V. Deepening Understanding of the Implementation Gap: Access to the Law

As is apparent from the discussion in Chapter IV, equal attention must be paid to both the substance of laws and how they are implemented. Laws which on their face are neutral or even positive with respect to older adults, may be in practice ineffective or negative due to inadequate implementation and poor enforcement. This is the problem that the Advocacy Centre for the Elderly (ACE) has referred to “good law, bad practice”. 

In a number of areas of law, the law is good but the practice is bad. Therefore, law reform per se would not be necessary, but research on why the law is not being followed could be very useful since it has a negative impact on older adults and their rights. Good laws should not be changed merely because there is resistance to comply.[461]  

The Report of the United Nations Expert Group Meeting on the Rights of Older Adults specifically urges governments to “close the gap between law and the implementation of the law”.[462]  

Chapter IV highlighted several aspects of the implementation gap, including limited resources, and lack of knowledge about older adults or the law among those implementing programs and services. One of the most significant aspects of the implementation gap is access to justice (or the lack thereof) for older adults. This Chapter will take a deeper look at this aspect of the implementation gap and how the principles may point towards means of addressing it.  

While the importance of access to justice is widely discussed, there is considerable divergence of opinion as to what “access to justice” means and what would be required to ensure it.[463] It is beyond the scope of this document to consider these debates in depth; however, as a starting point for considering the issues in this section, it is essential to clarify some terms as they are used here.

In its broadest sense, the term “access to justice” can incorporate concepts of social justice, and involve considerations of substantive outcomes and the achievement of justice for previously excluded groups. In that sense, this project as a whole aims to increase access to justice for older adults.  

More narrowly, the term “access to justice” may be used to refer to access to the legal system as one mechanism for ensuring that the law as written is effective as intended. Unless the law is actually implemented and enforced, and is a living reality, it has little meaning for those whom it was intended to benefit.  The term “access to the law”, as it is used in this Report, refers to the ability of individuals to effectively access the intended benefits of the law.  

This concept of access to the law is clearly closely related to the issue of “good law/bad practice”, and the implementation gap. Lack of effective mechanisms for accessing and enforcing existing laws may be one of the reasons for this phenomenon.  

Clearly, one element of access to the law is access to the legal system, which includes the ability to acquire information about one’s legal rights, to obtain competent legal advice and representation as required, and to access existing legal dispute resolution mechanisms. However, access to the law can be ensured in many other ways; for example, through advocacy organizations such as ombuds offices, or administrative complaint systems or through proactive monitoring and auditing structures.  Some mechanisms for facilitating access to the law are discussed in this Chapter.  

A.    Older Adults and  Access to the Law 

As is described in Chapter II of this Report, older adults are an extremely diverse group, ranging widely in income, education, health status and place of residence, among other factors. The nature and level of concerns related to access to the law will therefore vary widely among older adults. For example, a married couple in their early 60s, in good health and with solid retirement savings and access to pension benefits, will have considerably fewer challenges in accessing the law than a widow who was recently sponsored to come to Canada in order to help care for her grandchildren, who is not entitled to government supports such as the Old Age Security (OAS), who does not have connections and supports in the community, and who does not have strong English language skills.  

Of course, concerns regarding access to the law are not confined to older adults. Many disadvantaged groups find their access to the law limited in a variety of ways. Immigrants may experience linguistic barriers in accessing the law, while those with low or moderate incomes will face financial barriers. Discrimination and the effects of historical disadvantage may marginalize racialized, Aboriginal or LGBTQ individuals, as well as others. As outlined in the LCO’s project on the law as it affects persons with disabilities, physical or other barriers may reduce access for persons with disabilities. As many older adults are also immigrants, low-income, racialized, Aboriginal, LGBTQ, persons with disabilities or members of other marginalized groups, they will face disadvantages as members of these groups, which in some circumstances are compounded by their age.  

There are also some circumstances that are particularly prevalent among older adults that may limit access to the law for this group. These circumstances were discussed at some length in Chapter II of this Report and include fixed incomes and withdrawal from the workforce, lower than average literacy and educational levels, the onset of health and activity limitations with the advancement of age, and limitations in life expectancy. Some significant portions of the older adult population also have their experiences shaped by cognitive disabilities, living environments that reduce their autonomy and community inclusion, and the consequences of physical, financial or other forms of dependency. These older adults may be at heightened risk of violations of their rights and may experience greater challenges in obtaining redress.    

Any discussion about access to the law and older persons must be placed in the context of the larger and ongoing discussion regarding the accessibility of Ontario’s legal system, issues also examined in the LCO’s projects on entry to the family law system and on vulnerable workers and precarious work.[464] Concerns have been raised from many quarters regarding the accessibility of the legal system, and in recent years numerous initiatives and reports have been undertaken to address the problem. As summarized by the Ontario Bar Association’s (OBA) Report, Getting it Right: 

Ontario’s legal system is in critical need of reform. A lack of resources in terms of judicial appointments, court facilities, justice and community support services and the under-funding of Legal Aid have combined with other challenges to create significant barriers to justice for Ontarians.  

We need change: just as a health care system is there to deliver health care, Ontario’s justice system is there to deliver justice. If we think health care is expensive, try disease. There comes a point in a patient’s deterioration that bandages just won’t work anymore. Ontario’s justice system is at that stage now. [465]  (emphasis in the original) 

One important aspect of access to the law is access to legal advice and representation, whether through lawyers or paralegals. The high cost of legal services has frequently been identified as a significant barrier for middle and low income individuals,[466] and the cost of legal services was repeatedly raised as a concern during the LCO’s public consultations. There are several initiatives in place to address the need. Some very low-income individuals may have access to legal services through Legal Aid Ontario; however, income criteria are restrictive, as are the range of issues addressed. In 2006, Ontario became the first jurisdiction in North America to license paralegals, who can represent individuals and provide legal services related to tribunal hearings, Small Claims Court, traffic matters and minor criminal matters.[467] The Law Society of Upper Canada administers a Lawyer Referral Service that provides individuals with a no-charge 30 minute consultation with a lawyer or paralegal.[468] Pro Bono Law Ontario facilitates pro bono legal services to low-income individuals for civil (non-family) legal issues not covered by legal aid.[469] As well, JusticeNet is a not-for-profit service helping people in need of legal expertise, whose income is too high to access legal aid and too low to afford standard legal fees.[470] The cost of legal services remains a serious problem. 

Older adults may of course deal with the full range of legal issues that affect individuals in general. However, as was noted in previous Chapters, due to their circumstances there are some issues which older adults are more likely to encounter. For example, because older adults tend to have withdrawn from the workforce and are also disproportionately likely to have needs related to impairments or disabilities, they are more likely to be users or potential users of government programs and services. They are therefore more likely to be affected by the laws related to the provision of certain government programs, such as health care, income security, long-term care homes, and home care supports. Because issues related to the receipt of government programs and services will often involve general policies and procedures rather than individual interactions and decisions, the legal issues that older adults face may often be extremely complex and may require systemic remedies.  

As well, the importance of issues such as elder abuse, powers of attorney, estate planning and informal caregiving to older adults, means that when older adults encounter the law, it will very frequently be in the context of their domestic lives and their personal relationships. This has implications for how older adults may access the law, and what outcomes they may seek from it. For example, they may be less willing to explore adversarial mechanisms for resolving issues.  

Charmaine Spencer has noted some of the implications of these dynamics for access to justice for older adults:

[T]he legal process often pits an individual against someone with whom they have an ongoing relationship –  a landlord or home care agency – so that many people who face real and serious barriers are reluctant to file complaints. This means that they will often wait until they have already suffered substantial harm before trying to deal with it. Formal and informal advocates can face significant challenges when acting for older adults and advocating for them in systems on which they are dependent or will need. There is the ever-pressing need to address ‘conflict’ while recognizing the reality that the older client must continue to use the service of the service provider with whom they are having conflict.[471]

B.    Assessing the Access Mechanisms Available to Older Adults

Taking the above considerations into account, how well do currently available mechanisms for accessing and enforcing the law serve the older adult population?

