PART I: PRINCIPLES FOR THE LAW AS IT AFFECTS OLDER ADULTS2017-03-03T18:30:48+00:00

This part of the Framework sets out six principles for the law as it affects older adults. These principles identify the goals which laws, policies and practices should aim to achieve. They aim to counteract common stereotypes and negative assumptions about older adults, reaffirm the status of older persons as equal members of society and bearers of both rights and responsibilities, and encourage government and other actors to take positive steps to secure the wellbeing of older adults. This section also sets out some considerations for the application of the principles. 

In order to counteract negative stereotypes and assumptions about older adults, reaffirm the status of older persons as equal members of society and bearers of both rights and responsibilities, and encourage government to take positive steps to secure the wellbeing of older adults, this framework centres on a set of principles for the law as it affects older adults. 

Each of the six principles contributes to an overarching goal of promoting substantive equality for older adults. The concept of equality is central to both the Charter of Rights and Freedoms and the Ontario Human Rights Code, The Supreme Court has recognized that governments may have a positive duty to promote the equality of disadvantaged groups. Observance of the principles ought to move law and policy in the direction of advancing substantive equality, and interpretation of the principles must be informed by the concept of substantive equality. Substantive equality is about more than simple non-discrimination, and includes values of dignity and worth, the opportunity to participate, and the necessity of taking needs into account and developing society and its structures and organizations in a way that does not leave marginalized groups outside mainstream society

There is no hierarchy among the principles, and the principles must be understood in relationship with each other. Although identified separately, the principles may reinforce each other or may be in tension with one another as they apply to concrete situations, an issue that is discussed in Section B. 

 

A.  The Six Principles 

  1. Respect for Dignity and Worth: This principle recognizes the inherent, equal and inalienable worth of every individual, including every older adult. All members of the human family are full persons, unique and irreplaceable, with capacity for growth and expression. It therefore includes the right to be valued, respected and considered: to have both one’s contributions and one’s needs recognized: and to be treated as an individual. It includes a right to be treated equally and without discrimination.
  2. Promotion of Independence and Autonomy: This principle recognizes the importance for older persons of the ability to both make choices and do as much for themselves as possible. It also recognizes the necessity for measures to enhance capacity to make choices and to do for oneself, including the provision of appropriate supports, so that older adults are able to exercise agency. Given entrenched paternalism and stereotypes about older persons, the presumption of ability is essential to the realization of this principle.
  3. Enhancement of Participation and Inclusion: This principle promotes the opportunity to be actively engaged in and integrated in one’s community, and to have a meaningful role in affairs. Participation is enabled through inclusive design of laws, programs, policies and services, as well as efforts to enhance the participation of those older adults who have experienced especial marginalization. An important aspect of participation is the right of older adults to be meaningfully consulted on issues that affect them, whether at the individual or the group level.
  4. Recognition of the Importance of Security: This principle recognizes the importance of physical, psychological, financial and social security, including the right to be free from abuse or exploitation, and the right to access to basic supports in terms of health, legal and social services in order to promote the achievement and maintenance of the principles of dignity and respect, independence and autonomy, and participation and inclusion.
  5. Recognition of Diversity and Individuality: This principle recognizes that older adults are individuals first. They are not a homogenous group, and their needs and circumstances may be affected by a wide range of factors. Older adults may also experience discrimination or exclusion based on their gender, racialization, Aboriginal immigration or citizenship status, sexual orientation, creed, geographic location, place of residence, or other aspects of their identities, and the law must take into account the impact of this diversity.
  6. Understanding Membership in the Broader Community: This principle recognizes that older adults are part of a broader community in which they have reciprocal rights and obligations. People of generations past, present and future are bound together, and it is the responsibility of all to promote mutual cooperation and understanding between generations and to work towards a society that is inclusive for all ages.

 

Example: Principle of Participation

Residents Councils under the Long Term Care Homes Act

The Long Term Care Homes Act, 2007 requires that every long-term care home shall have a Residents Council made up of residents of that home and that the home shall provide an assistant for that Council. 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 licensee 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.

 
 B.  Considerations for Application of the Principles

Progressive Realization: Of course, even where one aspires to implement these principles to the fullest extent possible, there may be constraints in doing so, such as resource limitations or competing needs or policy priorities. In such circumstances, a progressive implementation approach to the principles should be undertaken, such that the principles are realized to the greatest extent possible at the current time, and concrete steps for future improvements are identified and planned for.  

Inclusive Design: While in some cases it may be necessary or most appropriate to design specific laws, practices, programs or policies to meet the needs of older adults, in most cases an inclusive design approach that incorporates older adults into the overall design of the law will be the most effective approach.  Younger as well as older adults will benefit from a focus on dignity, autonomy, inclusion, security and diversity in the design of laws. Many, if not most of the measures required to fulfil the principles and to make the law more fair, accessible and just for older adults will also make the law more fair, accessible and just for others. Designing laws, policies and programs to include older adults can make the law more effective overall. 

Protect, Respect, Fulfil: In the realm of international human rights law, the framework of “protect, respect, fulfil” is used to analyze and promote the implementation of human rights obligations. In this analysis, states must address their human rights obligations in three ways: 

  1. The obligation to respect – States parties must refrain from interfering with the enjoyment of rights. For example, States must not exclude older persons from access to employment or education on the basis of their age.
  2. The obligation to protect – States parties must prevent violations of these rights by third parties. For example, States must require private employers to refrain from discriminating against older persons in employment because of age.
  3. The obligation to fulfil– States parties must take appropriate legislative, administrative, budgetary, judicial and other actions towards the full realization of these rights. For example, States might create special programs to provide supports for older workers who face particular barriers to re-employment after layoffs. 

This approach can be useful in analyzing and promoting the realization of the principles in the law as it affects older adults, or indeed any group. As part of progressive realization of the principles, government might first take steps to ensure that no laws interfere with the principles (respect). As a further step, laws might be passed to prevent interference with the principles (protect). As a final step, laws might be passed to actively promote the realization of the rights (fulfil).  

Resolving Tensions Between Principles: In some areas of law or policy, there may be tensions between two or more of the principles. For example, the autonomy of older persons is often perceived to conflict with protection of their security – adult protection laws providing one potential example of this tension. In assessing situations where tensions are perceived to exist between principles, one should:

  1. Consider Context: Consider the larger context in which the tension is perceived to arise. Often, the difficulty does not arise from irreducible tensions between two principles, but from a larger context in which limited resources, societal attitudes or institutional structures inhibit the simultaneous achievement of two principles. It may appear that the simplest solution is to, for example, prioritize the autonomy of older adults over their security, but the better approach is to develop solutions that will move towards fulfilment of both principles. 
  2. Analyze the Tension: Where a true tension between principles exists, carefully examine the tension in a nuanced and holistic way. What specific rights or outcomes are at issue? Who might be affected? How might a reduced implementation of one principle affect the achievement of other principles? 
  3. Consider the Effect of the Other Principles on the Tension: Where two principles appear to be in tension, it is important to consider how the other principles may affect the dynamic, and how particular resolutions of the tension may impact on the realization of the other principles. 
  4. Maximize Implementation of the Principles: Consider whether solutions may be identified that permit expression of both principles, to at least some degree. 
  5. Promote an Anti-Ageist Outcome: Keep in mind that the purpose of the principles is to promote an anti-ageist approach to the law and address the barriers to equality experienced by older adults. What solutions to tensions between principles are most likely to advance this larger goal?

 

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