As a first step in undertaking an evaluation of a particular law, it is helpful to begin by understanding the context in which that law will operate, and analyzing how that context may relate to the principles. This includes the general social area which the law addresses, as well as the existing laws and policies that interact with the law that is proposed or under review. This section considers how the context of the law may situate it in relation to the principles.
Applying the Principles to Step 1
Note: “Law” here refers to law, policy and practice, as appropriate.
As a first step in the evaluation of a law, it is helpful to consider the specific social area in which the law operates, such as employment, housing, education, family relationships or caregiving, for example. Different social areas will have different relationships to and effects on the attainment of the principles. For example, the attainment of security and of participation and inclusion will be significantly affected by laws related to income security. Laws related to decision-making will impact heavily on the independence and autonomy of older persons with cognitive disabilities.
Some contexts may involve particular challenges or constraints for the attainment of the principles. For example, residence in a long-term care home by its very nature constrains the ability of residents to participate in and be included by the broader community. Such particular challenges to the principles should be taken into account when designing the law in question.
Existing laws at various levels of government are an important part of the context to be considered, and careful attention should be paid to how the proposed law will affect the principles in combination with existing laws. Law in one area may affect realization of the principles in quite another area of the law. For example, law related to income security will affect access to housing. Lack of supports and protections for informal caregivers will have significant effects on all aspects of life for those older adults who require supports, including health, housing and community participation.
For information on relating the principles to the contexts of the law, see the Final Report, Chapter IV
QUESTIONS FOR CONSIDERATION IN APPLYING STEP 1
What area(s) of life does the law potentially affect? What are the particular contexts and concerns of older adults in this area of life?
Which principles seem relevant for this context?
Are there aspects of this context that tend to constrain the implementation of any of the principles? If so, are there strategies that can be employed to address this?
How might law in this one particular context affect other areas, and the attainment of the principles in those areas?
APPLYING THE FRAMEWORK: EXAMPLES OF RELATING THE PRINCIPLES TO THE CONTEXT OF THE LAW
Access to Housing by Older Adults and the Principles
Like everyone, older persons want to have access to housing that meets their needs. We all need housing that is safe, affordable and enables us to be part of our community. The International Covenant on Economic, Social and Cultural Rights, which Canada has ratified, recognizes adequate housing as a fundamental right, although no laws to this effect have been enacted in Canada. The IPOP state that “older persons should be able to live in environments that are safe and adaptable to personal preferences and changing capacities”. While most older adults are homeowners, as individuals age, their housing needs may change. Loss of a spouse or of the ability to drive, or the onset of impairments may make change of residence necessary. Older adults generally strongly prefer to “age in place”, so as to retain the benefits of community supports that may have been built up over many years; however, they may face many barriers to doing so, including lack of accessible housing options, limited availability of home care supports, restricted access to mainstream or specialized public transportation, housing affordability, and discrimination against people who are perceived to be likely to develop disabilities and to need accommodations related to their disabilities.
A primary concern of older adults in the context of housing is participation and inclusion. Lack of supports or adequate housing in their home communities can jeopardize vital supports and connections that have been built up over many years. The principle of diversity and individuality points to the importance of law recognizing the particular needs of older adults in the housing context, including the need for community-based supports and accessible options. Lack of supports may pressure older adults into transitioning into more restrictive environments, such as long-term care homes, leading to a reduction in independence and autonomy. As well, lack of access to adequate housing may jeopardize the attainment of the principles in other areas of life. For example, the federal government has recognized housing as central to reducing poverty and exclusion.
See LCO Commissioned Research Paper, C. Spencer “Ageism and the Law: Emerging Concepts and Practices in Housing and Health” (2009).
First Nations Older Adults with Disabilities and Access to Supports
The onset of disability and the resultant need for access to supports in the community or long-term care poses challenges for all affected older adults. First Nations older adults, however, face significant additional challenges. The lower than average socio-economic status of First Nations communities leads to higher than average rates of disability and significantly reduced lifespans, so that the pressures surrounding disability and aging, acute across all groups, are particularly severe for these communities. In some First Nations communities, inadequate and overcrowded housing, together with a lack of community services, makes it impossible for older adults who have developed significant health or ability limitations to remain in their home communities. However, a move to a major centre where long-term care is available may mean a very significant dislocation, separating the resident not only from family and community, but also from culture and in some cases language. In this way, the principle of participation and inclusion is engaged, although the particular cultural context of First Nations persons must be taken into account in interpreting and applying it. As well, because many First Nations individuals who are now older will have experienced the residential school system, re-institutionalization at the end of the life course may have a profound negative emotional and psychological impact. That is, the principle of security may be in jeopardy due to the shortage of community-based and culturally appropriate options. Finally, historically and in most contemporary Aboriginal cultures, older members are accorded great respect and Elders play a central role in family, community and spiritual life. When First Nations older adults leave their home communities for geographically distant long-term care institutions, it is a significant loss for the community as well as the individual older person, raising issues related to the principle of membership in the broader society.
See LCO, A Framework for the Law as It Affects Persons with Disabilities: Final Report .