Given that older adults, as part of the general populace, are affected by all laws of general application, and therefore have access to all of the complaint and enforcement mechanisms available to the general populace, there are a wide variety of mechanisms available and regularly used by older adults in accessing the law. It is well beyond the scope of this discussion to outline in detail all these mechanisms. Rather, the focus will be on outlining some of the most important mechanisms currently available, given the types of issues most commonly encountered by older adults. This overview, albeit cursory, allows for some assessment of the characteristics and potential of various types of mechanisms in enhancing access to the law for older adults and helps us to identify some key elements of the implementation gap.

1.               Selected Key Mechanisms for Accessing the Law

Civil Litigation

Often rights accorded to older adults must be enforced through civil actions. A notable example of this is the “Residents’ Bill of Rights” which was initially found in the predecessor legislation including Nursing Homes Act,[472] and an amended and expanded version is in the new Long Term Care Homes Act, 2007 (LTCHA).[473] The Residents’ Bill of Rights includes the right to be treated with courtesy and respect; to be properly sheltered, fed, clothed, groomed and cared for; to be afforded privacy in treatment and in caring for personal needs; to keep and display personal possessions in one’s room; not to be restrained except under specified and limited circumstances; to communicate in private and to receive visitors; and many others. Under the LTCHA, these rights are subject of a deemed contract between the resident and the licensee.[474] Enforcement of these rights would therefore take the form of an action against the licensees for breach of contract.

Civil litigation is a challenging route for enforcement of rights. Despite efforts at speeding and streamlining, it is often a slow and time-consuming process. It is also a costly one, dependant as it is on access to a lawyer, and therefore out of reach for low-income Ontarians, excepting the minority who can access Legal Aid funding. For example, in the case of rights under the Residents’ Bill of Rights, the power imbalance between care home residents and licensees makes an action for breach of contract an unhelpful means of pursuing such basic rights.[475] The adversarial nature of the process may make it unsuitable for resolving some types of issues, although it should be noted that many matters are now subject to mandatory mediation.[476] Finally, individual actions are unlikely to provide an adequate remedy where systemic or widespread violations of rights are at issue. 

Criminal Justice System

The Criminal Code is the primary legal vehicle for ensuring accountability for elder abuse in Ontario. While the Code does not deal specifically with elder abuse, its general provisions cover most of the issues of concern. Relevant provisions include those addressing theft, assault, sexual assault, false imprisonment, failure to provide the necessities of life to a dependent, fraud, misappropriation of funds by a person in a position of trust and theft by power of attorney. The sentencing provisions of the Criminal Code provide that evidence that the offence was motivated by bias, hate or prejudice based on age shall be deemed an aggravating factor, as well as abuse of a position of trust or authority in relation to the victim.[477]

The Criminal Code also includes a number of evidentiary and procedural safeguards that may be of assistance in prosecutions involving these issues. For example, section 486.1 allows a judge to make an order, under certain circumstances, permitting a witness to have a support person of their choice be present and to be close to them during their testimony. Section 486.2 permits a judge to make an order permitting a witness to testify from behind a screen or outside the courtroom. Section 715.2 permits the admission of a video-recording as evidence in some circumstances where the victim or witness is available and able to testify, but may have difficulty communicating the evidence due to a mental or physical disability.  

However, many have noted that the criminal justice system, while important in addressing elder abuse, has significant limitations, and cannot provide a comprehensive response to the issue.[478] The relationship dynamics underlying some forms of elder abuse, together with the effects of shame and fear of retaliation, may make the victims of such abuse reluctant to disclose it or to see family members face criminal penalties.[479] Delays in the administration of justice can mean that victims of abuse may be dead or incapable by the time the case goes to trial.[480] For example, in R. v. Khelawon, the manager of a retirement home was accused of assaulting five residents; however, by the time the matter reached trial, four of the victims had died and the remaining victim was no longer competent to testify. The Supreme Court of Canada ruled that the videotaped statements made by the victims after the assaults were inadmissible as being unreliable, and as a result, the accused was acquitted.[481]    As is detailed later in this Chapter, dedicated elder abuse teams aim to address some of the challenges associated with addressing these difficult issues and there are several successful examples in Ontario.  

Administrative Tribunals

Administrative tribunals are an important mechanism for enforcing rights related to many areas of day-to-day life for older Ontarians. 

For example, rights under the Ontario Human Rights Code to freedom from discrimination on the basis of age in the areas of housing, services, employment, contracts and professional associations are enforced by filing an application with the Human Rights Tribunal of Ontario (HRTO). The protections of the Residential Tenancies Act with respect to rental housing and retirement homes are accessed through application to the Landlord Tenant Board (LTB). The Consent and Capacity Board (CCB) hears challenges to findings of incapacity with respect to treatment, property, personal health information and admission to long-term care. 

Administrative tribunals are meant to provide dispute resolution forums that are expert in their specific area, and provide relatively inexpensive, speedy and flexible procedures. In this way, they are intended to increase the accessibility of the law.  

Accessibility is the underlying rationale for both the “Dicean” and “post-Dicean” – the legal and the administrative – aspects of administrative tribunals. To be accessible therefore, administrative tribunals must provide a service that attracts those that wish to avail themselves of its jurisdiction. Since the time and expense required to resolve a dispute may inhibit parties … who are seeking the assistance of a workplace regime, disputes must be resolved quickly and inexpensively.[482] 

Tribunals such as the HRTO and the LTB include provisions for alternative dispute resolution processes, such as mediation. These tribunals have powers of inquiry, as well as broader discretion with respect to the rules of evidence.  

Tribunals are, however, subject to some of the same criticisms as the civil justice system. In practice, tribunal procedures can be complex, and given the importance of the rights at stake, many applicants feel disadvantaged without legal representation. A review of the website of the LTB reveals ten separate forms for tenant applications, each of which is accompanied by instructions of 10 to 20 pages in length, and many of which have filing fees attached. In recognition of the complexities of the human rights application process, a Human Rights Legal Support Centre has been created which provides supports to some applicants to the HRTO. 

As well, tribunals, like the civil justice system, are subject to delays and backlogs. For example, there have been concerns about the length of time required for resolution of human rights matters, both prior to and following the 2008 reform of the human rights system.[483]  

Administrative Oversight Mechanisms

Many complex systems include mechanisms for monitoring and oversight. For example, one of the mechanisms in place to ensure that long-term care homes comply with the law is the accountability framework implemented through the Local Health Integration Networks (LHINs). Under the Local Health System Integration Act, 2006, and the Memorandum of Understanding between the Minister and each LHIN, the LHINs are given significant service accountability responsibilities and tools, including service accountability agreements with each of their health service providers (including long-term care homes).[484]

Administrative Complaint Mechanisms

Access to the law may also be provided through administrative complaint mechanisms. The complaint mechanisms under the Consumer Protection Act provide one example. As older adults are frequently the target of consumer fraud, consumer protection is of particular concern to this group. While victims of violations of the Consumer Protection Act may pursue a civil action, they also have the option of registering a complaint with the Ministry of Small Business and Consumer Protection. The Ministry has the power to make inquiries, gather information and work towards the resolution of disputes and complaints of any matter that comes to its attention with respect to consumer protection. The Ministry’s investigative powers are broad, and include powers to obtain warrants and to conduct site inspections. The Ministry has the power not only to address individual complaints but to audit and control systemic practices.[485] 

