That having been said, as a second generation right, the right to health care, although cardinal163, has often been more difficultly recognized (as compared to first generation individualistic rights)164. Ironically, legislation ensuring the protection of conventional rights such as privacy and dignity may be more readily achieved than any hope of addressing the underlying problems plaguing the health care system165. We must therefore not rely on the resolution of these underlying problems – however crucial – to address the GPS in dementia care conundrum specifically.

The modest purpose of this present endeavour, as previously stated, is not to offer precise recommendations. Indeed, doing so prior to and in absence of the above mentioned multidisciplinary reflection would be premature. It is instead aimed to draw attention to what has thus far been a "low profile" issue (to say the least)166 and to likewise ensure that any responses that are ultimately offered be informed by rights167 - rather than considerations relating exclusively to health. Discussion and debate, similar to that occurring in the United Kingdom, is imperative if we are to increase awareness and understanding of the issues surrounding decision-making respecting the use of assistive technologies.

In a word, "[t]he personal freedom of individuals, including those with a diagnosis of dementia, should be respected. Curtailing that freedom always requires ethical and legal justification. In general, the only justification for curtailing this freedom is to prevent harm to others or to the individual. Restrictions imposed for the protection of the individual from harm to self should be viewed with special caution to avoid over-inclusive applications of the concept of self-harm"168.

Endnotes
1 Assistant Professor, University of Ottawa, Faculty of Law. Director, Human Rights Research and Education Centre, Ottawa. Faculty, Law and Technology Program.

2 Justice Cray in Union Pacific Railroad v Botsford, 141 U.S. 250 at 251 (1891).

3 UK Alzheimer's Society Webpage
http://www.alzheimers.org.uk/News_and_campaigns/Campaigning/mentalcapacity.htm
(consulted February 3rd 2005).

4 Irwin Cotler, 'Human Rights and the New Anti-Jewishness', 38 Justice 24, 27 (2004).

5 In 1981, the Select Committee on Aging of the United States House of Representatives issued a landmark report entitled 'Elder Abuse: An Examination of a Hidden Problem', dealing with elder mistreatment, particularly in non-institutional settings. A decade later, a second report titled: 'Elder Abuse: A Decade of Shame and Inactivity' was issued, concluding that the situation had deteriorated (over 1.5 million people were abused yearly). On the need for elder justice legislation see John B. Breaux and Orin G. Hatch, 'Confronting Elder Abuse, Neglect and Exploitation: The Need for Elder Justice Legislation', 11 Elder L.J. 207 (2003).

6 See Honor Thy Mother & Father: Symposium On the Legal Aspects of Elder Abuse, Seymour Moskowitz, 'Golden Age in the Golden State: Contemporary Legal Developments in Elder Abuse and Neglect', 36 Loy. L.A. L. Rev. 589 (2003) discussing the elderly as an ignored group in Human Rights. #p#分页标题#e#

7 Michelle Stowell, 'Chapter 434: Protecting those with Alzheimer's Disease and Dementia', 32 McGeorge L. Rev. 733 (2001).

8 On capacity and consent generally see Israel Doron, 'Mental Incapacity, Guardianship, and the Elderly: An Exploratory Study of Ontario's Consent and Capacity Board', 18 No. 1 Can. J.L. & Soc'y 131 (2003). The issue of interesectionlities is worthy of mention although an adequate exploration of this related issue is beyond the scope of this paper. For an exploration of the gender issue in assisted suicide see Lynne Marie Kohm and Britney N. Brigner, 'Women and Assisted Suicide: Exploring the Vulnerability to Acquiescent Death', 4 Cardozo Women's L.J. 241 (1998).

9 See Public Health Agency of Canada, National Advisory Council on Aging (NACA) position paper No. 23 on Alzheimer disease and related dementia at
http://www.phac-aspc.gc.ca/seniors-aines/naca/position/23_alzheimer/alzheimer6_e.htm
(visited Feb 3rd 2005): "No current students pursuing doctoral studies in this area, no grants funded, and little academic emphasis on aging, Alzheimer Disease and ethics". NACA recommends that provincial governments and provincial Alzheimer Societies collaborate with hospital, community and long-term care providers to educate health care providers and develop guidelines/regulations regarding the use of restraints on people with Alzheimer dementia and related dementia (ADRD).

10 See House Select Committee on Aging, 96th Congress., 1ST Session., Elder Abuse: The Hidden Problem (Comm. Print 1980) Elder/Dependent Adult Abuse: Hearings Before the Cal. Assembly Comm. on Aging and Long-Term Care (1985).

11 Welsh, A. et al (2003) 'Big brother is watching you – the ethical implications of electronic surveillance measures in the elderly with dementia and in adults with learning difficulties', Aging & Mental Health, September 2003; 7(5): 372-5: "Electronic surveillance has insidiously seeped into the fabric of society with little public debate about its moral implications".

12 Susan Ashcroft-Simpson, 'Nurses and the Use of Restraints', Education & Ageing Vol 14(1) (1999) at
http://www.triangle.co.uk/eda/14-01/Ashcroft.pdf
p.80 (last visited February 3rd, 2005).

