Parens Patriae 2.0: Invoking the Superior Courts' Protective Jurisdiction to Help Lonely Older Men Age-in-Place
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Loneliness is associated with paradoxically self defeating behaviour, in which social contact is simultaneously desired and rejected. This behaviour can manifest in various ways. Lonely people may, for example, unwittingly decline objectively needed services such as home care. For several reasons, lonely older men may be particularly prone to rejecting offers of support. While refusals are often seen as a win for the right to live at risk, the victory can be hollow when it does not translate into a better quality of life. Often an older man can be persuaded to accept services, but sometimes these efforts fail. In such situations, our traditional understanding of the law leaves concerned third parties with two undesirable options: take no further action or categorise the person as incapable to override his decision making rights. This dilemma is a sad consequence of overcorrecting the medically-dominated approach to elder care with a highly libertarian perspective that lets individuals needlessly suffer. In our pursuit of unfettered individualism, the law has given insufficient weight to internal constraints such as loneliness which affect one’s exercise of free choice, yet keep them below the incapacity threshold. Therefore, in this thesis, I propose an intervention approach to loneliness that is not paralysed by the legal fiction of capacity: invoking a superior court’s protective jurisdiction. Through a therapeutic jurisprudence lens, I draw on the evolution of the parens patriae jurisdiction in Canada and a recent line of English case law to argue that a superior court’s protective jurisdiction may be used to help lonely older men age-in-place. I then propose a framework for invoking the jurisdiction. Specifically, I outline the general circumstances in which a court may be justified in exercising the jurisdiction, and I suggest that dignity ought to serve as the guiding principle. Then using B.C.’s laws as a point of reference, I identify the legislative gap which exists in adult guardianship/protection and mental health laws. Next I propose that the jurisdiction ought to be exercised in the most effective, less intrusive manner. I conclude with a discussion of some practical challenges of using the jurisdiction.
DegreeMaster of Laws (LL.M.)
CommitteeCarter, Mark; von Tigerstrom, Barbara; Goodridge, Donna; Plaxton, Michael
Copyright DateOctober 2016