Similarly, the Ministry of Health and Long-Term Care operates the ACTION line as a means for residents of long-term care homes to report concerns about the care and services that they receive, as well as concerns regarding home care (as is described further in Chapter VI of this Report). An operator assesses the urgency of the matter and may refer the information to a compliance advisor to complete an investigation. The monitoring system for long-term care homes, including the ACTION line, was the subject of an investigation by the Ombudsman Ontario, which concluded in December 2010. The Ombudsman noted a number of issues with the ACTION line complaints process, which the Ministry committed to address. The Ombudsman noted that the investigation process at that time was not particularly rigorous: 

To begin with the first contact most individuals have with the Ministry is with a call centre which is not equipped to provide any detailed information regarding long-term care issues. Some complainants as well as Ministry compliance staff expressed concerns about the accuracy of information provided by Infoline/Action Line staff to individuals calling to report resident care concerns.  We also learned that the Ministry routinely refers individuals back to the home that is the subject of the complaint. Many complainants have expressed fear about complaining directly to a home because of the risk of reprisal against them or their loved ones. Some of those who complained to our office noted that as a result of making a complaint to a specific long-term care home they were threatened with being banned from the home and in one case a lawsuit was threatened. [486] 

The Ombudsman also noted problems with delays, cursory investigations, and a lack of transparency and accountability regarding the results of the investigations. As of mid-2011, the Ministry and the Ombudsman were continuing to work together to address the issues.  

Statutory Investigative Agencies

In some case, specialized bodies have statutory investigative powers. For example, the Office of the Public Guardian and Trustee (OPGT) has a statutory duty to investigate any allegations that a mentally incapable adult is suffering or is at risk of suffering serious financial or personal harm. It has taken the position, however, that it will undertake such investigations only where no other alternative is available. The OPGT may, where the results of an investigation warrant, request a court to grant it temporary guardianship.[487] The OPGT’s investigative powers include a right of entry to facilities or controlled-access residences, a right to meet in private with the allegedly incapable person and a right of access to relevant records.[488] 

ACE has raised concerns regarding the OPGT’s narrow approach to its investigative powers, reporting that it often receives calls from friends, family members and health practitioners who have contacted the OPGT with concerns regarding the well-being of an older adult and who have been told that an investigation will not be completed.[489] 

On the other hand, the Canadian Association for Community Living has raised concerns that there are not sufficient checks and balances on the OPGT’s exercise of its statutory powers: 

Our Association is concerned that the exercise of authorities under the OPGT and the Consent and Capacity Review Board are without adequate checks and balances.  We say this in full recognition that there are individuals who work in both of these systems, which undertake their work with great sensitivity and care to the needs of their clients and those who come before them.  We recognize the necessity of such authorities.  We believe they have an important place in a system to help manage and support personal decision making for older adults.  But in the absence of other elements of a system that independently address adult protection issues, provide independent advocacy, and provide support in the exercise of legal capacity, these Offices can do harm.  We believe that some actions of the OPGT can be, and have been, extremely harmful to the integrity of persons and families.[490] 

Advocacy Institutions

There are also a number of institutions dedicated to advocating on behalf of groups including older adults.  

The Ontario Human Rights Commission (OHRC) has a mandate to undertake research and public inquiries, develop policies and conduct programs of public education in order to advance the purposes of the Ontario Human Rights Code, which include the prevention and redress of discrimination on the basis of older age. While the OHRC no longer receives and investigates individual complaints, it does have the power to initiate and intervene in applications at the HRTO.[491] As noted earlier, it has in the past exercised its broad advocacy powers to advance the rights of older Ontarians through public education, advocacy and policy development,[492] a notable example being the involvement of the OHRC in the successful campaign to amend the Code with respect to mandatory retirement.[493] 

There have been, however, relatively few human rights complaints (now applications) related to age discrimination, and most have been related to employment discrimination.[494] Human rights mechanisms have not at this point proved to be an effective method for challenging the systemic disadvantages faced by older adults in terms of institutional care, provision of caregiving supports, access to health care services, and housing. 

The Ombudsman of Ontario has a mandate to receive and investigate complaints from individuals regarding the provision of services by the provincial government and its organizations. While the Ombudsman cannot issue orders, it can issue reports and recommendations. In recent years, the Ombudsman has used its powers to conduct many high-profile systemic investigations on issues which affect large numbers of people. The Ombudsman does not have the power to investigate issues related to the extended public sector, including municipalities, hospitals, and long-term care homes, all institutions of particular importance to older adults, and has been advocating for the extension of its mandate to cover this important sector.[495]  Because its mandate includes government services, the Ombudsman’s mandate has, however, included the power to conduct a systemic investigation into the Ministry of Health and Long-Term Care’s oversight of the long-term care home sector, as outlined above.[496]  

Among the most important of the advocacy institutions available to older adults is Legal Aid Ontario. The mandate of Legal Aid Ontario is to provide access to justice for low-income individuals.[497] Legal Aid Ontario provides very low-income individuals with access to legal services through a variety of mechanisms, including legal aid certificates, duty counsel, advice lawyers, and legal clinics.  

The major criticism of Ontario’s legal aid system is its very limited scope. The income thresholds for eligibility for its services are very low. For example, a family of four with an annual income of anything over $37,000 may not qualify.[498] Many people who are living on low or fixed incomes will not qualify for legal aid, despite being unable to afford to pay for legal services out of their own pockets. Further, even those who qualify may be asked, if they are homeowners, to put a lien on their house in order to receive assistance, something which many older adults are understandably hesitant to do lest they lose their homes. Finally, Legal Aid covers only a limited number of subject areas: certificates are not provided, for example on civil matters such as violations of consent and claims against long-term care homes.[499] 

An innovative service funded by Legal Aid Ontario is ACE. ACE was Canada’s first legal clinic devoted to the needs of older persons, and still one of the few such clinics in the country. ACE provides not only legal advice and representation to qualifying older adults, but also public legal education and law reform on behalf of older adults in general.[500] 

Mandatory Disclosure and Rights Advice

There are a number of situations where, under Ontario law, individuals must be informed of their rights by a rights advisor. The entitlement to rights advice is triggered when there is a substantial change in the status of the individual, such as where a patient in a psychiatric facility has his or her status changed from voluntary to involuntary, or where a physician decides that a patient is incapable to manage property. The rights advisor cannot be a person involved in the direct clinical care of the person to whom the rights advice is given. The rights advisor must explain the significance of the change in legal status for the individual, and if requested to do so, must assist that person to apply for a hearing to challenge the decision. Failure to provide appropriate rights advice can invalidate a finding of incapacity.[501]

Rights advice is not mandated for persons found to be incapable outside of a psychiatric facility; however, there is an entitlement to rights information, which is provided by health care professionals.[502] The requirements for rights information are laid out by Guidelines of the relevant health care professions, so that failure to provide appropriate rights information can be the source of a complaint to the governing body of the profession, as is briefly described below. For example, the Policy Statement on Consent to Medical Treatment for the College of Physicians and Surgeons of Ontario requires the physician to: 

• inform the incapable patient that a substitute decision-maker will assist the patient in understanding the proposed treatment and will be responsible for making the final decision;
• involve the incapable patient, to the extent possible, in discussions with the substitute decision-maker;
• if the patient disagrees with the need for a substitute decision-maker, or disagrees with the involvement of the present substitute, advise the patient of his or her options, including finding another substitute of the same or more senior rank, and/or applying to the CCB for a review of the finding of incapacity; and
• reasonably assist the patient if he or she expresses a wish to exercise the options outlined above.[503]

Self-Regulation 

In some cases, institutional sectors or service providers have developed mechanisms for self-regulation. For example, health professions such as the medical, nursing and legal professions are self-regulating, within the parameters of the Regulated Health Professions Act, 1991 and the accompanying Health Professions Procedural Code.[504] Within that framework, the health professions have established regulatory colleges which are responsible for regulating the relevant profession in the public interest. The framework set out by the Act and the Procedural Code are intended to protect the public from unsafe, unqualified or incompetent practitioners. The Procedural Code sets time frames for addressing complaints, as well as substantive and procedural rights for complainants.  ACE has pointed out that these mechanisms, like others are at times subject to concerns related to cost and timeliness: 