13 Brock DW. Life and death: Philosophical Essays in Biomedical Ethics (New York: Cambridge University Press, 1993:372).

14 See A. Michael Froomkin, 'Symposium: Cyberspace and Privacy: A New Legal Paradigm? The Death of Privacy' 52 Stan. L. Rev. 1461, 1503 (2000).

15 Indeed, personal locators' popularity is on the rapid increase, and these devices are increasingly replacing traditional "Safe return" identification bracelets as the ideal means for tagging and tracking dementia sufferers. See
http://alzheimers.upmc.com/GPS.htm
(last consulted April 11, 2005). Also see Alzheimer's association website: http://www.alz.org and its Canadian counterpart's website:
http://www.alzheimer.ca/english/safelyhome/intro.htm #p#分页标题#e#
(visited February 3rd 2004). The technology is described infra. While GPS is not yet part of the programme (which instead simply involves registering the patient with the society, entering their information in a police database and fitting them with a tracking bracelet) interest in GPS is on the rise (indeed, this option is refered to in the organization's resources list
(http://www.alz.org/resources/resources/rtrlwand.asp#AlzPubSR).
POSTSCRIPT: Since the original drafting of this article, Canada's Alzheimer;s society has posted basic ethical guidelines for the use of new technologies (including GPS) for tagging and tracking patients on its website
(http://www.alzheimer.ca/english/care/ethics-tracking.htm)

16 See Alzheimer's association website: http://www.alz.org (visited February 3rd 2004). The technology is described infra.

17 Id.

18 This is a nationwide programme developed by the Alzheimer Society of Canada in partnership with the Royal Canadian Mounted Police. Once a person is registered, vital information is stored confidentially on a police database. The information can be accessed by police anywhere in Canada and the United States.

19 The information can be accessed by police anywhere in Canada and the United States. See American Alzheimer's Association website (http://www.alz.org).

20 "GPS is based on a network of at least 24 satellites that continuously send out radio signals transmitting their locations. A GPS receiver back on Earth can then triangulate its three-dimensional position using the information received from at least four of the satellites. [The system is accurate anywhere on Earth to within 100 feet. Using a technique called differential GPS, users can obtain accuracies of several feet". See Aaron Renenger, 'Satelite Tracking and the Right to Privacy' 53 Hastings L.J. 549, 550 (2002).

21 Id.

22 See responses to groundbreaking article by British consultant in old age psychiatry Hughes J.C. and physician Louw S.J. (2002) 'Electronic Tagging of People With Dementia Who Wander' British Medical Journal, 325, 847-848: Desmond O'Neil, 'Electronic Tagging in Dementia should be reserved for babies, convicted criminals and animals' BMJ Nov 2003; 326: 281. (14 November 2002); Susan Cahill, 'Enabling Technologies' (16 November 2002) BMJ Nov 2003; 326: 281.

23 Unfortunately, only the absence of literature on point can be cited as support for this assertion.

24 I am of course referring to patients registered by their families – who often protest the procedure - as section "how to convince..." attests to, rather than those who themselves chose to register.

25 Alzheimer's association website (http://www.alz.org).

26 These rights are briefly discussed below. A more in-depth discussion, however, exceeds the parameters of this present Endeavour, whose purpose is exclusively to spark discussion by highlighting the issues.

27 inter alia as shall be discussed i.e. lack of adequate resources; unbearable burden on carers. #p#分页标题#e#

28 See infra.

29 When the opposite should hold true: "where rights conflict with individual or societal interests, rights generally will trump those interests and be respected and enforced by liberal democracies" Angela Campbell, 'Stretching the Limits of "Rights Talk": Securing Health Care Entitlements for Children', 27 Vt. L. Rev. 399 (2003 ) citing Martha Minow, Making all the Difference: Inclusion, Exclusion and American Law 296 (1990) (discussing the concept of rights as "trumps").

30 Difference with UK discussed infra.

31 Were it to involve anyone other than the aged, as evidenced by the heated discussion surrounding its application to convicted criminals or sexual predators infra.

32 A recent groundbreaking editorial by Julian C. Hughes, PhD, MRCPsych, of the Centre for the Health of the Elderly in the UK highlighted. See Hughes, JC and Louw, SJ (2002) 'Electronic tagging of people with dementia who wander' British Medical Journal 325: 847-8.

33 I.e. medical malpractice or torts as discussed briefly referred to below.

34 While it is beyond the scope of this present endeavour to furnish a thorough analysis of the insurance considerations related to routine tagging of the elderly afflicted with dementia,. The issue is certainly one of relevance which must first be raised in order to spark further debate.

35 Language used by the Supreme Court of Canada in developing its "proportionality test" in R. v Oakes [1986] 1 S.C.R. 103, 26 DLR (4th) 200 (1986).

36 David A. Schumann, 'Tracking Evidence with GPS Technology', 77-MAY Wis. Law. 9 (2004). See also David Cole, 'Electronic Monitoring in Canada: Has the Time Come to take some Fundamental Decisions?' 6 Can. Crim. L. Rev. 301 (2001) in the Canadian context.

37 Patricia A. Powers, 'Making a Spectacle of Panopticism: A Theoretical Evaluation of Sex Offender Registration and Notification' 38 New Eng. L. Rev. 1049 (2004).

