledge of Rights -
  Dependency on Systems that dont know the
  rights of the seniors or have different
  perspective on what the rights of the senior are

30
Data on Prevalence

• Depends on how you define it and how the data
  makers define it/ perceive it/ etc
• Seems to be no current comprehensive Canadian
  research on prevalence- Stats Canada discussing
  doing such a study

31
Europe Simon Biggs et al.

• Germany- 1 in 4 subjects age 60 report incidents
  of verbal aggression by family and household
  members
• 1.3 older men and 1.6 older women report
  physical violence
• -prevalence of physical and psychological abuse
  twice as high for 40-59 than plus 60
• UK- any mistreatment 2.6 neglect 1.1,
  financial .7 psychological .4 Physical .4
• Nordic countries- recent concern with over
  medication , restraint, and understaffing in care

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What do you do/ is possible for you to do when
you see abuse?

• What do you do/ can do if you think abuse is
  happening?
• What are the challenges for you in responding?
• What are the challenges for the victim in doing
  something?

33
The Abuse Dynamic

• Abuse of older adults more parallel to domestic
  spousal abuse than child abuse
• a different dynamic than spouse abuse because
  abuser may be own child
• you can divorce your spouse but not your child
• Older adults are ADULTS not children, even if
  they lack mental capacity for some purposes

34
Why Seniors Fail to Seek Assistance

• Shame, guilt, fear of reprisal
• fear of police and court system or belief that
  police cant help
• fear of not being believed
• dont realize they are being abused
• dont know their rights in a system
• cannot see an alternative to the situation
• are not aware of support services that could help
• fear of being placed in an institution

35
Why Service Providers Fail to Talk to the Senior
or to Contact Police or Help Directly

• Reluctance of raising the issue with the senior
• Belief that if they talk to the senior the senior
  will refuse help
• Belief that information they have is confidential
  to them alone
• Failure to recognize abuse as a crime
• Fear of the abuser
• Reluctance to be a witness
• Lack of understanding of the Seniors rights in a
  system

36
Would you respond differently to a younger woman
that was being abused within her family than to a
senior that is being abused within his or her
family?

• And why?

37
AGEISM

• The prejudicial stereotyping discrimination
  against older people
• It is important to examine whether you carry with
  you ageist attitudes in how you look at abuse and
  respond to abuse

38
AGEISM

• Diminishing the self worth of senior
• Assumptions, e.g. physical frailty vs mental
  frailty, treating senior like a child, removing
  decision making process
• Ignoring a seniors wishes
• Brush offs
• Assumptions about the Seniors rights in the
  system eg Hospital Discharge or Rights within a
  Retirement Home or Personal Care home

39
Capacity and Substitute Decision-Making

• Most older adults are capable of making their own
  decisions
• Capacity can change from decision to decision,
  and from time to time
• There is not a single test that determines
  capacity for all times and all purposes
• Watch out for a Best Interests Test a Capable
  person has the right to Risk

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Important Tips on Capacity Issues

• Do not automatically assume that frail elderly
  people are incapable
• Speak with the older person, not around him/her
• Help to empower the older person
• DONT assume that the Attorney in a POA has power
  just because he or she is named in a POA
• Understand when the attorney in a POA HAS power
  and what power they have and when they dont have
  power
• Understand the Authorities ( or lack thereof of
  an SDM)
• Recognize potential conflicts of interest
  opportunities for elder abuse by a substitute
  decision-maker

41
Best Interests vs. the Seniors Right to Decide

• Although people say that they believe any abuse
  response should be from the point of view of the
  older adult, when the time comes when the
  service provider faces the tough situation
  best interests rather than support may occur
  someone may decide FOR the senior despite the
  fact that the senior is mentally capable someone
  else may assume that they know better

42
Lets talk about possible response to elder abuse

• What do we need to know in order to respond and
  help people or help people get help?
• What do you think you dont know about and what
  to know more about?
• Where do you get that info?

