3. A Tendency to Trivialize: Why the Legal Limbo?
The already disquieting issue of elder neglect and abuse is further compounded by the advent of new technologies, which, while destined to improve the lives of those most at risk, raise fresh questions specifically pertaining to their basic human rights, particularly the right to privacy and dignity. As indicated, these issues, however pressing, are by en large left unaddressed by the legal community62, as the commercial success and expediency of assistive technologies obstructs debate. It further stands to reason that the virtual vacuum surrounding the constitutionality – and indeed the ethics – of saddling the elderly with certain technological devices – even when they are ostensibly designed to assist them – is itself a product of our collective neglect of elder-rights and of budgetary constraints relating to health care63.
The general questions that need to posed – but are habitually left unheeded – are the following: "On what grounds can we justify overriding and restricting the liberty of a person with dementia? How far should such restrictions go? Who should authorize them and who should carry them out, and under what theory? Given that all behaviour carries some degree of risk, what level of risk is acceptable?"64 Finally, what implications might the mechanical application of assistive technologies have for liability and insurance purposes?
Why then are such questions are left unasked (let alone answered)? Several more specific reasons may be cited: firstly, as noted, the 'threat' to the rights at stake generally stems not from government actors or malicious stalkers but from those who care most for the elderly – family and caregivers who avail themselves of the assistive technology. Accordingly, even though several Constitutional rights may be at issue, the traditional – however outdated65 – conception that human rights abuses are at the hands of state actors, coupled with the very understandable reticence to exacerbate the already weighty burden shouldered by caregivers, all but precludes such analysis, as discussed66 .
Yet another reason underlying the difficulty in addressing elder rights in this context is the following. Concrete interests relating to physical health or safety – particularly as they inhere to older people – are stereotypically perceived to overshadow if not trump all other issues- including "abstract" rights such as dignity and privacy. Thus, it is deemed only natural for the frail to prioritize health at the expense of other intangible interests – including certain basic rights, deemed 'luxuries' that those in poor health can simply not afford.
Yet a third obstacle to the sober deliberation of human rights difficulties stemming from the use of assistive technologies is the underlying philosophy of care. As shall be further discussed, approaches to the use of certain devices in elder care differ from country to country and significantly influence our willingness to accept certain limitations on rights in favour of health considerations67 . Thus, while the British Alzheimer's society has so far significantly refused to implement a monitoring programme, pending some resolution of the ethics dimension, that has, of course, not been the case in North America68. Lastly, definitional qualms respecting how this new assistive technology should be labelled further complicate the issue69. Let us explore these matters sequentially. #p#分页标题#e#
II. From a comparative view, is a "culture of care" responsible for rubberstamping GPS monitoring?"The road to hell is paved with good intentions?"70
1. What rights should be sacrificed "for their own good"? First, the availability of various devices, adapted to the healthcare market, raise most delicate quandaries deriving not from those bearing the elderly ill-will, but from the most well-intentioned caregivers. Thus, violations of basic rights, when they do occur in this context, are most insidious, for they stem not from disregard but from (however ill-placed paternalistic) – concern. What is more, since it is private actors, rather than the almighty State, that are potentially infringing on civil liberties, fewer remedies are available71 and those that are, are of course not invoked72. This is all the more true when the private actors in question are health care professionals or even loving family members.
Accordingly, an adversarial conception of rights predicated on and limited to the individual appears ill-suited to a fruitful exploration of intrusive elder monitoring, when such surveillance is carried out by loved ones. Instead, in this context, the conventional individualistic model may best be replaced by the "Idea of rights in relationship", as advanced by scholars such as Gilligan, Minow, Nedelsky, and Schneider73. Hence, dementia sufferers are not the autonomous74 individuals envisioned by the conventional approach, nor are their interests divorced from or even necessarily competing with those of their caregivers. Rather, they are most often quite dependant on both health professionals and family members, thus rendering the traditional rights paradigm as unsuitable75 as any other enumerated private law remedies, normally available. Perhaps Edward P. Richards best summarizes the quandary asserting: "Alzheimer's disease raises significant legal issues because it challenges our model of a world neatly divided into autonomous citizens and persons legally adjudged incompetent and under the control of duly-appointed legal representatives in secure facilities"76 .
Again, the dependence parallel with children's rights is elucidating. As Campbell points out77: "On an even more basic level, characterizing children's health care as a right creates two dilemmas that can arise whenever a rights-based discourse is employed. First, but this paradigm does not fit the context of children's rights for many of the same reasons that feminists reject the idea for women. The immense physical, emotional, and psychological dependence children have on their families, their communities, and the state, makes placing them within the traditional rubric of individual rights impossible. The notion of rights in relationship – a concept formulated and developed by feminists – thus becomes indispensable to a viable framework of rights for children"78 .
