In 2008, the Law Commission of Ontario’s (LCO) Board of Governors approved a multi-year project to develop a coherent framework for the law as it affects older persons. The aim of this project is not to recommend specific reforms to particular laws affecting older persons, although certainly law reform is needed in many areas, but to articulate a set of principles and questions, rooted in the lived experiences of older adults, that may form the basis of a coherent analytical framework for this large, diverse and complex area of the law. The ultimate aim of this project is to build on work that has already been done to develop a sound basis for evaluating current laws and policies and developing new ones, to ensure that they respect the rights and circumstances of older persons.
The LCO’s approach to this project has been shaped by the following considerations:
1. That access to justice requires looking beyond the clarity, efficiency and effectiveness of the law to considering normative issues.
2. The importance of incorporating and, where possible, synthesizing, recent important domestic and international initiatives in the area of law and aging.
3. The need to understand the social, economic and medical contexts in which older adults encounter and experience the law to enable law-makers and policy-makers to take them into account in designing and implementing laws and policies that may affect older persons.
4. The benefits of a framework based on a set of principles, which can provide guidance while remaining flexible and applicable in changing circumstances.
5. The centrality of the experiences and perspectives of older adults to the framework and its application.
6. That the evolving nature of aging and of elder law requires the framework to be designed as a strong foundation for further research, analysis and debate.
This Interim Report is based on consultation and extensive research undertaken by the LCO, and is intended to form the basis for further consultation prior to the completion of the Final Report.
II. Taking the Circumstances of Older Adults into Account
The starting point of an anti-ageist approach to the law is to recognize the existence of older adults as a group who may in some respects have different needs and experiences than younger persons, whether due to the accumulated effects of their life courses, social structures, or marginalization and stereotyping of older persons, and to take those particular needs and circumstances into account when designing laws, policies and programs.
The use of age as a way of categorizing people is so common a practice as to be almost unnoticeable. While the use of age categories risks reinforcing ageist thinking, it is at the same time indispensable in identifying and describing institutionalized ageism and in attempting to remedy its effects.
Law commonly uses age, at both the younger and older ends of the spectrum, as a category on the basis of which distinctions may be made. Older age is often used as a requirement for access to particular benefits, or as a marker for the addition of responsibilities or requirements, or as the basis on which particular activities or benefits are restricted. If one accepts the necessity of using age as a category for some purposes, that leaves still the difficult question of how to define membership in the category of “older age”. The LCO includes in the scope of this project all those who have been identified as “old” or “older” through legal and policy frameworks, through social attitudes and perceptions, or through self-identification.
Understanding the circumstances of older adults can be challenging for a number of reasons. Older adults make up a large segment of the population of Ontario and Canada: therefore, it can be difficult to form meaningful generalizations about their circumstances and experiences. As a result of ongoing demographic shifts, changing social attitudes and rapidly evolving legal and policy landscapes, the circumstances of older adults are constantly changing. What is true now about the experiences of older adults may not be true five years from now and may not have been true five years ago. As well, the lives and circumstances of older adults are profoundly shaped, not only by current laws and policies, but also by those that were in effect when they were children, young adults and middle-aged.
Education and literacy levels, labour force participation, income security, living environments, relationships and caring networks, and participation in the community are all relevant factors, as are characteristics such as sexual orientation, racialization or ethnicity, Aboriginal identity, place of residence, socio-economic status, citizenship status or other factors. Gender is particularly important, since most older adults are women, and the life courses of women differs in a number of key respects from those of men. The intersection of age with impairment, activity limitations and disability also raises important and complex issues.
Older adults have often been considered “vulnerable” as a group, and this vulnerability has been used to justify significant levels of interference with older adults’ autonomy. It is inaccurate to assume that all older adults are frail, dependent and therefore in need of protection and equally problematic to assume that the only or the most appropriate response to vulnerability is to restrict the autonomy of the older adults in question, a common form of paternalism affecting older adults.