38 Some justified others thoroughly paternalistic. See Welsh et al supra.

39 As shall be discussed, certain recourses are obstructed by law (i.e. absence of state action or government involvement), interpretation of the 'best interests' standard infra and others simply by circumstance (i.e. unwillingness - unwillingness or inability to pursue one's well-intentioned (often overwhelmed) caregivers.

40 So far, only cooperation detected has been a suspect one- that between the caregiver community and law enforcement characterizing self return supra.

41 Otherwise known as "Safe Return".

42 The author lacks the expertise to reach such a conclusion.

43 Term coined by Irwin Cotler, Address at Osgoode Hall Law School, Toronto Ontario, Canada, Raoul Wallenberg Day International Human Rights Symposium, January 17th, 2005.

44 Not a jurist Mr. Jennings teaches at the Yale University School of Medicine in the Department of Epidemiology and Public health, specializing in bioethics.(See #p#分页标题#e#
http://www.thehastingscenter.org/people/profiles/jennings.asp
last consulted February 20th, 2005).

45 Bruce Jennings, 'Symposium Articles Joint Conference on Legal/Ethical Issues in the Progression of Dementia Freedom Fading: On Dementia, Best Interests and Public Safety', 35 Ga. L. Rev. 593 (2001).

46 Medical technology now makes it possible to prolong the dying process of severely debilitated elderly patients. The majority of the aged die in hospitals or long-term care institutions, and many are sustained by artificial life-support systems throughout their final days or years of life. See Tracy L. Merritt, 'Equality for the Elderly Incompetent: A Proposal for A Dignified Death', 39 Stan. L. Rev. 689 (1987).

47 Canadian Press, 'Health Advocates Call for Alzheimer's Strategy' (CTV Report Oct 23, 2004). See
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1098554337074_21
(last visited February 20th, 2005).

48 North American- as both the United States and Canada's respective Alzheimer's associations (in contrast to Britain's) have promoted tagging and tracking as a means for "safely returning" wandering dementia patients to their homes and alleviating the burden on caregivers- be it directly through conventional non-GPS programmes or indirectly by referring to private GPS resources.

49 See "last word" discussion, offering a brief overview of the potential financial considerations arising from routine electronic monitoring of dementia patients, including higher malpractice insurance premiums and risks of liability for those caregivers who refuse to avail themselves of such devices, particularly if this refusal is deemed unreasonable in light of general practices.

50 See Ronald Dworkin's discussion of advance directives in 'Lecture in Jurisprudence and Public Policy: Justice in the Distribution of Healthcare', 38 McGill L.J. 883 (1993) (He cites Descartes referring to healthcare as the first right (at 885).

51 David A. Schumann, 'Tracking Evidence with GPS Technology', 77-MAY Wis. Law. 9 (2004) for a thorough explanation of GPS functioning.

52 See, e.g. State v Jackson 150 Wash. 2d 251, 259-60, 76 P.3d 217, 222 (2003) [a state case] holding that police installation of Global Positioning System (GPS Tracking Device) device on murder suspect's vehicle infringes upon Washington state constitutional right to privacy and therefore requires a search warrant); A thorough discussion (that exceeds the scope of this article) may be found in David A. Schumann, 'Tracking Evidence with GPS Technology', 77-MAY Wis. Law. 9 (2004).

53 Whether that includes employees – through the use of employer property is not definitely settled. Id.

54 See note 58 supra.

55 Id. E.g.: "stalking statutes"- 2003 Assembly Bill 738 (introduced Jan. 7, 2004 and signed into law by Gov. Doyle on April 12, 2004) changes Wis. Stat. section 940.32 to include monitoring a victim by electronic means as part of a stalking "course of conduct" that an actor "knows or should have known" would cause the victim fear of bodily injury or serious emotional distress. #p#分页标题#e#

56 See discussion of US Model Anti-Stalking Code; See on stalking Laurence M. Friedman, 'The One Way Mirror: Law Privacy and the Media', 82 Wash. U. L.Q. 319 (2004); Nga B. Tran, 'A Comparative Look at Anti-Stalking Legislation in the United States and Japan', 26 Hastings Int'l & Comp. L. Rev. 445; Model Anti-Stalking Code, Nat'l Inst. Of Justice, U.S. Dep't of Justice, Project To Develop a Model Anti-Stalking Code for States 12 (1993) See B. Benjamin Haas, Comment, 'The Formation and Viability of Anti-Stalking Laws', 39 Vill. L. Rev. 1387 & n.2 (1994). In Canada, there is a requirement for "reasonable fear" s. 264 Criminal Code R.S.C. 1985, c. C-46, s. 264 (known as the offence of "criminal harassment").

57 The US Model Penal Code (1962) defines stalking as: (Section 2). "Any person who:
purposefully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or herself or a member of his or her immediate family or to fear the death of himself or herself or a member of his or her immediate family; and
has knowledge or should have knowledge that the specific person will be placed in reasonable fear of bodily injury to himself or herself or a member of his or her immediate family or will be placed in reasonable fear of death of himself or herself or a member of his or her immediate family; and
whose acts induce fear in the specific person of bodily injury to himself or herself or a member of his or her immediate family or induce fear in the specific person of the death of himself or herself or a member of his or her immediate family; is guilty of stalking".