More specifically, the existing legal framework, in place for providing those lacking either competence or capacity (most notably children and the mentally ill or intellectually challenged) with some recourse when their civil liberties are at stake is conventionally the "best interests" test79. While it is beyond the scope of this article to examine this generally problematic standard in any detail80, the particular challenge with that standard when it comes to Alzheimer's patients or those suffering from dementia generally is that anything serving to safeguard the physical integrity of such individuals is traditionally understood as being in their best interests. Thus, while it is agreed that people's interests normally extend beyond the physical or health-related81, and that indeed, intangible interests such as dignity may at times trump even life itself, (as in the case of Nancy B in Quebec or Malette in Ontario for example82), that same logic may rarely be extended to the aged or dementia sufferers, who are thought to reasonably value their precarious health above all else83. #p#分页标题#e#
Such an approach may be consistent with a Utilitarian construction, which would presumably favour the use GPS technology by virtue of its supposed life-saving potential84, thus outweighing limitations on certain rights. It does not, however, comport with the rights-based philosophy that has come to dominate our understanding of health policy. A fundamental principle animating health care ethics is the respect for human dignity. Indeed, the heightened emphasis on patient autonomy and dignity as an overarching consideration permeates the law. The same is true for determining incapacity. Physicians have an obligation to prevent harm as does the state in some countries85. While the precise definition of what exactly constitutes harm remains the subject of great controversy86, the concept clearly exceeds physical injury.
Elders should be no exception. The elderly – including those suffering from Alzheimer related or other dementia – are likewise entitled to the equal protection of interests other than physical health, including but not limited to dignity and privacy87. Therefore, despite the tragic loss of autonomy, most often due to dementia, leading British Alzheimer's medical researcher, the late Tom Kitwood, cautions: personhood and the inalienable rights intrinsic to it are not supplanted by age-related illness and the pragmatic health care considerations that accompany it. As he so eloquently puts it: "[t]he unifying theme is the personhood of men and women who have dementia – an issue that was grossly neglected for many years both in psychiatry and care practice"88.
Thus, for instance, non-medical interests must be thought to survive dementia and age, as a leading researcher, Dodds (1996), emphasizes89: "there is no reason to believe that as people become older and less able to live fully independently they lose all interests beyond the protection of their health".
While for some elders in poor health, medical interests may indeed be primordial, what is important is not to casually assume that this is the case for all simply by reason of their age or condition. Such a "broad brush approach' is, as Bruce Jennings qualifies it "objectionable" and indeed discriminatory90 . Jennings proceeds to remark: "[a]nother aspect of the public health framework that makes it problematic in application to risky behavior by Alzheimer's disease patients is the tendency to view persons categorically rather than situationally. Dealing as it does with large populations, statistical risks, and impersonal factors, public health policy often deals with broad categories, particularly in its surveillance and reporting functions"91. Preferences amongst dementia sufferers will vary – even greatly – in function of several factors including cognitive ability, culture and of course idiosyncratic differences92. These cannot be dismissed and must instead be acknowledged: "…with Alzheimer's disease specifically, the degenerative processes of the disease operate in often very subtle and uneven ways with respect to cognitive and reasoning functions"93. The same author speaks of "degrees of competence"94 that must similarly be accounted for. #p#分页标题#e#
Plainly put, as Bruce Jennings so eloquently does: "Curtailing freedom always calls for legal justification, and an Alzheimer diagnosis is in itself insufficient to furnish it". He further posits: "The primary duty of the conservator vis-à-vis the person with Alzheimer's disease is not so much protection from bodily harm, nor the promotion of best interests, at least as that term is commonly understood. Instead, the goal of conservancy is, simply put, to sustain the person's human flourishing or quality of life as a person"95. Therefore, in applying the 'best interests' test, we must disabuse ourselves of any notion that the elderly (including those suffering from dementia) have lost interest in concerns beyond their physical well-being. It is perhaps worth reiterating that non-physical harms potentially attributable to the use of assistive technology involving GPS monitoring of dementia sufferers include: the stigma and humiliation (in moments of lucidity) that ensue from being tagged and tracked. Indeed, "beyond the stigma96, actually being tagged may reflect on the social value attributed to group"97. The elderly already suffer from low self-esteem in western culture, as evidenced by high rates of suicide amongst that group. Being tagged can presumably only exacerbate this situation98.