. Principles Adopted by the LCO
Based on the LCO’s research, and on the comments that were received during the consultation, the LCO has adopted the following principles as the basis for its approach to the law as it affects older adults:
1. Independence: This applies in all spheres of life, including rights to meaningful opportunities to work, to age in place, to access education and training, and to make choices and do as much for oneself as possible. Given entrenched paternalism and stereotypes, the presumption of ability is essential to the independence of older persons. This principle also includes measures to enhance capacity for independence, including ensuring access to information, provision of programs and policies that support independence, and the provision of adequate supports for those who provide care for older persons.
2. Participation: This includes the opportunity to be actively engaged in and integrated in one’s community, and to have a meaningful role in affairs. Participation is enabled through inclusive design of laws, programs, policies and services. An important aspect of participation is the right of older adults to be meaningfully consulted on issues that affect them, whether at the individual or the group level.
3. Security: Some frameworks refer to this principle as one of “care”. This principle includes the right to physical, financial, and social security, such as the right to be free from abuse or exploitation. It also includes the right to basic supports in terms of health, legal and social services.
4. Dignity: At its most basic level, this principle involves the right to be valued, respected and considered, to have both one’s contributions and one’s needs recognized, and to be treated as an individual. It includes a right to be treated equally and without discrimination, and a right to privacy. It includes the recognition that all members of the human family are full persons, unique and irreplaceable, that all have inherent and equal worth, and capacity for growth and expression.
5. Respect for Diversity: Older adults are not a homogenous group, and their needs and circumstances may be affected by a wide range of factors. The LCO’s analysis of the law as it affects older adults will respect the diversity of older adults, and take into account the impact of this diversity on their relationship with the law. The LCO’s approach to, and understanding of diversity is further outlined below.
These principles must be read in the context of Canada’s human rights framework, including both the Charter of Rights and Freedoms and the Ontario Human Rights Code, and with a focus on substantive, rather than formal, equality.
These principles are supported by, and in part derive from, existing international and domestic policy frameworks regarding older adults. These documents provide a starting point in developing a set of guiding principles for a coherent approach to this area of the law. While they vary in lexicon, emphasis and nuance, there is general agreement between these documents on some foundational principles for a policy approach to older persons.
On the international front, the most notable frameworks relating to older adults are the United Nations 1991 Principles for Older Persons and the World Health Organization’s 2002 Active Ageing: A Policy Framework. Recently, the United Nations has adopted the Convention on the Rights of Persons with Disabilities, which is relevant to the situation of older persons in several respects. While Canada has not yet ratified this Convention, it is expected to do so. There are also a multitude of regional, issue-specific, or planning documents that identify relevant principles and perspectives.
Domestically, Canada produced a National Framework on Aging in 1999 for the International Year of Older Persons. Also of importance are the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code and the Ontario Human Rights Commission’s Policy on Discrimination Against Older Persons Because of Age.
The principles adopted by the LCO were generally affirmed by organizations making submissions to the LCO’s consultation. The Ontario Human Rights Commission stated:
Law reform needs to incorporate a clear affirmation of the notions of dignity, independence, participation, fairness and security as guiding principles central to any consideration of the issues related to older persons. These principles mirror the words of the Preamble to the Ontario Human Rights Code and reflect the intent of its human rights protections.
The British Columbia Law Institute indicated that:
The five NFA principles and the values reflected in the WHO framework provide a good basis for promoting the status and well-being of the older population. They would also be useful as standards for assessing the terms of new and existing laws and policies to avoid disproportionate adverse impacts on older persons and the unintended creation of barriers to their full participation as members of society.
B. Implementation of Principles
While there may be general agreement on some broad principles, this does not simplify the difficulties of implementing them in law and policy. How can, for example, the principle of independence be advanced in institutional settings – noting that some commentators believe that institutional settings are antithetical to the principles of dignity, independence and participation? What type of approaches will ensure access to the law? How can the decision-making capacities of persons with significant cognitive disabilities best be supported? If the LCO adopts a definition of the principle of security that includes a right to basic supports, what supports are included and in what circumstances, and how can this be implemented? The challenges are numerous.
The principles identified above are clearly interdependent. Dignity and independence, for example, cannot be achieved without security. Security is based on respect for the inherent worth and dignity of older persons. However, it is important to identify and carefully consider the potential conflicts among these principles. There are, for example, tensions throughout elder law between the principles of independence and security, or as some have phrased it, between autonomy and protection. The Advocacy Centre for the Elderly states:
It is the opinion of ACE that the overarching principle that should guide the law as it affects older adults is that seniors are people. They are presumed to be capable of making decisions and they have the right to make foolish decisions if they so choose. The government must be careful not to create laws, in its overzealousness to protect so-called vulnerable older adults, which actually limit their rights.
This tension may be inherent to this area of the law, arising from difficulties in addressing shifting levels of capacity and ability among some older adults as a result of aging process. Many of the ongoing policy debates in the area of elder law – for example, debates regarding the best approach to preventing and addressing elder abuse, or regulation of enduring powers of attorney and guardianship legislation, or the value of adult protection legislation – have at least some roots in this tension.
Tensions between the rights of older adults and those of other groups must also be acknowledged and addressed. These may raise difficult issues. For example, there may a conflict between the rights of support workers to work in a smoke-free setting and be protected from the health-risks associated with second-hand smoke, and the rights older persons living in institutional settings to make choices about their activities in what is, after all, their homes. Rules requiring mandatory retirement for police officers, firefighters and other safety-sensitive positions may be understood as attempts to balance the rights to independence, dignity and participation of older persons against safety risks for the community.
