LEGAL INTERVENTIONS TO PROTECT VULNERABLE ADULTS: CAN RELATIONAL AUTONOMY PROVIDE A NEW WAY FORWARD?

• Date: 01 January 2019
• Author: Braun, Joan

1. INTRODUCTION

   In this article I examine vulnerability and autonomy in the context of elder abuse and adult protection legislation. Autonomy and vulnerability have received considerable recent attention from scholars, but the focus has been on theory rather than how these theories apply in practice. One limitation of the emerging literature on relational autonomy "is the lack of definitional interrogation of what relationality means in the everyday, situated, lives of individuals". (1) This article focuses on the situated lives of older adults at risk of harm and asks how society should protect vulnerable adults if they do not want state assistance. This situation raises the question of how to address vulnerability without overriding autonomy. I examine this issue through a discussion of adult protection legislation and argue that new approaches are needed. New approaches will require reconfiguring current understandings of autonomy and vulnerability and identifying ways to incorporate these understandings into life situations. I argue that this endeavor should be informed by relational understandings of autonomy rather than traditional liberal understandings of autonomy. (2) I conclude that empirical research is required in order to examine practical applications of these issues in the context of state response to elder abuse.

   This article proceeds with five sections. In the next section (section two) I describe adult protection legislation. In the third section I discuss autonomy and vulnerability and introduce relational autonomy theory. In the fourth section I explore how relational theories of autonomy apply in situations where elder abuse is occurring. In that section I use British Columbia's Adult Guardianship Act (AGA) as the context for the discussion with reference to emerging themes from a current study about the AGA. (3) The final section (section five) is the conclusion.

2. ADULT PROTECTION LEGISLATION

   Most jurisdictions have laws that protect adults who society deems to be vulnerable although there is great variation across jurisdictions in regard to who is protected and the specifics of that protection. In this article I use the term 'adult protection legislation' to describe this type of legislation although I recognize that this term is more commonly used in some jurisdictions than others. (4) Adult protection legislation has one common feature which is to fulfill state responsibility to care for those unable to care for themselves (a responsibility rooted in the parens patriae jurisdiction). The differences in scope reflect policy choices about autonomy, vulnerability and protection.

   A. Adult Protection Legislation and Older Adults

   Older adults and adults with disabilities are two groups commonly viewed as vulnerable and in need of protection. (5) Some jurisdictions have statutes that extend protection to all adults above a certain age which is in keeping with a common perception that older adults are a vulnerable population. (6) In other jurisdictions protective provisions only apply when a specific standard is met or only apply to adults in specific life circumstances. For example, a statute may apply to persons with intellectual disabilities, impaired mental capacity, or specifically to persons residing in care facilities. Even when adult protection laws do not contain age-based criteria older adults may fall within their purview for other reasons such as health and capacity issues that meet statutory criteria (there is a higher prevalence of dementia in the older adult population, for example). (7)

   The elder law field in Canada and beyond has been rife with debate about how to balance competing policy objectives of protection and autonomy. As the authors of one legal research project explain:

   A consistent and challenging issue is how to balance the two values of protection and independence.... Canadian jurisdictions vary greatly in their approaches. Protection requires some compromise of independence for the sake of an adult's well-being; the challenge is to devise a framework that sacrifices as little independence as possible. (8) When the scope of an adult protection law is narrow, applying to a small percentage of the population only, the state can fulfill its parens patriae duty while minimally intruding into the lives of its citizens. (9) However, even when adult protection laws are narrowly drafted, they still give the state the authority to intrude. Further, a law may be drafted narrowly but interpreted broadly by the state agents who implement the law; a broadly drafted law may also be interpreted narrowly. There are many explanations for why this might occur including ambiguities about how to apply the legislation in complicated practice situations. This issue is discussed in more detail in the fourth section of this article.

