The Hamilton Spectator

Dementia beds are smart investment­s

- HEATHER CAMPBELL POPE HEATHER CAMPBELL POPE, LLB, LLM, IS THE FOUNDER OF DEMENTIA JUSTICE CANADA.

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.

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