However, it is also a mistake to assume that all older adults are privileged, affluent and capable. In some cases, older adults are disadvantaged because of life experiences; for others, aging itself may result in risk and hardship. For those older adults who experience or who are at greater risk of disadvantage and negative outcomes than others, a higher level of attention or protection from law or policy-makers may be essential.
Risk must also be understood in a broader social context. An older adult’s family and other relationships, living arrangements, income sources and levels, access to supports and the law itself may either increase or decrease levels of risk and inequality, depending on their quality and extent. Therefore, while laws, programs and policies must recognize the capacities and individuality of older adults, this recognition must be balanced by the provision of additional supports for those older adults who are particularly disadvantaged or at risk in order to ensure that the law promotes dignity, autonomy, participation and security for all older adults.
III. Addressing Ageism: Developing a Principled Approach
For the purposes of this Report, ageism is a systematic way of thinking about aging and older persons that sees aging as a negative process and older adults as separate and different from other members of society, attributing to them a set of negative characteristics. Ageism includes the tendency to structure laws and social institutions in a way that assumes that everyone is young. Ageism may be manifested in negative treatment of and discrimination against older persons, social exclusion of older adults and the tendency to ignore their existence, and paternalistic approaches that control older adults and remove autonomy under the guise of protecting their best interests.
Ageism has its roots in a set of pervasive stereotypes and negative attitudes towards older adults, several of which are explored in the Interim Report (for example, that older adults form a homogenous group, are burdens on society, and are resistant to change).
Ageism commonly manifests as paternalism, the tendency to remove decision-making opportunities for older persons under the guide of protecting their “best interests”. It also manifests as invisibility, such that older adults are systematically excluded from the social and public spheres.
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 also encourage the government to take positive steps to secure the wellbeing of older adults, the LCO’s framework centres on a set of principles for the law as it affects older adults.
Each of the principles contributes to an overarching goal of promoting substantive equality for older adults. 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. The Report explains the following principles in details:
1. Respect for Dignity and Worth (the right to be valued, respected and considered);
2. Promotion of Independence and Autonomy (the right to make choices and do as much for oneself as possible, with provision of supports if needed);
3. Enhancement of Participation and Inclusion (the opportunity to be actively engaged in and integrated in one’s community, and to have a meaningful role in affairs and to be consulted on issues that affect one);
4. Recognition of the Importance of Security (including physical, psychological, financial and social security, 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);
5. Recognition of Diversity and Individuality (that older adults may also experience discrimination based on their gender, racialization, Aboriginal immigration or citizenship status, sexual orientation, creed, geographic location, place of residence, or other aspects of their identities);
6. Understanding Membership in the Broader Community (that older adults are part of a broader community in which they have reciprocal rights and obligations).
IV. Identifying Ageism and Paternalism in the Operation of the Law
The term “law” as it is used in this project refers not only to statutes, but also to regulations, to the policies through which they are applied, and to the strategies through which statutory provisions, regulations and policies are implemented and experienced by older adults.
The current legal landscape as it affects older adults is complex, but may be generally categorized as follows:
1. The Charter and Human Rights Laws: While the principles adopted for this framework have roots in the Charter and the Code and aim to reflect the values underlying these fundamental documents, the analysis under this framework is not intended to replace reviews for Code or Charter compliance.
2. Age-Based Laws: In the case of most uses of age-based criteria, age serves as a proxy for some other quality, such as low-income, withdrawal from the workforce, health or ability limitations, or lack of legal capacity.
3. Laws Mainly Affecting Older Adults: There are also a number of laws that, while they do not employ age-based criteria, mainly affect older adults, operate in ways similar to age-based programs, and are often thought of as such. Laws regulating long-term care homes are one such example.
4. Laws of General Application: Some laws, while affecting individuals across a range of ages, affect a substantial portion of older adults. For example, a significant proportion of those affected by laws regarding legal capacity and decision-making are older adults. Laws of this type require policy-makers to find means to balance the needs and circumstances of older adults against the potentially different needs of other groups affected by the same law. In understanding the law as it affects older adults, it is also important to consider laws of general application which do not affect more older adults as a group, but may impact on older adults differently than on other groups.