43
Things to Think About in Creating Options to
Respond

• Need to understand what victims WANT and NEED as
  opposed to what Service Providers and Others Want
  and Need
• Need to Understand why people REFUSE help

44
Needs of Victims (1)

• 1. To Stop the Abuse
• 2. Safety, Shelter
• 3. Financial Resources
• 4. Home Support Services/Housing Alternatives

45
Needs of Victims (2)

• 5. Emotional Support, Counselling, Links to the
  Community
• 6. Information on the Criminal Justice System
  and on Other Legal Rights/Remedies

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What do YOU think you need to know more about?

• Authority of people for their own decision making
  and what that means
• Services and systems that are in your community
  that are not necessarily labelled as elder abuse
  services
• Duties and powers of attorneys in POAs and when
  the attorney has that power and authority
• Powers and authorities and duties of other SDMs
  and when they have that authority
• Privacy and how that impacts on what you do and
  how you help
• How to gain access to people that may be victims
  of abuse
• How to talk to people about possible abuse

47
Other specific response to Elder Abuse

• There is often a stereotyped response form people
  when they talk about elder abuse
• We see repeated calls for mandatory reporting
  legislation or services like Elder abuse hotlines
  . But .when people ask for these response do
  they understand how these ACTUALLY work and NOT
  WORK ??

48
Other Responses to Elder Abuse -- The Usual
Responses But..

• Reporting legislation in the Community does this
  work and would it help? Who does it help? What
  are the limitations of such a system? Is it a
  best practice or is something else better?
• Reporting legislation in Health Care Facilities
  (Long term care homes). Why is that there and
  does it work and who and what does it depend on?

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The Usual Responses But..

• Hotlines How do these work? What are their
  limitations? Who do they help? What is necessary
  for these to be effective?
• Protocols- What are these and how do they work
  and what are their limitations and how do you
  limit the limitations
• Education to Raise Awareness what works, what
  doesnt, what are some of the challenges.
• Community Consultation Teams - do these work,
  and what about privacy, and what are their
  limitations
• What else????

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And What About?

• Other Legislative Changes ie Retirement Homes and
  Home care?
• Training and better understanding about the law,
  policies and practices about mental capacity,
  decision making authority, health consent,
  advance care planning, privacy and
• Legal Services for Older Adults?
• Other Supportive Community Resources and
  Community Networking ? Provincial and local
  resources?
• Public intervention by the Public Guardian and
  Trustee in respect to Persons that are Incapable
  and at Risk of Serious Harm?

51
Other Systemic Abuses

• Inappropriate hospital discharge
• Use of advance directives/ level of care forms
  instead of consent
• Requiring seniors to do things that are not
  requirements in the law and not necessarily the
  best for the senior but are done for
  institutional convenience or for other reasons
  that benefit someone other than the older adult
• HOW do we address / respond to these issues?

52
Main Lesson Learned through our work at ACE

• TALK TO THE SENIOR!!!!!!!
• Most people say that they want to get the message
  out any response will be senior focused and that
  if at all possible with the consent and at the
  direction of the senior BUT much lip service is
  given to this in practice, often unintentionally
  sometimes because they dont have time, or
  because

53
Specific Service Responses

• When services say that they are responding is
  that the case?
• How many seniors services use voicemail to
  answer the phone? Does this really help the older
  adult get access?
• How many services set up protocols but then dont
  allocate time to learn them, or integrate them
  into the service, or use them to give access? Or
  are the protocols used to limit access?
• How many services set up rules or eligibility
  requirements that do not necessarily reflect the
  governing law?

54
Main Lesson Learned through our work at ACE

• Many services SAY that they are senior focused
  but arent in practice
• Systemic abuse is very difficult to address as it
  requires major policy change in some cases
• With the growing population of seniors these
  changes better start or there will be significant
  problems in our communities across Canada

55
Looking Beyond the Usual

• Is it possible to look beyond the usual ?
• Will the responses work in practice?
• Do the responses actually meet the seniors
  needs?
• How do we go beyond saying that we are doing
  things and move into actually making progress and
  helping in a way that seniors find meaningful and
  not just the service providers and politicians
  find meaningful?

56
Something to Think About

• What can YOU do
• To increase awareness about abuse of older
  adults?
• To help prevent abuse ?
• To support those services that are working with
  seniors to prevent abuse and to respond to abuse?