[i]t is ACE’s experience that the complaints process is lengthy and, if legal counsel is retained, expensive. Some of our clients opt not to make a complaint because it will take too long to address a problem that needs to be addressed immediately.[505] 

Internal Institutional Mechanisms

Legislation may also mandate internal institution mechanisms for identifying and resolving issues. For example, under the new LTCHA, each home must have a Residents’ Council, with the power to advise residents on their rights and obligations; review certain documentation related to the home; mediate and attempt to resolve disputes between residents and the home; and report any concerns and recommendations to the Minister. The LTCHA also permits the creation of Family Councils, which have powers similar to those of the Residents’ Councils. As the LTCHA is new, and those Councils in existence have developed on a voluntary basis, it is difficult to assess how effective these Councils will be in identifying and addressing issues.[506]  

Some hospitals, long-term care homes and retirement homes employ patient advocates whose function is to assist patients or residents. These advocates are not mandated by law. ACE has commented on these patient advocates as follows:

One must be wary of this type of advocate because their objectivity may be compromised as they are paid by the institution itself. Furthermore, many of these advocates would appear to have no power and are there merely to placate those who complain when problems arise. Although these advocates can be a source of support and assistance, where there are real difficulties involving serious conflicts with the institution, it is unlikely that they will be able to advocate as strongly as most people would like, or as strongly as an advocate who is not connected with the institution due to a potential conflict of interest.[507]

2.               Systemic Barriers

A review of the above suggests some themes and common gaps or problems in the mechanisms available to provide older adults with effective access to the laws intended to protect or benefit them. 

Ageist  and Paternalist Attitudes and Access to the Law

The potential impact of ageism in the development and application of laws was considered throughout Chapter IV of this Report. Ageism and paternalism may, of course, also shape the experience of older adults in attempting to access the law and may be a key element in the implementation gap.  

For example, ageist and paternalistic attitudes have been identified as a key cause of elder abuse (as well as themselves a form of abuse), whether in private settings or government institutions.[508] Lack of respect and sensitivity by police officers may create a barrier to older adults reporting abuse: 

[N]early half of the seniors who reported a negative interaction with the police recall experiencing some form of mistreatment, specifically lack of respect, compassion, or understanding from the responding officer. Seniors need to feel appreciated, understood, and reassured that their problems are important and that they are doing the right thing by reporting.[509] 

It has been suggested that subtle ageism among health care providers may limit access to health care for older adults; for example, there is a tendency to treat mental illness in older persons as less worthy of intervention than when it manifests in younger persons, and to misdiagnose depression among older adults as dementia.[510] A more systemic form of ageism in health care can be identified in the problematic practice of physicians who manage their caseloads by screening out patients with chronic or complex medical issues, many of whom are older. [511] 

Negative, paternalistic attitudes and stereotypes about older persons may combine with negative attitudes related to gender, race, sexual orientation, disability or other aspects of identity to create particular stereotypes and barriers. The World Health Organization (WHO), for example, has recommended that elder abuse and responses to it be considered in the context of gender and socio-economic status, as these factors underpin almost all contexts of elder abuse.[512] An emphasis on respect for the dignity and worth of older adults in the implementation of the law as well as in its design, is necessary for effective implementation of the law.  

Inadequate Training and Information

Given the complexity of many areas of elder law, it is perhaps not surprising that those charged with implementing these laws have often received inadequate training and information. Service providers, government officials and even lawyers may act on misunderstandings of the law or may provide older adults with incorrect information about the law. 

Ageism can also be manifested when individuals and organizations do not take the time to understand and accurately represent the law to those to whom they provide the service. Older adults’ dignity, personal integrity, and health care rights are fundamentally affected by that inaction. It has been pointed out for example that patients often receive misinformation from health care providers or sometimes from government forms on health care consent, advance care planning, etc. In some cases, as previously noted, tools such as advance care directives which are intended to be instruments to aid personal autonomy, become misused and in effect circumvent communication with the older person.[513] 

For example, only a small number of lawyers in Ontario have developed expertise in the legal issues that mainly impact on older adults, such as regulation of congregate settings, public and private home care, guardianship applications, health care consents and elder abuse. Lawyers who are not familiar with the relevant subject area may have difficulty in providing competent representation.[514]  

Similarly, health care custodians may misunderstand and misapply the requirements of the Personal Health Information Protection Act, 2004, which sets out a framework for collecting, using and disclosing personal health information, which may result in undue barriers for individuals attempting to access or protect their health care information.[515] 

So one of the problems in the hospital system is that doctors and nurses and hospital staff do not know the rights of the patient and the patient does not know what his or her rights are vis-à-vis the hospital staff. And that is a source of great anguish because there are certain things that people want to have done or not done and the hospital tries to override them and so this end-of-life area is, it’s crucial that something be done about patient rights and educating hospital staff.

LCO Focus Group, Older Women, October 21, 2011

Professionals and service providers may also require training and education on issues affecting older adults. For example, in order to meet their responsibilities, professionals and service providers may require training on how to identify and respond to signs that an older person may have a disability that affects their legal capacity to make decisions, or that an older person may be experiencing some form of elder abuse. That is, it is important that professionals and service providers have access to and make use of information to ensure that the needs and circumstances of older adults are taken into account, and to understand and take account of the diversity that exists among older persons. In the context of the legal profession, increased focus on elder law in law school curricula, and more opportunities for continuing education following licensing may provide an important starting point.[516] 

Access to Information for Older Adults

A lack of knowledge among older adults of their rights and responsibilities under the law was a pervasive theme in the LCO’s public consultations. Almost one-fifth of the older adults responding to the LCO’s consultation questionnaire either disagreed or strongly disagreed with the statement “I am well informed about my rights and the legal options available to me”. Many respondents expressed frustration with the barriers they experienced when trying to access information and raised concerns about the difficulties in navigating complex systems. During the focus groups, many participants had difficulty in identifying where they might go to find information about rights and responsibilities. This was particularly apparent during the focus group for newcomer older adults.  

The problem is particularly acute because many of the laws affecting older adults are both high-stakes and difficult to understand and navigate. Decisions regarding capacity and guardianship, or long-term care, or end of life matters have serious consequences for older adults and those around them. It is therefore particularly important to ensure that older adults are able to access the information necessary to make these important decisions.  

As a result, one of the premier priorities emphasized by all those involved in this project is education for both service providers and older adults. ACE has suggested that education has the potential to help close the gap between good law and bad practice, by putting residents in a position to exercise their rights and force good practice.[517] 

What I find is that many of the people I talk to in our residence are not aware of the different parts of government that will help out financially. For example, I’ve talked to three people in the last two weeks they had a tough time making ends meet and yet they’ve never been told about the GIS and this is available to all low-income residents. And it hurts me when I find out that somebody’s been without 3000 to 6000 dollars a year, enough to get them by and enough to get the worries off their mind, financially.

LCO Focus Group, Older Adults in Long-Term Care, October 31, 2011

Lack of Oversight

At times, there is a lack of clear rights and protections for older adults, which leaves them vulnerable to abuse or mistreatment.  