Florida law defines a stalker as any person who "willfully, maliciously, and repeatedly follows or harasses another person. Fla. Stats. Ann. §784.048(2) (West 2000).

In Canada, Section 264 of the Criminal Code supra. provides:
264.(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.
(3) Every person who contravenes this section is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction. #p#分页标题#e#

58 Id.

59 Waseem Karim, 'The Privacy Implications of Personal Locators: Why You Should Think Twice Before Voluntarily Availing Yourself to GPS Monitoring', 14 Wash. U. J.L. & Pol'y 485, 511 (2004) 'You get What You Pay for and so does the Government... How law Enforcement Can use Personal Locators to Track your Every Move', 6 N.C. J. L. & Tech. 165 (2004).

60 The tort of invasion of privacy for instance (unclear in the Canadian Common Law provinces), Quebec Charter.

61 See Recommendations of the Joint Conference supra. 35 Ga. L. Rev. 423 (2001).

62 Inter alia, as the Alzheimer's society recently lamented, supra.

63 As noted above, ties into general issue of health care rights, which exceeds to specific parameters of this present discussion.

64 Bruce Jennings, 'Freedom Fading: On Dementia, Best Interests and Public Safety', 35 Ga. L. Rev. 423 (2001).

65 "Although not officially subject to the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.). 1982, c. 11), even matters of "private" ilk must be decided respecting the spirit of the Charter. See Justice Dickson (as he then was) in Hunter v Southam Inc, [1984] 2 SCR 145, 11 D.L.R. (4th) 641, holding that Section 8 seeks to supply "a broader protection of the individual's right to privacy than could be found in traditional Common Law doctrines".

66 As noted the criminal law would of course be inappropriate, thus leaving us in a legal vacuum.

67 Compare the situation in the U.S. with that in Britain, as discussed infra.

68 "Safely home" (http://www.alzheimers.ca) and "Safe return" (http://www.alz.org) respectively.

69 See brief discussion of whether tagging and tracking constitutes "restraints" infra.

70 This proverbial idiom probably derives from a similar statement by St. Bernard of Clairvaux about 1150, L'enfer est plein de bonnes volontés ou désirs ("Hell is full of good intentions or wishes").

71 In Canada, under the various provincial Human Rights Charters, a third party or interest group may have standing whereas a private action (under either provincial human rights documents or tort law is unlikely to be brought by the elder with dementia, or her representative, who is generally the one either requesting that the elder be tracked or consenting to her surveillance.

72 Id.

73 Cited by Angela Campbell, 'Stretching the Limits of "Rights Talk": Securing Health Care Entitlements for Children', 27 Vt. L. Rev. 399 (2003 ) at fn 135: "Rather than portraying rights-bearers as autonomous individuals with competing interests, they constructed a framework that reflects our needs and capacities and entwines these factors through a network of social relations (citing Carol Gillian, 'In a Different Voice: Psychological Theory and Women's Development' 19, 147 (1982); Martha Minow, supra. and Jennifer Nedelsky, 'Reconceiving Rights as Relationship', 1 Rev. Const. Stud. 1-2 (1993), at 11-13 (asserting that the notion of individual is flawed, since humanity is comprised of a network of relationships, and individuals are shaped and influenced in their choices by those relationships); and Schneider, Elizabeth M. Schneider, 'The Dialectic of Rights and Politics: Perspectives from the Women's Movement', 61 N.Y.U. L. Rev. 589, 597-98 (1986) (arguing that feminist rights critique, which is based on patriarchy, fails to consider the "relationship between the assertion of rights and political struggle in social movement practice"), at 619-25 (discussing how feminist thought evolved to center around the notion of "interdependent" rights). #p#分页标题#e#

74 Id. in context of children (as there are many important parallels between children and the aged in terms of vulnerability, dependence and the use of similar legal standards): As Campbell correctly observes (Ibid at 400) "the traditional understanding of rights presumes an autonomous rights-holder, who is able to independently recognize and exercise her legal claims".

75 Id.

76 35 Ga. L. Rev. 621, 622 (2001).

77 Angela Camplbell, 'Stretching the Limits of "Rights Talk": Securing Health Care Entitlements for Children', 27 /Vt. L. Rev./ 399 399, 400, 400 (2003).

78 For more specific parallels on point with (older) children, see also Devanshi P. Patel, 'Should Teenagers Get Lojacked Against their Will? Fascinating parallels' 47 How. L.J. 429 (2004); For an actual discussion of the parallels between elder's and children's rights see Nina A. Kohn, 'Second Childhood: What Child Protection Systems can Teach Elder Protection Systems', 14 Stan. L. & Pol'y Rev. 175 (2003): "Looking to systems designed to address child maltreatment to reduce elder mistreatment is not new. Health care workers and policy makers have long considered elder mistreatment to be analogous to child maltreatment. When arguing that more attention should be paid to elder abuse, both groups have cited America's approach to child maltreatment as superior. This has had a significant effect on elder care policies. For example, elder protective services are frequently patterned on child protective services".

