Gregory K Steele QC Prize Winning Paper in Elder Law for 2021-22: Canada and the UN Principles for the Older Person
June 21, 2022
BY Samuel Baxter
In December of 1991, the United Nations (UN) established a list of principles for the rights of older persons that they encourage members to incorporate into their national programmes: independence, participation, care, self-fulfilment, and dignity. The original purpose of this paper was to draft a Canadian Charter for the Rights of Elderly Persons. This Charter would be necessary as UN resolutions are not made law in a signatory’s country, but are instead a set of guidelines for signatory nations to consider when passing compliant legislation specific to that country and its culture.
Canadian legislation goes to significant lengths to uphold these basic principles: participation and self-fulfilment are secured via the Charter and numerous social and educational programs, grants, and loans; but unfortunately, practical, financial, cultural, and social barriers can prevent older people from having their rights to independence, care, and dignity protected. In some situations, the legislation can cause older people to lose their fundamental rights due to the law being misapplied, misunderstood, or outright abused.
For example, an older person may be deemed to “lack capacity,” because the older person is forgetful to the point of being a hazard to themselves and others, for example, by forgetting to turn off a stovetop or to take their pills. In such a case, the older person is considered to lack the capacity to live independently, and it is assumed that they would be safer and happier living in an assisted-living community, or with family, or having a live-in caregiver.
However, a number of concerns arise when a person is deemed to lack any form of capacity. Family members, legal professionals, and medical carers tend to forget, or be unaware, that a person can lack capacity in one area, but be otherwise capable. As a result, the person’s autonomy may be disregarded in an attempt to address their lack of capacity, preventing them from living the way they prefer with assistance. Studies have found that people who are denied autonomy tend to feel helpless, hopeless, and self-critical[1], and experience “low self-esteem, passivity, and feelings of inadequacy and incompetency”[2], while older persons with greater self-determination are healthier, more independent, more well-adjusted, and better able to recognize and resist abuse[3].
Unfortunately, the ability to resist abuse is a significant issue among the elder population, as abuse by family or long-term care facilities may not be recognized because of ageist or ableist beliefs. In one case, an older person died while in the care of a nursing home due to negligence; the older person’s family were unable to recover any damages because “their mother had long ceased to be a companion for she had been physically, mentally, and emotionally incapacitated for a considerable time before her death.”[4], [5] The judge deemed that because the older person was completely incapacitated, the nursing home did not need to pay damages for leaving them to die from lack of care. The Advocacy Center for the Elderly (ACE) submits that the rights of older persons are not adequately protected in Canada due to three primary factors: “[the] power imbalance between older adults and their service providers; the limited awareness of legal rights by both older adults and service providers; and ageism”[6].
There are, however, times when older people are protected from abusive family members via declarations of incapacity by their medical caregivers. There have been reports that healthcare workers, to help an older patient that is being abused by their family members, had the older person deemed incapable so that the Ontario Public Guardian and Trustee would intervene and remove the older person from the abuser’s guardianship.[7] While the intentions of the medical caregiver are laudable, this kind of intervention is a rare case of someone using a broken system to benefit a victim of another crime.
What is more common is that the caregiver does not properly understand the basic definition of “capacity”, and what it means to “lack capacity”. In Ontario, a person’s capacity can be assessed by an evaluator, which is defined as a member of a specified health or social work college, according to the Health Care Consent Act.[8] However, the Health Care Consent Act does not require that the evaluator be trained in conducting evaluations, just that they be a member of one of the specified medical or social work colleges, many of which do not provide or require such training.[9] Also there is no definitive test to determine capacity.[10] A person can be deemed to lack capacity by someone who is technically qualified by the relevant legislation, but has no understanding of how to properly determine capacity.[11]
Once a person is deemed to lack capacity, or, incapable, the decision of where the older person will live the rest of their life falls to their substitute decision-maker (the spouse, their child, their next of kin, or whoever they had assigned before being declared incapable).[12] Canadian courts and the Consent and Capacity Board have repeatedly found that evaluators are ill-informed as to the test of capacity,[13] which is extremely concerning, considering that the difference between the lawful admission of a person into a long-term care home and false imprisonment in a care facility is entirely based on the informed consent of the person being admitted to the facility.[14] Further concerns arise when one considers that evaluators often conflate an older person’s capacity with what the evaluator believes is in the person’s best interest: this dynamic can result in instances of the older person being deemed incapable merely because they disagree with the evaluator’s recommendations for treatment or for their admission to a long-term care facility.[15]
The entire process can be accomplished without the older person having the opportunity to speak for themselves[16], without any opportunity for the older person to challenge the healthcare provider’s declaration of incapacity. In fact, the process does not require, nor have a designated point for, the older person to voice their opinion on what should be done; as a result, where they will be living, who will be taking care of them, and how their money will be spent can all be decided for them without them having a chance to say anything about it.
My full paper, which examines Canadian legislation and medical-legal culture through the lens of the UN Principles for the Rights of Older Persons can be found here. I conclude that the rights of older persons in regard to participation and self-fulfilment are secure, while there is much to be desired in regards to the rights of independence, autonomy, care, and dignity, to the point of a systemic disregard and neglect for the well-being of older persons.
Samuel (Colin) Baxter graduated from Bora Laskin School of Law in 2022, and is currently studying for the Ontario Bar Exams in July. He intends to go into the Real Estate field, and hopes to work with housing charities in Toronto to benefit elderly persons.
To read Samuel’s complete paper, visit this page.
This year’s Gregory K Steele QC Student Prize in Elder Law was sponsored by Clark Wilson.
[1] Edward Deci, Intrinsic Motivation (Boston, MA: Springer, 1975) 208.
[2] Bruce Winick, “The Side Effects of Incompetency Labeling and The Implications for Mental Health Law” (1995) 6:42 Psychology, Public Policy & L 21.
[3] Brian O’Connor & Robert Vallerand, “Motivation, Self-Determination, and Person–Environment Fit as Predictors of Psychological Adjustment Among Nursing Home Residents” (1994) 9:2 Psychology & Aging 189.
[4] Romano, Lisa & Jane Meadus, “Congregate Living and the Law as it Affects Older Adults” (5 August 2009) at 12 online (pdf): Advocacy Centre for the Elderly <www.advocacycentreelderly.org/appimages/file/ACE-LCO-Congregate_Living_and_the_Law_as_it_Affects_%20Older_Adults.pdf>.
[5] McDonnell Estate v. Royal Arch Masonic Homes Society, [1998] 5 W.W.R. 268.
[6] Romano, Lisa & Jane Meadus, supra note 4 at 83.
[7] Chapter VII of Law Commission of Ontario. Legal Capacity, Decision-Making & Guardianship: Final Report (Toronto: Law Commission of Ontario, 2017), online (pdf):www.lco-cdo.org/en/publications-papers/ at 209-210.
[8] Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. As. 2(1)
[9] Meadus, Jane E. “Admission to Long-Term Care Homes: Are Evaluations of Capacity Being Conducted in Accordance with The Law”, (July 2021) at 1, online (pdf): Advocacy Center for the Elderly <www.acelaw.ca/appimages/file/Admission%20to%20LTC-Are%20Evaluations%20being%20Conducted%20in%20Accordance%20with%20the%20(updated%20Aug2016)___.pdf>.
[10] Ibid at 3.
[11] Ibid at 2.
[12] Ibid at 2.
[13] Ibid at 4.
[14] Ibid at 6.
[15] Ibid at 8.
[16] Law Commission of Ontario, supra note 7 at 213.