For example, over the years, concerns have been expressed regarding the oversight regime for retirement homes in Ontario. Retirement homes are defined by the new Retirement Homes Act, 2010 as  

a residential complex or the part of a residential complex,

(a) that is occupied primarily by persons who are 65 years of age or older,

(b) that is occupied or intended to be occupied by at least the prescribed number of persons who are not related to the operator of the home, and

(c) where the operator of the home makes at least two care services available, directly or indirectly, to the residents…[518]

Retirement homes operate across a range of services and models. Some are very small; others are large and institutional. Services may include meals, assistance with the activities of daily living, recreational and social programming, housecleaning and laundry, personal emergency response services and nursing care.  With significant pressures on the availability of long-term care and home care services in Ontario, retirement homes are an essential part of the landscape for older adults who need supports. Retirement homes may offer many of the same services as long-term care homes, including services for high-needs patients and locked wards, making adequate oversight and protections essential.[519] 

Until recently, the retirement home industry essentially operated on a “consumer choice” model. There was no provincial licensing or granting of approval to operate, no government funding, and no oversight of the services provided, except through the industry association’s complaints line. The Residential Tenancies Act includes some requirements for providing potential residents with contractual information (the Care Home Information Package, or CHIP).[520] 

Very considerable concerns were raised regarding the lack of effective protections for residential retirement homes, particularly as a significant portion of the residents of these homes may be considered vulnerable.[521] It has been noted that a consumer choice model is not well suited to this particular market: 

[F]or the market to operate effectively, certain conditions must be met:

• Consumers must have an adequate supply of products or services to chose from;
• They must be capable of exercising choice (that is, they must have decision making capacity and be free from coercion or undue influence) and
• They must have recourse when things go wrong. 

These criteria are noticeably absent in retirement homes and similar types of supportive housing in Canada.[522] 

Ontario has very recently introduced a new regulatory model for retirement homes, one which is still transitioning into full effect. The Retirement Homes Act includes provisions that set standards for retirement homes, including a Bill of Rights; requirements for provision of information to residents, their families and the public; the establishment of Residents’ Councils; development of plans of care; requirements for staff hiring and training; prevention of abuse and neglect; and restrictions on the use of restraints and locked-in wards. A regulatory authority is created, which has the authority to issue or refuse licences to retirement homes, appoint inspectors to ensure that the minimum standards and any conditions placed on licences are met, and to receive and review complaints regarding licensees. While the government may appoint members of the Board of Directors of the Authority, it may not appoint a majority of the members. Concerns have been expressed that the Authority is likely to be industry-dominated, and therefore be unable to provide effective oversight for this industry. The effectiveness of this form of regulatory structure in ensuring dignity and security for older adults, many of whom may be disadvantaged or at-risk in some fashion, remains to be seen. 

Below, a case example focusing on continuing powers of attorney highlights the importance and the challenges associated with developing effective mechanisms for monitoring, accountability and transparency. 

Lack of Appropriate Mechanisms for Recourse

In some cases, there is no effective method of recourse for a violation of rights. As discussed above, the Residents’ Bill of Rights for residents of long-term care homes is one example: where the only redress for a violation of rights is a civil action for breach of contract against the institution where one lives and on which one is dependent for services, the potential for redress is illusory.[551] 

Similarly, as is discussed at length in Chapter VI of this Report, while there is a review process for the decisions of Community Care Access Centres (CCACs), which are responsible for managing access to home care supports, older adults are often ill-informed about this right and how to access it. While a termination of services can be appealed from a CCAC to the Health Services Appeal and Review Board, there is no appeal mechanism related to the quality of services provided. Community Legal Education Ontario (CLEO) suggests that one method of recourse may be to sue the CCAC for breach of contract. However, since Legal Aid does not cover these types of issues, this is not likely an effective avenue for redress for a person dependent on publicly funded home care. Effectively, this means these rights are, for the most part, “paper rights” only, and the security and dignity of affected older Ontarians are at risk.[552] 

Complaint-Based Systems

The majority of systems in place to ensure the effective application of the law to older adults require the aggrieved individual to take action individually to raise and resolve the issue, whether through commencing litigation before a court or administrative tribunal, or filing a complaint through a government process, third party system or internal complaint process.

Complaint-based systems leave decisions about action to the initiative of older adults. This may be understood as respecting the autonomy of older adults. In some circumstances, however, complaint-based systems may be problematic, particularly where older adults are at-risk or marginalized due to disability, low-income, immigration status or other issues. Where older adults are dependent on others for ongoing care or supports, whether the others are family members or service providers, the negative consequences of filing a complaint against these individuals or institutions may be seen to outweigh any potential positive outcomes. As well, complaint systems may involve expenses, bureaucratic obstacles, or delays beyond the capacity of vulnerable older adults to absorb. As is discussed later in this Chapter, for this reason there has been recent interest in the possibilities associated with less adversarial means of resolving conflict, such as mediation.

Where services are targeted to at-risk older adults, as with, for example, long-term care or home care services, systems that rely entirely on older adults to identify issues and pursue remedies may fall short of addressing needs.  As well, where systemic problems are at issue, individual complaint systems are unlikely, by themselves, to spur the changes that are needed to make a more effective system.  

Complaint-based systems are common in many areas of the law, and so the issues raised here are not necessarily, or not all, unique to older adults. The limitations of complaints-based systems are also an issue in the LCO’s project on Vulnerable Workers and Precarious Work,[553] as well as in the project on The Law as It Affects Persons with Disabilities. 

Failure to Recognize and Accommodate the Needs of Older Adults

As noted above, while older adults are an extremely diverse population, they are disproportionately likely to live with a disability or chronic health condition, to have lower levels of literacy and numeracy, to live on a fixed income, to rely on the assistance of others to manage the activities of daily living and maintain their independence, to live in a congregate setting, and to have a relatively short life expectancy.  

Mechanisms for implementing and enforcing laws that affect older adults may not take these circumstances into account, and may therefore create barriers.  As an obvious example, while efforts are being made to increase the physical accessibility of the justice system,[554] much remains to be done. The costs of accessing justice are a significant issue for many older adults, as they are for many other groups. The LTB, for example, charges an application fee and has the power to award costs against an applicant, which may be a disincentive to pursue one’s rights.[555] As a further example, it has been pointed out that although public legal education has made important contributions to making the law more understandable and more accessible for many, it is still geared to the functionally literate person, which leaves many older adults at a disadvantage: older adults continue to point to the lack of plain language information on legal rights as a serious barrier. Further, 

[i]ncreasingly in many parts of Canada, public information on the law and government information about services and entitlements has been shifting from people sources to virtual sources such as the Internet.  The Special Senate Committee on Aging notes that a reliance on web-based information assumes a basic level of literacy and people’s ability to access the internet.[556] Many older adults, particularly older women, do not have access to or cannot use the Internet. In 2007, about one third (33.8%) of all men aged 65 and over and less than one quarter (23.1%) of all women aged 65 and over in Canada accessed the Internet at home and only about 1% of seniors used computers in public places like libraries.[557] Internet use still is largely limited to higher income seniors and those with higher education.[558] 

A recent example of failure to acknowledge and accommodate the particular needs of older adults occurred in the context of bylaw enforcement in the City of Toronto. The neighbour of an older resident with dementia asked the City to cut down a mature tree on the older resident’s property. An order for the removal of the tree was issued by a Property Standards Officer and the tree was ultimately cut down, at considerable expense to the property owner. An investigation by the City Ombudsman found that the City lacked proper policies or processes for accommodating the needs of individuals with diminished legal capacity, resulting in unfairness to this individual. The City was aware of the resident’s dementia and diminished capacity, but did not take steps to ensure that the resident, through her substitute decision-maker, was fully informed about the issue and had appropriate opportunities to respond and have concerns addressed. The Ombudsman commented that: 

Public service is most accessible to those who can navigate the established processes. It favours those with education and those who can meet the bureaucracy on its own terms. In this case, the resident is marginalized and is representative of many others in similar situations. In fact, many residents with dementia do not have a family member readily available to advocate on their behalf. The absence of policy or an established process to accommodate persons with dementia or diminished capacity is a gap MLS must address. At a systemic level, its absence creates an adverse impact on what is already a vulnerable group. A process to fairly serve the needs of those with dementia is especially urgent as the population ages. It is time to address this gap … The City cannot hope to be accessible, equitable or age friendly to residents with dementia unless it has ensured that barriers to this population have also been identified and removed.[559] 