79 See that Israel Doron's discussion supra.

80 Much ink has been spilled respecting the difficulties associated with the "best interests" standard, particularly in the family law context (though lacks profound exam in its application to elders...). See, for instance, Shauna Van Praagh, 'Faith Belonging and the Protection of "Our" Children', 17 Windsor Y.B. Access to Just. 154 (1999); S. Van Praagh, 'Religion, Custody and a Child's Identities' 35 Osgoode Hall L.J. 309 (1997); C. Bernard, R. Ward & B. Knoppers, 'Best Interests of the Child' Exposed: A Portrait of Quebec Custody and Protection Law', 11 Can. J. Fam. L. 57 (1992).

81 See the Supreme Court of Canada's decision in Janzen v Janzen (2002), 44 E.T.R. (2d) 217 (Ont. S.C.J.), in which the "the concept of "well-being" [is considered to be] a very broad concept which Encompasses many considerations, including quality of life".

82 Nancy B. v L'Hôtel-Dieu de Québec (1992), 86 R.J.Q (4ème)385 (Qué.SC); Malette v Shulman (1990), 72 O.R. (2d) 417, 67 D.L.R. (4th) 321 (C.A.) Human dignity has therefore been held to outweigh even life saving treatments (such as blood transfusions), as illustrated by the above case (involving a Jehovah's Witness' refusal to be transfused and in Astaforoff (British Columbia (A.G.) v Astaforoff (1983), [1984] 6 W.W.R. 385, 6 C.C.C. (3d) 498 (B.C.C.A.). In these cases, the Court rejected a "life at any cost" approach to health policy. See Bernard M. Dickens, 'Case Comment: Medically Assisted Death Nancy B. v. Hotel-Dieu Hospital', 38 McGill L.J. 1053 (1993). In the U.K, see Airedale NHS Trust v Bland, [1993] 1 All ER (HL) 821, the landmark case in which the court allowed the removal of a feeding tube from a patient in a permanent vegetative state. In the Schiavo case in the U.S., a Florida Court ordered a feeding tube removed from a woman in a vegetative state and then struck down legislation ordering the tube reinserted. See Press Release, Voice of America, U.S. State Court Strikes Down Law Keeping Brain-Dead Woman Alive (Sept. 24, 2004), available at 2004 WL 92188293. For more information about Terri Schiavo generally, see Terri Schindler-Schiavo Foundation, at http://www.terrisfight.org (last updated Oct. 5, 2004). #p#分页标题#e#

83 As noted above, some interesting parallels with children's rights are worthy of further exploration. Thus, for instance dementia and old age has been referred to as a "second childhood". See Barney Sneiderman, Book Review Sheila A.M. McLean, 'Contemporary Issues in Law and Medecine', 26 Queen's L.J. 603 (2001). Also see Jane Spencer, Tracking the Kids by Satellite, Wall St. J., Feb. 18, 2003, at D1.

84 Not to mention its capacity to alleviate caregivers' worry.

85 I.e. in Germany. See Judgment of the Bundesverfassungsgericht (Federal Constitutional Court), 28.5. 1993, BVerfGE 88, 203, upholding the criminalization of abortion on the basis of the State's constitutional duty to protect life.

86 Particularly with respect to assisted suicide.

87 The Canadian Charter of Rights and Freedoms relevant sections 15 (equality, which subsumes dignity), 7 (security of the person), 8 (privacy); these rights are similarly found in provincial human rights code. While not directly applicable, several provisions of the U.S. the Fourth and Fourteenth Amendment's respective due process equal protection, in addition to privacy - gleaned from the First Amendment through the "penumbra" concept (see Griswold v Connecticut, 381 U.S. 479, 484 (1965)) - may be relevant.

88 Tom Kitwood, Dementia reconsidered: The Person Comes First (Open University Press: Buckingham, 1997), revisits the psychological needs of people with dementia i.e. love, dignity, which are not simply physical.

89 S. Dodds, 'Exercising restraint: autonomy, welfare and elderly patients', 22 J Med Ethics 160-163 (1996).

90 With respect to driving, Edward P. Richards notes: "it would be difficult to justify blanket rules that prohibit all persons diagnosed with Alzheimer's disease from driving because such rules would improperly limit the lives of a large number of persons who do not yet pose any threat to others". 35 Ga. L. Rev. 621, 625 (2001).

91 See Jennings id.

92 Ram N Valle, 'Ethics, Ethnicity and Dementia: A "Culture Fair" Approach to Bioethical Advocacy in Dementing Illness', 35 Ga. L. Rev. 465 (2001) (citing Post et al Linda Farber Post et al., Pain: Ethics, Culture, and Informed Consent to Relief, 24 J. L. Med. & Ethics 348, 355 (1996).

93 Ram N Valle, 'Ethics, Ethnicity and Dementia: A "Culture Fair" Approach to Bioethical Advocacy in Dementing Illness', 35 Ga. L. Rev. 465 (2001).

