Step 3: Does the Purpose of the Law Respect and Fulfil the Principles?2017-03-03T18:30:47+00:00

Laws generally begin with an issue, large or small, that is perceived to be of concern and that needs to be addressed. The purpose of a law may be explicitly identified, for example in a preamble, or may be implicit in the provisions. While in practice, a law may or may not achieve the goals set out for it, the purpose of the law and the assumptions that underlie that purpose (or purposes) will shape the general approach of the law. This section sets out considerations for evaluating the purpose of a law against the principles.

  

Applying the Principles to Step 3 

Note: “Law” here refers to law, policy and practice, as appropriate. 

The overall goal or purpose of a law will of course profoundly shape every aspect of that law, and will itself be shaped by a set of underlying assumptions or values. In the case of laws that directly target older adults or affect mostly older adults, many of those assumptions and values will be directly associated with older age, while for laws of general application, they will be less directly connected with age, but still influential in terms of the impact of the law on older adults. Those assumptions and values may be positive for older persons, or they may be influenced by ageist or paternalistic attitudes and assumptions. For this reason, it is very important to carefully evaluate the purpose(s) of a law, and the underlying attitudes against the principles. 

As at all stages of the evaluation, most commonly, multiple principles will be engaged by any one law, particularly since the principles are interdependent. Frequently, the principles will support each other; for example, initiatives that increase the inclusion and participation of older persons will generally also thereby promote respect for their dignity and worth. However, sometimes two or more of the principles may be in tension with each other in a particular case. In such cases, careful thought must be given to analyzing and responding to this tension. 

Because older persons are often characterized as passive and “vulnerable”, it is particularly common to see the principle of the autonomy of older persons subordinated to the principle  of security. It is therefore particularly important to carefully scrutinize laws that are framed in this way to ensure that ageist assumptions are not leading to an inappropriate sacrifice of autonomy for older persons. The analysis of the relationships between the principles may be relevant at any of the steps in the evaluation process. 

  • For information on identifying ageism and paternalism in the law, see the Final Report, Chapter IV.G; for information on relationships between principles, see Chapter III.B.5.

 

QUESTIONS FOR CONSIDERATION IN APPLYING STEP 3

  1. What assumptions about older persons underlie the purpose of the law? Does the law recognize older adults as persons of worth, value their contributions, and treat them as of equal value with other members of society?
  2. Does the purpose of the law take into account the actual needs and circumstances of older adults, and respond appropriately?
  3. Does the purpose of the law take into account variances among older adults, whether due to their life courses, differences in their abilities or health status, or intersecting aspects of their identity such as gender, racialization, sexual orientation, Aboriginal identity, age, citizenship, socio-economic status, marital or family status, or other aspects of identity?
  4. Does the purpose of the law take into account the variable nature of aging, and the multiple transitions that older persons experience throughout the aging process?
  5. Does the purpose of the law enhance the ability of older adults to be meaningfully involved in their communities, be civically engaged, and to be heard on issues that affect them?
  6. Does the purpose of the law address potential abuse, exploitation, mistreatment or victimization of older adults?
  7. Does the purpose of the law foster the ability of older adults to make choices for themselves, including by providing appropriate supports?
  8. Does the purpose of the law enhance the economic or personal independence of older persons, and provide support for such independence as required, for example through access to health, legal or social supports?
  9. Does the purpose of the law recognize older persons as members of the broader society, and support their ability to take on the responsibilities associated with such membership?
  10. Might this law affect the attainment of the principles for those who are not yet older adults when they reach that stage of life?
  11. How do the principles in play relate to each other? Do they support each other or are there tensions between any of these considerations, so that satisfying one may threaten to undermine the realization of another? If so, have you considered:
    a.     Whether there are broader contextual issues (such as a lack of appropriate resources) causing the tensions between principles, and if so, whether these issues can be addressed to resolve the tension?
    b.     Whether there are approaches to the issue that will permit at least partial achievement of both competing principles?
    c.      Which of the potential approaches will best advance substantive equality for older adults?
    d.     Whether older adults have been consulted in determining how to resolve the tensions?

 

APPLYING THE FRAMEWORK: EXAMPLES OF THE RELATIONSHIP BETWEEN PRINCIPLES AND THE PURPOSE OF THE LAW

Embodying Principles in the Law: The Long-Term Care Homes Act, 2007

The LTCHAhas at its core a set of principles that are in harmony with this Framework. The fundamental principle of the Act is that a long-term care home is a home and should be a place where residents “may live with dignity and in security, safety and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met”. This fundamental principle is reflected throughout the statute. For example, it includes a “Residents’ Bill of Rights” which explicitly recognizes that older adults who live in long-term care homes are individuals who have rights that must be respected and promoted, including:

  • the right to be treated with courtesy and respect and in a way that fully recognizes the resident’s individuality and respects the resident’s dignity;
  • the right to exercise the rights of a citizen;
  • the right to have his or her participation in decision-making respected;
  • the right to receive care and assistance towards independence based on a restorative care philosophy to maximize independence to the greatest extent possible;
  • the right to form friendships and relationships and to participate in the life of the long-term care home;
  • the right to have his or her lifestyle and choices respected;
  • and many others. 

As another example of the ways in which the Act reflects the principles, it requires that every long-term care home ensure that a Residents’ Council, made up of residents of that home, is established. The Councils have an advisory role: they can provide advice to residents regarding their rights and obligations under the Act, attempt to resolve disputes between residents and the home, advise the licencee regarding any concerns about the operation of the home, provide recommendations for improvements to the home or to the quality of care, and may report to the government concerns or recommendations regarding the home. These Councils embody the principles of participation and inclusion, and help ensure that long-term care homes fulfil the other principles. For example, their ability to address concerns may improve the security of residents, and the recognition that residents have valuable perspectives increases respect for their dignity and worth. 

  • See Long-Term Care Homes Act, 2007, S.O. 2007, c. 8, ss.1, 3, 56.

 

Tensions Between Principles: Adult Protection Laws

Some provinces have put in place comprehensive adult protection legislation. This legislation aims to address the risk of abuse and neglect for older adults, and creates institutional structures to address instances of abuse and neglect. It generally covers physical, sexual, emotional and financial abuse, as well as self-neglect. To achieve this objective, this type of legislation provides for intervention by third parties. The primary objective of adult protection legislation is to connect individuals with necessary social and medical services.  

Adult protection legislation has been, and remains controversial. A key element in the negative response to current mandatory reporting legislation regimes in the Atlantic provinces is the very broad scope of that legislation, which permits unilateral and potentially heavy-handed intervention in the lives of older adults who in other contexts would be considered quite capable of making their own decisions. There are some adults who, due to the nature of their disabilities, are not able to speak or act for themselves or to make decisions to protect their own safety and security, and who may need others to assist them to take action or to simply take action for them. The scope of adult protection legislation in some provinces goes far beyond this, however, and in doing so, permits paternalistic decision-making, potentially influenced by ageist stereotypes or attitudes, that significantly undermines the autonomy of older adults. These laws, then, may be understood as exemplars of the common tension in elder law between the principles of security and independence and autonomy.

  • For information on tensions between principles and adult protection laws, see the Final Report, Chapter III.B.5.

 

Previous Next
First Page Last Page
Table of Contents