The challenges in ensuring mechanisms for access to the law take into account the needs of older adults will differ depending on the type of law in question. Where laws are age-based or mainly affect older adults, systems may be specifically designed to meet the needs of older adults. Where older adults make up a smaller proportion of those affected by a law, legislators and policy-makers must consider whether universal design approaches will be sufficient, or if some older-adult specific procedures or supports are necessary in order to ensure meaningful access for older adults.[560] 

Adversarial Systems

Many of the issues of most concern to older adults – for example, capacity and guardianship applications; elder abuse; and services in long-term care homes, retirement homes and home care – often involve ongoing relationships on which older adults are dependent for their well-being. This raises difficulties for implementation, monitoring and enforcement.[561] 

Older adults may be reluctant to use adversarial systems in these circumstances. For example, older adults who are subjected to abuse may be very reluctant to see their abuser prosecuted through the criminal law system, despite their desire for the abuse to end.[562] 

As well, in such circumstances, adversarial systems may exacerbate rather than resolve issues. For example, the OBA has pointed out that substituted decision-making laws have become, to a significant degree, a venue for familial disputes, and may foster conflict rather than resolving issues.[563]     

Inadequate Remedies

Even where older adults pursue enforcement of their rights, the remedies available may be inadequate to provide real redress to older adults, or, where the violation of rights was caused by a systemic issue, to spur meaningful change. For example, because there are very few damages options available to older adults, civil litigation may not be an effective means of obtaining redress. Not only does this potentially perpetuate injustices, it creates a disincentive for older adults to attempt to enforce their rights, and thereby may prevent problems from coming to light.  

The previously highlighted case of Royal Arch Masonic Homes involved the death of a 77-year-old female resident of a long-term care home, following a fall that resulted from the negligence of a care aide. The three adult children of the victim sought redress from the long-term care home. The Court determined that the only damages that the long-term care home was obliged to pay were the funeral and burial costs. There was no economic loss resulting from the death of the victim, and the Court declined to award costs for loss of care and companionship, due to the victim’s age and her various physical and mental disabilities.[564] It has been pointed out that such a judgment essentially permits caregivers to harm older adults with impunity.[565]

C.    Strategies for Enhancing Access to the Law for Older Adults and Addressing the Implementation Gap

It should perhaps be unnecessary to emphasize that a right without an effective mechanism for redress is not really a right at all; it is merely a statement of aspirations. A first principle for ensuring effective implementation of the law for older persons is surely to make certain that legal rights and protections for older adults are accompanied by clear and effective mechanisms for accessing those rights and protections.  

No single strategy for ensuring access to and enforcement of the law will address all concerns. Some will work better in some contexts or for some groups of older adults than others. In some cases, it may be appropriate to use a range of mechanisms. For example, as is apparent even from the brief discussion above, Ontario’s long-term care home system includes a variety of mechanisms for identifying and addressing issues, including Resident and Family Councils, the “Bill of Rights” embedded in the LTCHA and the Long-Term Care Action Line. As well, the LTCHA imposes a duty to report abuse or improper treatment, includes whistle-blowing protections, requires homes to provide information to residents about complaint procedures, and imposes a duty on licensees to respond to complaints and to report any complaint about care or the operation of the home to the Ministry.[566] Given the complexity and size of the system, this multi-faceted approach may be more effective than any single tool could be. As the Ministry comments, “there are multiple mechanisms available under the LTCHA for accessing information and enforcing the requirements under the LTCHA. Each mechanism may not always serve the needs of every resident, but it is important to provide for multiple mechanisms through which issues may be addressed.”[567] 

The above review of barriers to access to the law for older persons suggests the following as key strategies for designing effective mechanisms for older adults.

1.               Combating Ageism and Paternalism 

Those working in the field of elder law have repeatedly emphasized the importance of developing and implementing strategies for combating ageism and paternalism, both in the populace at large and among those charged with designing and implementing laws and policies that affect older adults. Unless ageist and paternalistic attitudes are addressed, they will inevitably taint the application of the law, regardless of how well it is designed. Thus, the United Nations, the OHRC, and most recently the Special Senate Committee on Aging, to name just a few bodies, have made recommendations for anti-ageist education and training.[568] Anti-ageist education and training is fundamental to ensuring respect and dignity for older persons.

Public education is, for example, central to the Ontario government’s 2002 Strategy to Combat Elder Abuse. This includes coordination of community services, training for front-line staff, and public education to raise awareness. Public education initiatives include 53 community response networks, and a province-wide seniors’ safety toll-free line that provides information and support in over 150 languages. The Ontario Network for the Prevention of Elder Abuse has developed a core curriculum and resource guide to educate workers about elder abuse and interactions with older adults, online e-training modules on financial and emotional elder abuse, a variety of training materials and a number of public service announcements.[569]

The general population and those who care for or provide services for older adults should be trained (or at least aware of the frustrations) to help and consider older adults and their needs. Older adults have a specific set of needs plus their individual needs. Then older disabled adults have another set of needs and frustrations. As adults get older they all have more needs. I worry about the younger generation and their respect for older adults.

LCO Consultation Questionnaire Respondent

ACE has this to say about the type of education and training that service providers should receive: 

The most important principle that needs to be conveyed to all stakeholders is that seniors are people. Older adults are presumed to be capable of making decisions and they have the right to make foolish decisions, just as people living outside a congregate setting do. ACE is of the opinion that many staff members and some families do not understand that older adults are allowed to take risks or make foolish decisions. Educational resources need to emphasize that residents’ rights are a two-way street: not only do they recognize the independence and autonomy of residents, but they protect staff from liability.[570] 

Anti-ageist training and education must address, not only negative attitudes, but the tendency to forget the existence of older persons and to fail to take into account their needs and circumstances: 

The needs of all citizens, including older persons, must be taken into account up-front so that physical, attitudinal and systemic barriers are not created. Assuming that everyone is young and able-bodied and designing programs and facilities on that basis is a form of ageism that must be addressed in our society. The [Ontario Human Rights] Commission heard that some levels of government are now undertaking gender-based analysis. Similarly, government should consider the impact of laws, policies and programs on all age groups.[571]

2.               Empowering Older Adults

As noted above, older adults frequently lack information about their rights or about the benefits and services that they are entitled to. Given the complexity of many areas of the law that disproportionately affect older adults, this is perhaps not surprising. However, it is problematic. Older adults who are not aware of their rights are not able to assert and claim those rights, with the consequence that the law may become ineffective.

Lack of awareness of legal rights and mechanisms for redress undermines the autonomy and independence of older adults. Without knowledge of their rights and recourse, older adults lack the ability to make meaningful choices about how they will live their lives and take responsibility for the things that affect them. 

As a person who is supposedly literate and educated, I have found it very difficult to find out what happens when you turn 65. What do you get, what do you not get, what are your responsibilities. It’s been a trial and error process. There is no sort of easy way at the moment to find out because it’s all little different pieces. And I still don’t know, for instance, exactly what you get health-wise. I mean, I noticed my drugs cost less and I think I’m able to get glasses when I couldn’t before, but I don’t know what all the pieces are and finding out is very difficult.

LCO Focus Group, Older Women, October 21, 2011

Provision of accurate, accessible information about legal rights and how to enforce them is therefore essential to ensuring access to the law for older adults. 

People have to know how to research and find out about their rights. No one agency does that for you. I spent hours on the phone talking to various government agencies and to individuals who have had to `fight’ the system.