94 Citing (Moss & LaPuma 1991, in Ashcroft-Simpson supra. The degree to which the psychiatric patient's bodily integrity is protected by the right to refuse treatment turns on whether the patient is found to have the capacity to make such a decision. Most jurisdictions prefer what is known as a "Functional" approach to capacity. Thus, for instance, in Quebec law, "the determination of capacity to consent to treatment is a question of fact and is based on the patient's ability to make the decision at hand-Delisle J.A, "Il peut fort bien arriver qu'une personne soit incapable d' administrer ses biens, tout en étant parfaitement consciente de ses besoins de santé." (It can very well be the case that a person who is incapable of administering their property would otherwise be fully aware of their health needs" [1994] R.J.Q. 2523 at 2529 (C.A.). #p#分页标题#e#

95 Bruce Jennings, 'A Life Greater Than the Sum of Its Sensations: Ethics, Dementia, and the Quality of Life', in Assessing Quality of Life in Alzheimer's Disease 165 (Steven M. Albert & Rebecca G. Logsdon eds., 2000).

96 Ageism & stigmatization (Proctor 2001).

97 See Ashcrtoft-Simpson supra regarding stigma at
http://www.triangle.co.uk/eda/14-01/Ashcroft.pdf p. 80.

98 http://www.mentalhealth.org/suicideprevention/elderly.asp
he highest suicide rates of any age group. occur among persons aged 65 years and older. See also
http://www.ioaging.org/programs/cesp/sfacts.html.

99 Often frozen to death or dehydrated.

100 U.K. Alzheimer's Society position paper at
http://www.alzheimers.org.uk/News_and_Campaigns/Policy_Watch/electronictagging.htm
(February 15th, 2005).

101 BMJ 2002;325:847-848 ( 19 October 2003).

102 John Hughes citing McShane R, Gelding K, Kenward B, Kenward R, Hope T, Jacoby R. The feasibility of electronic tracking devices in dementia: a telephone survey and case series. Int J. Geriatric Psychiatry 1998; 13: 556-563.

103 See discussion on identity of interests regarding liability supra.

104 As noted by the UK position paper, discussed infra: a balance needs to be struck between the benefits to the individual concerned and the infringement of a person's civil liberties.

105 See Dennis E. Cichon, 'The Right to "Just Say No": A History and Analysis of the Right to Refuse Antipsychotic Drugs,' 53 L.A. L. Rev. 283 n.4 (1992). That's why input of other professions is so essential.

106 Penney Lewis, 'Procedures that are Against the Medical Interests of Incompetent Adults', 22 Oxford J. Legal Stud. 575 (2002) Health professional in a better position to assess these.

107 R. Dresser, 'Missing Persons: Legal Perceptions of Incompetent Patients', 46 Rutgers L. Rev. 609, 635 (1994).

108 "They cite increased opportunity for abuse through, for example, the withdrawal of staff and financial resources from the care of people with complex needs. Implementing these technologies, therefore, has ethical implications for human rights and civil liberties" Welsh, A et al (2003) 'Big brother is watching you – the ethical implications of electronic surveillance measures in the elderly with dementia and in adults with learning difficulties'. Aging and Mental Health 7(5): 372-5.

109 Blackburn P., 'Freedom to Wander', Nursing Times 1988; 84: 54-55.

110 The feasibility of electronic tracking devices in dementia: a telephone survey and case series. McShane R, Gedling K, Kenward B, Kenward R, Hope T, Jacoby RInt J Geriatr Psychiatry 1998 Aug;13(8):556-63.

111 See "A Final word" for additional discussion. Although it exceeds the parameters of this paper to go into the details of a caregiver's potential liability arising from harm caused by an Alzheimer's patient, an interesting discussion on one aspect can be found by Edward P. Richards in 'Public Policy Implications of Liability Regimes for Injuries Caused by Persons with Alzheimer's Disease', 35 Ga. L. Rev. 621 (2001). #p#分页标题#e#

112 See Nicholas P, Terry, 'An EHealth Diptych: The Impact of Privacy Regulation on Medical Error and Malpractice Litigation', 27 Am. J.L. & Med. 361 (2001).

113 I. Berlin 'Equality as an Ideal' in F.A. Olafson (ed.) Justice and Social Policy (Englewood Cliffs, N.J.: Prentice-Hall 1961) 137 cited in David M. Beatty, 'The Canadian Concept of Equality', 46 U. Toronto L.J. 349 (1996).

114 Susan Ashcroft Simpson, 'Nurses & the use of restraints', Education & Ageing vol 14(1) 1999 H,T. Brower 1992 p. 50 (Journal of Elder Abuse & Neglect 4(4)).

115 "Post et al. term a cultural lens to bioethical decision-making processes in dementing illness." Linda Farber Post et al., 'Pain: Ethics, Culture, and Informed Consent to Relief', 24 J. L. Med. & Ethics 348, 355 (1996).

116 Ram N. N Valle 'Ethics, Ethnicity and Dementia: A "Culture Fair" Approach to Bioethical Advocacy in Dementing Illness', 35 Ga. L. Rev. 465 (2001) (citing Post et al Linda Farber Post et al., Pain: Ethics, Culture, and Informed Consent to Relief, 24 J. L. Med. & Ethics 348, 355 (1996).

