I. Introduction2017-03-03T18:30:48+00:00
This paper suggests an approach to evaluating legislation through an anti-ageist “lens,” focusing on two areas that may be subject to legislation and that will tend to disproportionately affect older adults: substitute decision making and elder abuse and exploitation. The evaluative lens used asks the following general questions:

· Does the legislation reflect negative ageist stereotypes and/or paternalistic attitudes (explicitly or implicitly)? Is the policy or legislation based on the unarticulated premise that with age comes increasing incompetence and decreasing intellectual capacity?

· Are there sufficient mechanisms provided for by the legislation to prevent or protect against the legislation being implemented in an ageist manner (including the acting-out of individual ageism, given the prevalence of ageist attitudes)?

· Does the legislation respond appropriately to the real needs of older persons as a group (understanding that older adults are extremely diverse), recognising that older adults generally are situated differently from younger people and have different needs?

The principle of human dignity runs through all aspects of the evaluative lens. Recognising and giving effect to dignity requires both:

· respect for personal autonomy; and

· recognition of society’s obligation to provide support and assistance where needed, and effective mechanisms for carrying out that obligation.

These requirements may be coincidental, or may require a balance, depending on the specific situation or context. Both are essential, however, and neither can be entirely subsumed by the other. Legislation in Ontario, in the case of substitute decision making, and non-legislative approaches, in the case of elder abuse and exploitation, is discussed and evaluated with reference to the questions given above. Legislation across Canada dealing with substitute decision making and elder abuse and exploitation is then surveyed, and evaluated with reference to these questions. “Benchmark” legislation is then identified, and the Ontario approach is discussed in terms of its relationship to this benchmark.

The question of implementation, or how the law is actually carried out in practice, is extremely important in this context, and a fully developed anti-ageist evaluation must include an analysis of implementation. Social de-valuation of older adult’s autonomy, internalised by family members and health professionals, increases the importance of having structures in place to actively counter its effect. Older adults are, together with psychiatric patients (a group which may include older adults), disproportionately subject to the Substitute Decisions Act and the Health Care Consent Act; older adults are more likely to be subject to care facility admission. A legal scheme (including mechanisms directed at implementation) that is sensitive to the real needs and situations of older adults will actively promote decision making rights.

A thorough review of implementation and the empirical research it would require is beyond the scope of this paper, however. Responses received from the Advocacy Centre for the Elderly and Ontario Bar Association during the consultation carried out for the Law Commission of Ontario project include several insightful comments regarding implementation of legislation in Ontario, and those are referred to here.

A. What is ageism?

Many of the most damaging or negative effects of the ageing process are a consequence of society’s negative response to the ageing process. As the Supreme Court of Canada explained in Granovsky v. Canada (Minister of Employment and Immigration), considering section 15 in the context of disability, “[e]xclusion and marginalization are generally not created by the individual with disabilities but are created by the economic and social environment and, unfortunately, by the state itself.” [1] The court described the “concept” of disability as multilayered, accommodating within it actual physical and mental limitations; “true” functional limitations (where physical and mental limitations, which are not met through assistance or devices such as eyeglasses, give rise to individual functional limitations); and the “social handicap” resulting from the “exaggerated or unjustified consequences to whatever [true] functional limitations in fact exist,” “the problematic response of society to that condition.”[2] The Granovsky analysis, applied to the “concept” of age and ageing, unpacks the social idea of age (in and of itself) as limitation in the context of modern society, where the great majority of actual limitations associated with mere ageing have been or are capable of being met and do not, or need not, manifest as “true” functional disabilities.

Society’s response to ageing includes both negative stereotypes about ageing and older adults (older adults are weak and unintelligent) and attitudes that dis-empower and infantalise older adults as objects to be “done to” rather than actors in control of their own lives. (older adults can’t know what’s best for them and other more competent persons must be entrusted with those decisions). Negative and paternalistic attitudes towards older persons include the following: [3]

Older adults are inflexible, resistant to change and have difficulty learning new things;
Older persons are chronically ill, dependent and no longer make a contribution to society;
Older persons are a burden on their families and loves ones, as well as on society at large;
Older persons are depressed, isolated and waiting to die;
Older persons have declining capacity, are incapable of making responsible decisions and must be protected from themselves

The Ontario Bar Association described “ageism and negative stereotypes about the characteristics, capacities and contributions of older adults [as] pervasive and harmful… We need to make the same effort to eliminate age discrimination as we have made to promote multiculturalism, and to eliminate homophobia.”[4]

Ageist stereotypes and attitudes may be expressed on the personal level, influencing the way in which individuals relate to one another. Ageism can also find expression in social norms, rules and institutions, including the law. Institutional ageism can be overt and explicitly discriminatory, as with mandatory retirement policies (see discussion below under “Canadian Charter of Rights and Freedoms”). Implicit institutional ageism underlies the “tendency to structure society based on an assumption that everyone is young, thereby failing to respond appropriately to the real needs of older persons [by failing to] design systems and structures that are inclusive of older persons.”[5] One consequence of institutional ageism is the invisibility of older adults in the law generally and in the law reform process.