LCO Consultation Questionnaire Respondent

Ensuring access by older adults to information about their rights and responsibilities under the law and how to access these promotes the participation and inclusion of older adults, as well as fostering independence and autonomy. Those involved in the LCO’s consultations had many suggestions about means to enhance access to information for older adults, including greater access to in-person or telephone information (as opposed to distribution of information mainly via internet or lengthy documents), creating a centralized clearinghouse for information related to older adults and the law or a free telephone hotline to direct people to appropriate resources, and making greater use of formal and informal seniors’ organizations as distribution points for information. In the context of congregate settings, ACE, in their commissioned research paper for the LCO, made several recommendations related to education, including the development of a standard curriculum, along with comprehensive training respecting residents’ rights, for residents, families and staff of long-term care homes and retirement homes.[572]

3.               Designing Mechanisms that Take Older Adults into Account

Mechanisms for access to the law must be designed in a way that takes older adults into account, regardless of whether or not the law in question is specifically targeted to older persons. As the OHRC has stated in its Policy on Discrimination Against Older People Because of Age: 

The Commission has defined “ageism” to mean, in part, “a tendency to structure society based on an assumption that everyone is young, thereby failing to respond appropriately to the real needs of older persons.” Ageism occurs when planning and design choices do not reflect the circumstances of all age groups to the greatest extent possible.  

The Supreme Court of Canada has recently made it clear that society must be designed to be inclusive of all persons. It is no longer acceptable to structure systems in a way that assumes that everyone is young and then to try to accommodate those who do not fit this assumption. Rather, the age diversity that exists in society should be reflected in the design stages so that physical, attitudinal and systemic barriers are not created. 

As a corollary to the notion that barriers should be prevented at the design stage through inclusive design, where systems and structures already exist, organizations should be aware of the possibility of systemic barriers and actively seek to identify and remove them.[573] 

This means that mechanisms should take into account the following, for example: 

• the financial demands imposed on those seeking justice, both in the context of low-income, and for those who are living on fixed incomes;
• accessibility for persons with physical, mental, cognitive and sensory disabilities, and for those with health limitations;
• how information and assistance may be provided to those whose literacy or numeracy or comfort with technology is limited;
• whether dispute resolution and remedies can be provided within time limits that are meaningful for older persons;
• providing meaningful access for persons who are living in settings such as long-term care homes, where there is more limited access to information and to the broader community;
• how meaningful access can be provided for older adults who face additional barriers due to gender roles, linguistic or cultural barriers, immigration status, sexual orientation, dependency relationships, or other issues. 

As was discussed in Chapter III, in some cases the needs of older adults can be taken into account through inclusive design. Inclusive design approaches are appealing for law reform because the benefits may be widely applicable beyond older adults, and such initiatives may thereby garner widespread support rather than resentment. For example, policies or programs that address physical accessibility issues will also benefit persons with disabilities and frequently families with young children. Communication strategies that reach beyond the internet and focus on plain language will improve outreach in many communities, not just among older adults. As well, they reduce the focus on older age as a binary concept opposed to youth.  

However, there are limitations to the inclusive design approach. Older adults may have needs that are sufficiently unique that they are not easily accommodated within an inclusive design approach. Or in some cases, the needs of older adults may conflict with those of others. In such cases, it may be most appropriate to design policies or programs that are specifically tailored to older adults, as outlined below.

4.               Use of Mechanisms Focused on Older Adults                                 

It is relatively rare to find mechanisms for access to the law that focus specifically on the needs of older adults. For example, while mechanisms related to long-term care homes will mainly impact on older adults, who form the vast majority of residents of these homes, they also extend protection to the minority of residents who are younger adults with significant disabilities and complex medical needs.

Most frequently, access to the law mechanisms specifically directed to the needs of older adults are focused on elder abuse. For example, many police forces in Ontario have units specializing in elder abuse, and the majority of police services have a coordinator specializing in elder abuse to act as a resource and community liaison. As one instance, the Ottawa Police Service has an Elder Abuse Section, launched in January 2005. Its mandate is to investigate all allegations of abuse that fall within its definition of elder abuse, and to educate front-line workers and the general community about elder abuse.  

Similar programs have been developed in other parts of Canada and in other common-law jurisdictions such as Australia and the United States.[574] In the United States, the Administration on Aging administers the Prevention of Elder Abuse, Neglect and Exploitation Program, which provides federal leadership in strengthening elder justice strategic planning and direction for programs, activities and research related to elder abuse awareness and prevention. The Administration on Aging also operates the National Centre on Elder Abuse, as a national resource centre on the issue.[575]  

There are some general mechanisms, however. Ontario’s ACE, discussed above, is a notable example, providing legal advice and representation to older adults, as well as general advocacy and law reform activities, and serving as a centre for the development of knowledge and expertise in the area of the law and older adults.  

The Canadian Centre for Elder Law Studies (CCEL) was created by the British Columbia Law Institute. It is a national, non-profit body dedicated to studying legal issues that have a particular impact on older persons. As well as conducting its own legal research and law reform projects, it facilitates study and discussion of elder law issues through such venues as a regular Canadian conference on elder law, and hosting the World Study Group on elder law issues.  

The Australian government has funded the National Aged Care Advocacy Program, which aims to promote the rights of people receiving Australian government-funded aged care services through community-based organizations that provide older adults with information about rights and assistance with exercising those rights. These centres also work with the aged care industry to encourage the development of policies and practices that protect consumers. Those living in an Australian government-funded place in an aged-care home have access to free, confidential and independent advocacy services.  Australia also has an Aged Care Complaints Investigation Scheme, which can look into complaints by older persons regarding any aspect of their care, and can require service providers, where appropriate, to take remedial action. Concerns regarding Aged Care Complaints Investigation Schemes may be examined by an independent Aged Care Commissioner.[576] 

As is discussed at greater length below, Wales has recently established a statutory, independent Older People’s Commissioner. This is a watchdog agency, carrying out promotion, consultation, review, advocacy, education and investigative functions. The Commissioner can review and make recommendations about the adequacy and effectiveness of law for the protection of vulnerable older people and ask the Assembly Government to consider making changes where necessary. The Commissioner can also provide guidance on best practices to regulated service providers and review their policies and programs to ensure adequate safeguards for the rights of older persons. The Commissioner has the power to undertake investigations where there are systemic concerns at issue and the issue is not likely to be addressed in other ways.[577]  

As discussed at some length in Chapter IV of this Report, the use of older age-based programs and policies raises difficult issues. It is important not to overemphasize the idea of older persons as a homogenous group. Not all older adults are disadvantaged or at-risk, and these older adults may share the experience of barriers and challenges with other disadvantaged groups. Age, by itself, does not make older adults different or lesser. Programs based on an assumption of vulnerability among all older adults may lead to paternalism and undermine the autonomy and independence of older adults.  

At the same time, there are certainly subgroups of older adults who are disadvantaged or at-risk and whose circumstances require particular attention and accommodation. There may be circumstances where programs particularly targeting older adults are the most effective way to ensure the security and dignity of older adults. The programs developed by many police services focused on elder abuse recognize the unique needs and circumstances of older adults who experience abuse and the particular barriers they may face in asserting their rights, likely fall within this category.  

Therefore, taking into account the general issues raised in the discussion of age-based criteria in Chapter IV, advocacy or enforcement programs targeted to older persons must be individually assessed, to ensure that the use of age as a criterion for eligibility is the most effective means of addressing the needs or vulnerabilities that are targeted; that the program is based on current research rather than stereotypes; and that the program effectively addresses the needs identified. The following case example examines a targeted enforcement program focusing on elder abuse.

