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Decriminalizing persons with dementia | Heather Campbell Pope

Tuesday, September 14, 2021 @ 10:32 AM | By Heather Campbell Pope

Last Updated: Monday, May 30, 2022 @ 12:18 PM

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Heather Campbell Pope
In most cases, using the criminal law to manage a person with dementia’s harmful behaviour is a flawed strategy that will predictably fail. It places unrealistic expectations on an individual who has shown great difficulty or an inability to control impulses. Yet time and again, the blunt force of the justice system is inflicted upon people with dementia who need care and compassion.  

This federal election, it is past time for political parties to address society’s over-reliance on the criminal law as a means of dealing with behavioural symptoms. Without legal and policy reform, criminalized persons with dementia will continue to suffer a serious personal toll.

Across Canada, alternatives are needed to a system that sets them up to fail.

Too often, resident violence in long-term care follows a pattern of insufficient action by institutional leadership, administrators and frontline staff. While such negligence can trigger a chain of legal consequences, including civil lawsuits, employee termination and professional discipline, the aggressor with dementia often bears the brunt of the judicial aftermath, suffering a disproportionate burden for their symptomatic behaviours.

Last month, the B.C. College of Nurses and Midwives cancelled the nursing registration of a former regional manager of a care home who allegedly left female residents vulnerable to assault by a male resident with a known history of sexual misconduct.

The perpetrator, who the college described as a “vulnerable resident with unmet care needs,” was charged with sexual assault. The charge was stayed after he agreed to a peace bond, a legal instrument intended to prevent future misconduct. Breaching its conditions is a crime that can result in imprisonment.  

The man, who was known to walk around naked at night and go into other residents’ rooms, still lives at the home, mercifully in a different area and with heightened security.

One of the most serious cases of injustice occurred in Ontario, where a psychiatrist assessed a dementia patient who had a history of aggressive behaviour toward other care home residents. The doctor suggested that police consider charging the man if he committed another assault. The stated purpose was to help him understand the seriousness of his actions.

A year later, in 2013, he violently attacked two women, killing one and severely hurting another. He was charged with first-degree murder and attempted murder.

While not inevitable, the tragic outcome was predictable. A government investigation found that the care home did not develop any strategies to protect other residents from the man’s aggressive behaviours. He was not relocated, despite a doctor suggesting he posed a chronic risk to frail seniors and was therefore a better candidate for a psychiatric group home. When he refused to take anti-anxiety medication, staff did not consider alternative interventions to calm him down. At trial, the government report was not shown to the jury.

In 2017, the 76-year-old man was found guilty of second-degree murder and sentenced to life in prison with no parole eligibility for 10 years (R. v. Brooks 2017 ONSC 439).

Two years ago, the Trudeau government launched Canada’s first national dementia strategy. Its narrow scope overlooks the plight of persons with dementia who enter the criminal justice system due to symptoms of their disease. This is unacceptable in a country like Canada.

To encourage the political will to address these issues, Dementia Justice Canada has asked federal party leaders for their commitment to developing and implementing a national Roadmap to Justice to ensure the fair, just and compassionate treatment of criminal defendants with dementia.

As of Sept. 12, the NDP is the only party to clearly acknowledge the criminal justice system’s devastating consequences on persons with dementia. They also shared our disappointment that the national dementia strategy excludes those who move through the justice system prior to conviction.

The Liberal Party said they “know that more can and needs to be done to support individuals with dementia.” The Conservative Party has not answered our question. Responses are available on our election webpage.     

No matter who wins on election day, the next federal government must work with provinces, territories and other stakeholders to develop a plan that improves how society manages persons with dementia who harm others. Like their victims, criminal defendants with dementia need a safe home, compassionate care and accessible justice.

(Editor’s Note: The author has updated this article to support trauma-informed writing; i.e, writing with more recognition of what causes trauma.)

Heather Campbell Pope (LLB, LLM) is a former B.C. lawyer and founder of Dementia Justice Canada. She worked for the B.C. Care Providers Association in policy and research. Follow her at @SeniorsLaw.
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