117 Instead, it is imperative to examine a particular patient's ability to contribute to the decision making regarding health-related decision (irrespective of their legal incompetence to manage their own affairs).

118 Of course this is more along a spectrum than any didactic dichotomy.

119 Although Canada would consider itself more akin to UK model in principle, in practice it has gone the way of US, implementing GPS monitoring for Alzheimer's patients (see http://www.Alzheimers.ca/).

120 See respective websites advocating such a programme i.e. http://www.alz.ca FAQ 5. What if the person takes off the bracelet and won't wear it?: "One strategy you might try is to present the bracelet as a gift. This may help the person accept it more easily. You'll also find three identification cards in the back sleeve of the Caregiver Handbook that you'll receive. Be sure to fill these out and put one in the person's purse or wallet".

121 http://www.alzheimers.org.uk/News_and_Campaigns/Policy_Watch/electronictagging.htm

122 http://www.triangle.co.uk/eda/14-01/Ashcroft.pdf p80.

123 See UK Alzheimer's society position paper:
http://www.alzheimers.org.uk/News_and_Campaigns/Policy_Watch/electronictagging.htm
(consulted February 14th 2005).

124 "Electronic tagging has the potential to ease the concern and worry that carers may have about the person they care for… The Society is keen to point out that what is perceived to be 'wandering' is often not a problem for the person with dementia" Position paper:
http://www.alzheimers.org.uk/News_and_Campaigns/Policy_Watch/electronictagging.htm
(consulted February 14th 2005).

125 i.e. "life-saving technology".

126 Welsh, A et al (2003) 'Big brother is watching you – the ethical implications of electronic surveillance measures in the elderly with dementia and in adults with learning difficulties'. Aging and Mental Health 7(5): 372-5. Hughes, J.C. and Louw, S.J. supra (2002) 'Electronic tagging of people with dementia who wander'. British Medical Journal 325: 847-8; Bewley, C (1998) Tagging: a technology for care services? Values into Action, London. #p#分页标题#e#

127 Bruce Jennings, supra.

128 As evidenced by our acceptance and indeed promotion of the safely home.

129 See William G. Staples, The Culture of Surveillance: Discipline and Social Control in the United States 28 (1997).

130 Id.

131 Jennings supra.

132 Poirier supra.

133 For a discussion of cost and insurance considerations in the American context see Mark A. Rothstein, 'Predictive Genetic Testing for Alzheimer's Disease in Long Term Care Insurance', 35 Ga. L. Rev. 707 (2001); Christine R. Kovach, 'Alzheimer's Disease: Long-Term Care Issues', 12 Issues L. & Med. 47 (1996).

134 Cynthia Kuhn PhD and Wilkie Wison PhD, 'Tagging' Alzheimer's Patients: Electronic Devices Deter Wandering Off, but at What Cost?' WEB MD
http://aolsvc.health.webmd.aol.com/content/Article/52/50224.htm
(last visited February 20th 2005).

135 Particularly with respect to for-profit managed care.

136 Susan Cahill Susan Cahill, 'Enabling Technologies' (16 November 2002) BMJ Nov 2003; 326: 281.

137 Peter V. Rabins 'Joint Conference on Legal/Ethical Issues in the Progression of Dementia: Dementia and Alzheimer's Disease- An Overview', 35 Ga. L. Rev. 451(2001).

138 Agnieszka Jaworska, 'Respecting the Margins of Agency: Alzheimer's Patients and the Capacity to Value', 28 Phil. & Pub. Aff. 105 (1999). For a discussion of Alzheimer's, see generally Tom Kitwood, Dementia Reconsidered (1997); Tom Kitwood, Towards a Theory of Dementia Care: The Interpersonal Process, 13 Ageing & Soc'y 51 (1993); Tom Kitwood & Kathleen Bredin, Towards a Theory of Dementia Care: Personhood and Well-being, 12 Ageing & Soc'y 269 (1992); Steven R. Sabat & Rom Harre, The Construction and Deconstruction of Self in Alzheimer's Disease, 12 Ageing & Soc'y 443 (1992).

139 "It is grounded on an ethic of care and on a hermeneutic understanding of the dynamics of self-identity and self-transformation in dementia and of the dynamics of the caregiving relationship in dementia".

140 Echoed in A U.K. "Patients' Charter", first introduced in 1992, now replaced by a NHS "Guide",-
http:// www.doh.gov.uk/newsdesk/ archive/jan2001/4-naa-26012001.html,
with the aim of improving the quality of health service delivery. The Charter published standards of service that people should expect.

141 Steven R. Sabat, Voices of Alzheimer's Disease Sufferers: A Call for Treatment Based on Personhood, 9 J. Clinical Ethics 46 (1998).

142 Id.

143 As indicated above.

144 Margaret A. Somerville, 'Preface: Dealth Talk in Canada: The Rodriguez Case', 39 McGill L.J. 602 (1994).

145 "[A]s diagnostic tests are developed that allow Alzheimer's disease to be diagnosed long before it affects behavior" see Edward P. Richards 35 Ga. L. Rev. 621, 624 supra.