   B. Example of Adult Protection Legislation

   In Canada adult protection laws do not use age as the criteria for determining application of the statute but rely on other standards. (10) Part 3 of British Columbia's AGA illustrates this point. (11) Part 3 of the AGA authorizes intervention when the criteria in s. 44 are met:

   S. 44 The purpose of this Part is to provide for support and assistance for adults who are abused or neglected and who are unable to seek support and assistance because of

   (a) physical restraint,

   (b) a physical handicap that limits their ability to seek help, or

   (c) an illness, disease, injury or other condition that affects their ability to make decisions about the abuse or neglect.

   When a designated agency (12) receives a report of abuse or neglect of an adult who is unable to seek support and assistance it must ascertain whether the adult is abused or neglected and whether the adult is able to seek support and assistance. If the answer to these questions is no the designated agency must close the matter or refer it to the Public Guardian and Trustee. If the answer to these questions is yes, the following provision applies:

   S. 47(3) If the designated agency determines that the adult needs support and assistance, the designated agency may do one or more of the following:

   (a) refer the adult to available health care, social, legal, accommodation or other services;

   (b) assist the adult in obtaining those services;

   (c) inform the Public Guardian and Trustee; or

   (d) investigate to determine if the adult is abused or neglected and is unable, for any of the reasons mentioned in section 44, to seek support and assistance.

   Under Part 3 of the AGA the designated agency has authority to pursue various interventions including obtaining a court order enforcing a support and assistance plan, entering into a residence to investigate a report, arranging capacity assessments and obtaining a court restraining order. Typically, the first step is to offer the abused adult a support and assistance plan. If an adult refuses the plan a secondary question is asked: does the adult have the legal capacity to make this decision? If not, the designated agency may decide to impose more intrusive interventions to protect the adult.

   C. Autonomy and Adult Protection

   Questions about vulnerability and autonomy arise within the context of adult protection legislation in three ways. First, if the state intervenes when an adult does not want intervention this infringes the adult's right to make autonomous decisions. The exception is if that adult lacks legal capacity. If so, the state has the legal justification to over-ride the adult's wishes. Regardless, this interferes with autonomy even if there is legal justification for it.

   Second, in jurisdictions where protective provisions apply when adults lack the ability to make decisions on grounds broader than legal incapacity, this may result in the state intervening contrary to the adult's wishes even when the adult is legally capable.

   Third, when a state agent receives a report of abuse of a vulnerable adult the state agent must evaluate that adult's ability to make decisions. This raises questions about whether the adult is able to exercise autonomy. For example, the state agent may ask questions such as: 1) does the adult have the ability to choose how to respond to the abuse and 2) does the adult have the ability to take action to protect him or herself. (13)

   III EXISTING LITERATURE--AUTONOMY AND VULNERABILITY

   In this section of the article, I briefly describe theories of autonomy and vulnerability and discuss why relational theories fit the life experience of older adults better than traditional theories of autonomy.

   A. Vulnerability, Autonomy and Protection

   I begin by discussing autonomy and then proceed to a discussion of vulnerability and an exploration of these concepts in the context of abuse and protection.

   1. Autonomy

      There are many theories of autonomy each having different criteria for determining whether a decision is autonomous. Theories can be categorized into procedural theories which are content neutral but require a specific (intellectual or reasoning) procedure to be followed for a decision to qualify as autonomous, and substantive theories which require the decision to have specific content relating to beliefs, values or desires in order to qualify as autonomous. (14)

      Although this is a useful distinction, I believe that the more important distinction is between traditional theories of autonomy and relational theories of autonomy. The former theories are based on the liberal paradigm and emerge out of enlightenment thinking. Traditional theories of autonomy share a central theme which is that self-determination or self-government as the defining characteristic of free moral agency. (15) Autonomy, as per liberal thought, is the ability to make decisions independently and self-sufficiently without reference to context, relationships or other factors. This perspective has been critiqued extensively by feminist scholars who argue that autonomy must be considered within the context of social...