Dementia beds are smart investments
The criminal law is often the wrong tool to deal with violent dementia patients. Yet time and again, older Canadians with the disease are shuffled into courtrooms to face serious charges.
Months, sometimes years pass as they languish in forensic units that do not specialize in complex dementia care. These cases often raise the same question: why don’t prosecutors withdraw the charges?
While most people with dementia will not enter the criminal justice system, a recent case in southern Alberta is a familiar story. On Jan. 31, a 73-year-old woman with frontotemporal dementia was arrested and charged with the attempted murder of her husband after an altercation at their home. After several nights in a Calgary jail, a judge sent the woman to a forensic hospital, where a doctor assessed her as unfit to stand trial.
By mid-April, she was still detained at the forensic hospital. Doctors were assessing whether she was not criminally responsible for the alleged attack due to a mental disorder.
Prosecutors have a powerful and hard job in the criminal justice system. Their main role is not to secure a conviction; rather, it is to pursue justice.
Once charges are laid, prosecutors must decide whether to prosecute or end the case. This can be a difficult decision, especially where an alleged victim is seriously hurt or killed. To proceed, the charge must meet the evidentiary threshold. This test varies across the country. In
Ontario, there must be a reasonable prospect the accused will be convicted.
Continuing the criminal case must also be in the public interest. However, prosecutors have shown reluctance to withdraw charges against dementia patients because of public safety concerns.
Prosecutors need assurances the accused’s behaviours can be managed in a way that mitigates risk. In many cases, this symptom management can be provided in a geriatric unit that specializes in complex dementia care; however, accessing these beds can take time because there are often wait-lists.
For many people with dementia, prolonged detention in a forensic hospital can lead to a downward spiral. While extreme violence by people with dementia is rare, symptoms of the disease can manifest as aggression and other antisocial behaviour. Institutional conditions can also make the accused’s brain health worsen faster than expected. In hospital, they may get agitated and lash out at a nurse or another patient.
To stop this vicious cycle, governments across Canada must fund more specialized behavioural beds so accused people with dementia can avoid detention in forensic hospitals or at least be transferred from them in a timely manner.
Some jurisdictions are making progress. Earlier this year, the Ontario government announced funding for 51 new specialized beds in Brampton, Etobicoke and Timmins, bringing the total to 398 beds in care homes across the province. The government also boosted funding for all 21 behavioural specialized units in the province.
To be sure, there are legal concerns about getting consent to admission and treatment in specialized units. The buildings may also be far from family and friends, thereby isolating the person from familiar emotional support and companionship.
But often, rapid access to a specialized bed would be a good option for an accused with dementia. The senior would receive appropriate care in an appropriate place, and securing a bed might motivate prosecutors to withdraw the charges.
In many dementia cases, ending the prosecution speaks to the wisdom of the old legal adage that says madness is its own punishment. There will be times a criminal law response is warranted, but often, little purpose is served by criminalizing people with dementia.