C. Relations Between Generations
Some policy frameworks refer to the notion of “intergenerational equity”; however, several organizations expressed concerns about this notion and its potential application to the law as it affects older adults. The notion of intergenerational equity has been expressed in a variety of forms. It has, for example, been conceptualized as part of an environmental sustainability framework, viewing the human community as a partnership across generations, with the current generation having a role as custodians of the earth for future generations. In a different approach, others have used this notion as a framework for analyzing the intergenerational effects of government expenditures and taxation decisions. Submissions to the LCO critiqued the notion that there exists an intergenerational struggle for access to scarce resources, in which the rights of older adults must be balanced against the competing interests of other generations. Some have suggested that it may be more helpful to focus on intergenerational solidarity, a term that has been used in a number of recent international documents, or on a lifecourse analysis of the impact of laws, policies and programs.
D. Respect for Diversity
Older adults are an enormously diverse group of people. The needs and circumstances of older adults may be affected by the following demographic factors:
No doubt yet other aspects of diversity could be identified. To reduce older persons to their age alone and to assume older persons are all alike in their needs, experiences and outlooks may be considered a form of ageism. The Ontario Human Rights Commission points out in its submission that older adults identified with grounds protected under the Human Rights Code (such as race or ethnic origin, disability, or sexual orientation) are particularly vulnerable to discrimination and harassment. For example, assumptions about older persons and assumptions about persons for whom English is a second language may compound each other, so that elderly immigrants are treated with very low levels of patience and respect, “as if they are stupid”.
It is beyond the scope of this document to give an exhaustive account of the impact of intersecting identities on the experiences of older adults. However, any approach to issues affecting older adults must take this into consideration.
There is a complex relationship between disability and aging, which is worth careful consideration. While aging is often associated with a decline in general health and the onset of activity limitations, a significant proportion of older adults report themselves to be in good or excellent health, and until age 75, almost all older adults are able to carry on the activities of daily life without assistance. However, older adults are vulnerable to a range of chronic conditions such as diabetes or high-blood pressure, are more likely to develop sensory or mobility-related disabilities, and the risk of developing dementia increases with age. As well, there are a growing number of older persons who acquired their disability at birth or at an earlier age, and have lived with disabilities throughout their lives. People with intellectual disabilities, for example, are living longer than at any other point in history. As part of the recognition of the diversity of older adults, it is essential to promote respect for both older persons who have developed disabilities as a result of the aging process and older persons who have aged with disabilities.
The Canadian Association for Community Living pointed to the importance of directly confronting, in any set of principles, the sources of diversity and exclusion:
CACL supports in general the sources and statements of principle identified in the Consultation Paper. However, we believe that the statements of principle need to more directly confront the issue of disability and diversity and stress equal respect and dignity regardless of the differences that come with age, and other differences across which exclusion and devaluation are often organized. Without a more explicit reference in the principles to grounds of exclusion that are often justified, unreasonably we believe, in law and policy, the LCO position could end up unintentionally reinforcing exclusionary thinking and philosophy.
Disability is only one characteristic that can result in older adults experiencing compounded or unique barriers to accessing the legal system or other services, and to enforcing their legal rights. DAWN – RAFH Canada provides an example in terms of women with disabilities:
It is important to note that women with disabilities (physical, mental, sensory, chronic illness) experience a much higher rate of abuse of all types than their non-disabled counterparts and more abuse than men who have disabilities. This is very important to keep in mind, as it is often very difficult for women with disabilities to even leave the abusive situation in which they find themselves, let alone take legal action against their abusers. Often, women’s shelters or transition houses are not accessible to women with disabilities. Therefore, it would appear that it would be even more difficult for women with disabilities to access any legal help, especially if they could not find a safe haven first.
As well as attitudinal barriers, it is common for older adults who belong to other vulnerable groups to experience significant gaps in programs or policies. For example, older adults who are recent immigrants face unique legal barriers. The ten year residency requirement for receipt of Old Age Security and the Guaranteed Income Supplement significantly contributes to high levels of low income among older adults who are recent immigrants. As well, the effect of sponsorship agreements creates barriers to access to long-term care homes. Similarly, there is an overall dearth of programming for older LGBT adults.
Consideration of diversity must be integrated with a life course analysis. The discrimination and marginalization experienced by, for example, Aboriginal and racialized individuals, and persons who have lived with disabilities mean that they are more likely to be low-income as they enter older adulthood. Similarly, the experiences and life outcomes of men and women are likely to have been affected in a variety of ways by gendered division of caregiving roles.
Interestingly, organizations working with LGBT individuals and with racialized individuals both pointed out that members of these communities who are now older adults grew up and lived through eras of very significant oppression, and often adopted strategies of silence and invisibility in order to survive. As a result, as older adults they are less likely than other older adults to complain to authorities regarding poor treatment or discrimination. As well, it may be harder for social service providers to reach out to these older adults. In other words, these individuals may have a magnified experience of the invisibility that often affects older adults.
Any approach to the law as it affects older adults must find a way to recognize and adequately address this diversity. Respect for the diversity of older adults may be considered an additional principle to the four identified above, or may alternatively be considered a factor or consideration to be taken into account whenever the law and aging is under discussion.
Based on research and the feedback from stakeholders, the LCO will adopt, for the purposes of further research and analysis, the principles of:
The LCO will interpret these principles in light of Canada’s human rights laws and commitments. The LCO will also consider the implications of intergenerational solidarity and a lifecourse analysis through its further research.