5.               Alternative Dispute Resolution Mechanisms

As noted earlier in this Chapter, there has been considerable interest expressed in the potential of alternative dispute resolution mechanisms such as mediation to benefit older adults in attempting to resolve issues arising in the context of ongoing relationships. Elder and guardianship mediation are growing and evolving fields.[579] 

However, concerns have also been noted about the imposition of mandatory mediation on older adults in some contexts. For example, under Ontario’s Residential Tenancies Act (RTA), care home residents who are facing eviction due to changing care needs must attend mandatory mediation, where the parties may contract out of their rights under the Act.[580]  While the provision may have been intended to benefit retirement home residents by mandating a less formal, adversarial and time-consuming process, given the power imbalances between the retirement home operator and the resident who is facing eviction, who may have significant health limitations, who may not be represented and who may not be fully informed of his or her rights, concerns have been expressed about the effect of this provision on older adults.[581] 

One form of alternative dispute resolution is elder mediation. Elder mediation is a voluntary, non-adversarial dispute resolution process where one party to the dispute is an older adult. The process is specifically designed in order to facilitate the dynamics of older adults’ conflicts, and to generate solutions which respect both the parties’ ongoing relationship, and protect the older adult’s interests. Elder mediators typically have knowledge of aging and the aging process, and are therefore ideally situated to create processes which enhance older adults’ capacity to deal with conflict.[582] 

Certain elder mediation programs mediate the diverse range of disputes which older adults face.[583] Other elder mediation programs specialize in certain disputes which older adults face more often than the general population. For example, some elder mediation programs mediate conflicts in caregiving arrangements.[584]  

Despite its potential, resolving conflicts through elder mediation can create risks for older adults. Older adults are often dependent upon the other party to the conflict, which will distort the power dynamic between the parties. If left unaddressed, the imbalance of power may mean that the older adult is not able to freely express his or her opinions, and that consent to any agreement may not be freely given.[585] Older adults are also more likely to have age-related illnesses which affect their ability to participate meaningfully in the discussions which directly affect them.[586] An elder mediation’s potential to create resolutions which respect the older adult’s autonomy and safety will then depend upon the elder mediator’s training, skills and judgment throughout the process to ensure the older adult’s free and meaningful participation.

Further, elder mediation is not appropriate in all circumstances, or for all issues. For example, there are special issues raised where the decisional capacities of a party to mediation may be affected by a disability. These issues are beyond the scope of this brief discussion, but must be carefully addressed by an elder mediation program.[587]

Preliminary experiences with elder mediation show this process has, in the appropriate circumstances, tremendous potential to increase access to justice for older adults, and to increase communities’ capacities to deal with conflicts involving older adults. When successfully established in a community, elder mediation programs can provide a physically and emotionally accessible alternative for those older adults who face barriers in existing institutionalized dispute resolution processes. Preliminary experiences with the process have shown outcomes which enable older adults to recognize and respond to conflict, and generate solutions which maximize older adults’ dignity, independence and autonomy.[588] 

The British Columbia Law Institute has recently completed a comprehensive report on elder and guardianship mediation in that province, examining the current legal landscape, the nature of elder mediation and the issues associated with it, and promising projects in the field.[589]  In Ontario, there are currently very few elder mediation services, and little research exists on these programs’ operation. Further research is necessary in order to assess the feasibility of introducing elder mediation programs across the province.[590]

6.               Advocacy Mechanisms

Advocacy mechanisms can provide an effective supplement to complaint-based enforcement mechanisms. Advocacy has been defined as “an activity which involves taking up the case of an individual or group of individuals as speaking on their behalf to ensure that their rights are respected and their needs are met.”[603] Advocacy may be individual or systemic; instructed or non-instructed; legal or social. Individual models of advocacy include, for example, Ontario’s Psychiatric Patient Advocacy Office. Systemic advocacy includes some aspects of the Ombudsman function, or potentially some aspects of the mandate of the reformed OHRC. Individual and systemic advocacy perform different functions in promoting the protection of rights, and both can make significant contributions to effective access to the law for older adults.  

The 1987 Report of the Review of Advocacy for Vulnerable Adults concluded that 

[t]he concept of “vulnerability” can create a need for advocacy as the vulnerable are often dependent on others which will leave them susceptible to abuse, neglect or abandonment.[604]

Vulnerable adults, in this 1987 Report, included those whose physical, emotional or cognitive impairments made them dependent on others for care, impaired their ability to communicate, led to stigma and undervaluation by others, or resulted in institutionalization. The 1987 Report concluded that advocacy services, properly designed, could promote respect for the rights and dignity of vulnerable adults; ensure that rights are understood, recognized and protected; assist vulnerable adults to achieve self-determination; enhance autonomy and independence; and protect vulnerable adults from financial, physical and psychological abuse.[605] 

The OBA, in its submission to the LCO, highlighted the potential of advocacy systems to benefit older persons, so long as they appropriately balance needs for efficacy and accessibility with protection of review rights and due process.[606] 

In ACE’s focus groups with residents of long-term care homes and their families, a consistent theme was the need for third-party advocacy: 

ACE consistently heard that some form of third-party advocacy where advocates went directly to homes to meet with residents would be beneficial. Many residents stated that they were afraid to voice their concerns for fear of retribution or being labeled a troublemaker. A number of residents complained that their concerns were ignored until a family member became involved. Several family members explained that they were only able to notice and prevent problems if they were at the home on a daily or regular basis.[607] 

 ACE has recommended advocacy for long-term care residents, both on an individual and a systemic basis, through the establishment of a Health Care Commission, and the expansion of the jurisdiction of the Ontario Ombudsman’s Office.[608] The Health Care Commission would be an independent office of the Legislature which would be responsible for the oversight of health care advocates working in hospitals, long-term care and retirement homes. Based on the information provided by individual advocates, this Health Care Commission could undertaken systemic as well as individual advocacy.[609] While such a Health Care Commission would be of significant benefit to older adults, its mandate would be inclusive of all ages, and be defined by issues rather than age.   

ACE does not support the creation of a specialized Seniors’ Advocate. While some jurisdictions, such as Wales and Australia, have limited their services to older adults, we do not believe this is the correct approach. We discourage a framework based on the perception that older adults lack capacity and need protection. Simply stated, older adults are people. ACE believes that all people navigating the health care system could benefit from the services of an advocate, regardless of age. We want to move away from ageist stereotyping towards a rights-based approach. Moreover, as there is no generally accepted definition of an older person, younger individuals residing in long-term are homes or in hospital would be precluded from obtaining assistance from a Seniors’ Advocate.[610] 

The Older People’s Commissioner for Wales described in the case example below provides an interesting example of a targeted advocacy mechanism for older adults.

7.               Oversight and Monitoring Mechanisms

Implementation and enforcement systems affecting disadvantaged or at-risk older adults would benefit from the consistent use of mechanisms to ensure accountability, transparency and effectiveness. Because there is a lack of monitoring and oversight for many enforcement systems disproportionately affecting older adults, it is impossible to know the extent to which older adults have effective access to those laws, or are subject to abuses and violations of their rights.  

Public reporting requirements can be effective in inducing institutions to comply with the law, as well as making it easier to identify problems and abuses without the necessity for individual complaints. For example, ACE notes with respect to public reporting requirements for long-term care homes that 

[t]he available information is not up-to-date or organized in a manner which is easy to understand. It also provides insufficient details about the actual infractions as it merely states which general criteria or standard was unmet.  Posting the actual inspection report (minus any identifying information about residents or staff) would be beneficial for several reasons.  First, it would be an impetus for homes to improve as the public would have greater access to detailed information and be less inclined to choose homes with a higher number of complaints and unmet standards. Second, it would benefit some homes by showing that their infractions were administrative in nature and not reflective of poor resident care.  The Ministry should look to other countries (e.g., Wales and Australia) which post significantly more comprehensive reports as examples.[617]

Oversight mechanisms can also include direct government oversight through licensing or audit mechanisms. The new retirement homes regulatory mechanism, as described earlier in this Chapter, includes a licensing requirement.