No law will operate perfectly: errors and problems will inevitably arise, and mechanisms must be put in place to identify and address these. Therefore, older adults require meaningful access to the law. Some laws rely on complaint mechanisms of various types to identify and resolve issues, others use proactive mechanisms like audits or institutional advocates for this purpose, and others use a combination of mechanisms. This section applies the principles to complaint and enforcement mechanisms.
Applying the Principles to Step 6
Note: “Law” here refers to law, policy and practice, as appropriate.
Meaningful complaint and enforcement mechanisms are important, not only for addressing individual issues that may arise in the implementation of a law but also for identifying and addressing systemic problems with a law or its implementation. Older adults may face a range of barriers in accessing the law, including a lack of clear rights and remedies, complex or inaccessible systems that fail to take into account their needs and circumstances, power imbalances, a reluctance to complain and a lack of information and advocacy supports.
The principles of respecting dignity and worth and of security mean that there must be meaningful mechanisms to ensure that older persons are able to raise concerns about mistreatment, exploitation or abuse, that there is meaningful redress when such issues arise, and that they are not subject to retaliation for doing so. Responding to diversity requires that complaint and enforcement mechanisms take into account the diverse needs and circumstances of older adults and ensure that all aspects of complaint and enforcement mechanisms are accessible for these individuals. This includes ensuring that complaint mechanisms are sufficiently simple and transparent for older adults to navigate – or if not, that they have the advocacy supports necessary to do so. To ensure autonomy and independence, older persons must have access to the information that they need to understand and enforce their rights. The principle of promoting inclusion and participation requires that complaint mechanisms facilitate the ability of older persons to be actively involved in claiming their rights, including provision of the supports necessary to empower them to do so.
For information on access to the law and older adults, see the Final Report, Chapter V.C.
QUESTIONS FOR CONSIDERATION IN APPLYING STEP 6
Does the law include access to a complaint and enforcement mechanism that clearly and meaningfully identifies, addresses and remedies both individual and systemic violations of the law, including for those individuals who are particularly disadvantaged or at heightened risk?
Are the complaint and enforcement mechanisms designed in a way that addresses power imbalances and prevents potential retaliation against those who raise issues?
Are the complaint and enforcement mechanisms accessible for older adults, including respecting the requirements of the Code and the Accessibility for Ontarians with Disabilities Act, providing appropriate accommodations, addressing barriers related to low-income, and recognizing intersecting identities?
Are the complaint and enforcement mechanisms navigable for older adults, whether through ensuring the mechanisms are simple and transparent, or by providing navigational assistance?
Are older persons provided with meaningful and accessible information about their rights and how to enforce them?
Are supports available to older persons to empower them to understand their rights and advocate for themselves?
APPLYING THE FRAMEWORK: EXAMPLES OF THE RELATIONSHIP OF THE PRINCIPLES TO COMPLAINT AND ENFORCEMENT MECHANISMS
Long-Term Care Homes and Barriers to Accessing the Law
Long-term care homes provide crucial supports to individuals with significant, complex needs, and so may play a vital role in promoting the principles for their residents. However, residents may experience barriers to asserting their rights. Residents are generally living with significant impairments or health issues, which may make it difficult for them to realize when their rights have been violated and to pursue redress. There are significant power imbalances between residents and those who are providing their care: residents may be extremely vulnerable to reprisal. The segregated nature of the living environment makes it more difficult to access information and resources. Therefore, rights enforcement mechanisms that rely entirely on individual complaints may be of only limited utility in preventing violation of the rights of residents and ensuring that the principles are respected and fulfilled.
Therefore, persons living in these types of settings are at particular risk of having their rights violated, or of experiencing a violation without a realistic possibility of redress. This raises issues related to the principle of security. The principle of responding to diversity requires the law to take into account the needs of this particular group when designing complaint and enforcement mechanisms. Additional outreach, supports or enforcement mechanisms may be required to ensure that the dignity and worth of persons living in these settings are respected.
For information on access to the law and older adults in long-term care homes, see LCO Commissioned Research Paper, Advocacy Centre for the Elderly, “Congregate Living and the Law as It Affects Older Adults” (2009)
Community Care Supports and Complaint Mechanisms
The provision of community care supports for those individuals who are frail or have disabilities, but who wish to remain in their own homes are central to the principles of independence, security and participation and inclusion for these individuals. These supports are regulated by the Home Care and Community Services Act(HCCSA). Agencies providing services are required to develop complaint processes and to respond to complaints regarding service quality within 60 days. Because the Act has no specific requirements for complaints processes, they vary from agency to agency, but essentially, where an individual has concerns about the quality of services provided, these complaints must be brought to the attention of the agency providing services. Responses to complaints need not be in writing, and for some issues there is no right of appeal to a third party. Many concerns have been raised about the effectiveness of this complaint process, especially since those using home care services are likely to be frail or in poor health and therefore not in a strong position to navigate unclear processes or to strongly advocate for their rights where there is a potential for reprisal.
For information on the principles and access to community care, see the Final Report, Chapter VI.