Identification of the effects of implicit institutional ageism is consistent with the substantive (as opposed to formal) equality rights guaranteed by section 15 of the Canadian Charter of Rights and Freedoms;[6] identical treatment can cause unequal outcomes where significant personal differences exist but are not recognised and provided for. Where a blind person cannot succeed at a written test, for example, or a person in a wheelchair cannot access a library, “the discrimination does not lie in the attribution of untrue characteristics to the disabled individual. The blind person cannot see and the person in a wheelchair needs a ramp.”[7] Substantive inequality arises from a “construction of a society based solely on “mainstream” attributes.” [8]

It is a well-established principle of human rights law that systemic discrimination exists where a law, policy or program that is neutral on its face with respect to a prohibited ground of discrimination, in this case age, disproportionately impacts a protected group.[9] Systemic discrimination may therefore be shown if the implementation of the legislation discussed below, or the effect of any specific provisions, has a disproportionately negative impact on older adults.

B. Developing an anti-ageist approach within the law

Developing an anti-ageist approach within the law requires developing and applying an “age-based lens” to evaluate the impact of the law on older adults, whether negative differential impact is intentional or not.[10] An age-based lens includes the following questions:

· Does the legislation include or refer to, explicitly or implicitly, ageist stereotypes and/or paternalistic attitudes?

· Are there sufficient mechanisms provided for by the legislation to prevent or protect against the legislation being implemented in an ageist manner (including the acting-out of individual ageism, given the prevalence of ageist attitudes)?

· Does the legislation respond appropriately to the real needs of older persons as a group (understanding that older adults are extremely diverse), recognising that older adults generally are situated differently from younger people and have different needs?

Particular subject areas will also include additional, subject-specific questions.

While each of these points is essential to developing an anti-ageist approach within law, there may be a tension between recognising and responding to characteristics associated with older adults and avoiding negative stereotypes and attitudes. Not recognising difference is a form of formal equality that apparently negates ageism (“older adults are no different from, and therefore just as strong, capable, and valuable, as younger persons”). If significant differences do exist, however, formal equality is not realistic and creates unequal impact (and the identification of value with being “just like” younger people itself internalizes ageist attitudes).

The key to addressing that tension is the underlying characterisation of factors associated with the ageing process and with older adults as a group. The belief that ageing-related differences are necessarily negative is itself an expression of ageism; that any departure from the youthful paradigm is insulting, necessarily harmful and stigmatizing. Indeed, difference has often been interpreted in negative stereotypical terms. An age-based analysis must be careful to avoid replicating negative ageist attitudes.

This report looks at two areas of law that are of particular relevance to older adults – substitute decision making and elder abuse and exploitation – through an age-based lens. One of these, substitute decision-making, does not apply specifically to older adults as such but will disproportionately involve and impact older adults. Applying an age-based lens in this context means asking whether this age-neutral legislation takes account of the real differences and needs associated with ageing. Age responsive substitute decision-making legislation must include mechanisms to prevent or guard against ageism in implementation, for example, as the individuals giving effect to that legislation may be affected by ageism on the individual or the social level.

Unlike substitute decision making, elder abuse and exploitation is explicitly age-specific as an area of law or legal subject. Identification of elder abuse and exploitation as a distinct social problem is predicated on the understanding that older adults as a group are especially vulnerable to these kinds of harm and/or face special obstacles in seeking redress. Legislation that deals with elder abuse and exploitation in Canada, however, is not age specific: the Criminal Code, adult protection legislation, and domestic violence legislation may all provide a response to types of elder abuse and exploitation. Very few provisions within this legislation make reference to age. An age-based analysis of elder abuse legislation will therefore need to consider whether the overall approach within the province (including all applicable legislation) is adequate and appropriate, taking into account and responding to the needs of older adults without replicating ageist stereotypes and attitudes.

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