146 The wishes of the patient are to be considered by the substitute decision-maker at two stages under the Act: 1) in acting in accordance with a prior capable wish applicable to the circumstances pursuant to section 21(1)1; and 2) In determining the incapable person's best interests pursuant to section 21(2) where there is no capable wish applicable to the circumstances. #p#分页标题#e#

147 R. Dresser refers to this as a "quick fix" (see R. Dresser, 'Missing Persons: Legal Perceptions of Incompetent Patients', 46 Rutgers L. Rev. 609, 635 (1994); See also Allen E. Buchanan and Dan W. Brock, Deciding for Others: The Ethics of Surrogate Decision Making (Cambridge: Cambridge University Press, 1989), 422 PP.

148 Ronald Dworkin, 'Autonomy and the Demented Self', 64 Milbank Q. 4, 10 (Supp. 2 1986).

149 Ronald Dworkin, 'Autonomy and the Demented Self', 64 Milbank Q. 4, 10 (Supp. 2 1986).

150 For a more detailed discussion of living wills and pre-commitment (or advance directives), see Leslie Pickering Francis, 'Decision Making at the End of Life: Patients with Alzheimer's or Other Dementias', 35 Ga. L. Rev. 539 (2001); For a critique see Rebecca Dresser, 'Precommittment: A Misguided Strategy for Securing Death with Dignity', 81 Tex. L. Rev. 1823 (2003).

151 Although not foolproof.

152 Nancy Neveloff Dubler, 'Creating and Supporting the Proxy Decision-Maker: The Lawyer Proxy Relationship', 35 Ga. L. Rev. 517, 535 (2001): "I would suggest that there is a powerful lesson here for attorneys counseling patients who face the prospect of increasing dementia. The first lesson is that, if the patient has a trusted and loved person who can be appointed as a health care proxy agent that is the much preferred sort of advance directive for the patient to execute. Especially in dementia, where cognitive decline can proceed far more quickly than physical deterioration, the existence of a proxy to weigh possible interventions against past wishes and present situation is critical".

153 Penney Lewis, 'Procedures that are Against the Medical Interests of Incompetent Adults', 22 Oxford J. Legal Stud. 575 (2002).

154 Of care institutions and health care professionals, as discussed supra. An in-depth analysis of these issues is beyond the scope of this article.

155 Given the convenience this technology allots family members and caregivers generally, as discussed . supra

156 As discussed supra.

157 Call was for the UK.

158 Patrik S. Florencio, 'Genetics, Parenting, and Children’s Rights in the Twenty-First Century', 45 /McGill L J /527, at 557 (2000); this assertation is made in the context of genetic testing.

159 Paul M. Schwartz, 'Property, Privacy and Personal Data', 117 Harv. L. Rev. 2055 (2004). See also Radin cited by Schwartz who objects to any "waiver of all personal privacy rights" and calls on policymakers to exclude such a decision "on autonomy grounds". Margaret Jane Radin, 'Humans, Computers, and Binding Commitment', 75 Ind. L.J. 1125, 1159, 1161 (2000).

160 Id.

161 BMJ, February 1, 2003; 326(7383): 281.

162 On the right to health care in Canada generally see Douglas E. Angus, 'Some Thoughts on Rights and Responsibilities in Healthcare', 11 Nat. J. Const. L. 261 (1999-2000); Sharon Sholzberg-Gray, 'Accessible Healthcare as a Human Right' 11 Nat'l J. Const. L. 273 (1999-2000) and Colleen M. Flood, Tracey Epps, 'Waiting for Health Care: What Role for a Patients' Bill of Rights?' 49 McGill L.J. 515 (2004). #p#分页标题#e#

163 See R. Dworkin citing Descartes supra.

164 Exceeds parameters of this discussion see Louis Henkin, Gerald Neuman, Diane F. Orentlicher and David Leebron, Human Rights (New York: Foundation Press, 1999) for more detailed analysis on point. "An additional difficulty with basing legal claims on rights is that rights impose a correlated obligation on other individuals, institutions, or the state. Even if a right is recognized, it has little value unless it can be enforced".

165 For discussion of accessible healthcare as a Charter right and the erosion thereof see Marco Laverdière, 'Le cadre juridique canadien et québécois relatif au développement parallèle de services privés de santé et l'article 7 de la Charte canadienne des droits et libertés', 29 R.D.U.S. 117 (1998-1999).

166 'Joint Conference on Legal/Ethical Issues in the Progression of Dementia: Foreword', 35 Ga. L. Rev. 391(2001).

167 inter alia. See Professor Ball: "One of the interesting aspects of the tagging trend is the relative nonchalance with which it treats the question of the offender's body. This most personal of possessions is treated as if it were fairly insignificant property of which the authorities can make pragmatic use under the circumstances. As for the tagged offender, he or she is expected to feel no significant sense of intrusion with respect to the tagging of this most personal property, without which all other property would be not only useless but meaningless.45 R.A. Ball, 'Legal Issues in Electronic Tagging of Offenders in the Home: Examples from the United States' (1989) 4 Yearbook of Law Computers and Technology 143 at 155-6.

168 Joint Conference on Legal/Ethical Issues in the 'Progression of Dementia: Recommendations', 35 Ga. L. Rev. 423, 427 ff. (2001).