5. Where Law is Silent: Law may fail to take into account the needs and experiences of older adults, and may therefore fail to address issues of pressing importance to this group. As a result, older adults may be left without adequate direction to make decisions on important issues, or without adequate supports or protections.
An examination of laws affecting older adults reveals that ageism and paternalism may operate through the law in a variety of ways.
1. Stereotypes and Negative Attitudes: Stereotypes and negative attitudes may manifest in either the substance or the implementation of the law, either explicitly or implicitly, sometimes through the implementation of the law and sometimes through the assumptions and attitudes of those who are charged with putting the law into practice.
2. Failure to Take Older Adults into Account: Laws may, in either their substance or their implementation, fail to consider the particular experiences of older adults, or may base their approach on assumptions rather than on current research and consultation with older adults.
3. Subordinating the Needs of Older Adults: In some cases, legislators, policy-makers, service providers and professionals, when faced with competing priorities for time, attention and resources, may choose to subordinate or to ignore the needs of older adults.
V. Ensuring Access to the Law for Older Adults
A key concern in the law as it affects older adults is the “implementation gap”, wherein laws which on their face are neutral or positive with respect to older adults are in practice unproductive or negative in their effects, due to inadequate implementation and poor enforcement. One important aspect of the implementation gap is access to the law for older adults, meaning the existence (or lack thereof) of effective mechanisms for accessing and enforcing existing laws.
Although concerns regarding access to the law are not limited to older adults, fixed incomes and withdrawal from the workforce, lower than average literacy and educational levels, the onset of health and activity limitations as age advances, and limitations in life expectancy all may limit access for older adults. Some significant portions of the older adult population also have their experiences shaped by cognitive disabilities, living environments that reduce their autonomy and community inclusion, and the consequences of physical, financial or other forms of dependency.
Older adults may be affected by the legal issues facing the population in general, but older adults are more likely to encounter issues resulting from withdrawal from the workforce or needs related to impairments or disabilities. They are therefore more likely to be users or potential users of government programs and services than younger adults. Because issues related to the receipt of government programs and services will often involve general policies and procedures rather than individual interactions and decisions, the legal issues that older adults face may often be extremely complex and may require systemic remedies.
As well, the importance of issues like elder abuse, powers of attorney, estate planning and informal caregiving to older adults mean that when older adults encounter the law, it will very frequently be in the context of their domestic lives and their personal relationships. This has implications for how older adults may access the law, and what outcomes they may seek from it. For example, they may be less willing to explore adversarial mechanisms for resolving issues.
A review of key access mechanism available to older adults reveals a number of systemic barriers to access to the law for older adults, including:
1. Ageist or paternalistic attitudes on the part of those implementing the law;
2. Inadequate training and information on the requirements of the law for those charged with implementing it;
3. Lack of adequate oversight mechanisms for key legal rights and protections;
4. Lack of appropriate mechanisms for recourse where rights have been violated;
5. Lack of meaningful remedies where rights appear to have been violated;
6. Over-reliance on complaint-based systems for redressing individual or systemic issues;
7. Failure to recognize and accommodate the needs of older adults in the set-up and delivery of access mechanisms; and
8. Adversarial systems that may jeopardize on-going relationships of central importance to the well-being of the older adult whose rights have been violated.
Measures to ensure access to the law for older adults include:
1. Anti-ageist training for those interpreting or implementing laws and policies;
2. Training on the relevant needs and circumstances of older adults;
3. Adequate training on the law and its implications for those implementing it;
4. Adequate resources for effective implementation of the law;
5. Monitoring mechanisms to ensure the law is operating as intended;
6. Ensuring that access and enforcement mechanisms take the needs and circumstances of older adults into account;
7. Empowering older adult;
8. Addressing systemic issues; and
9. Alternatives to adversarial systems.
VI. Developing a Framework for an Anti-Ageist Approach to the Law
Based on the previous Chapters, the final Framework must be based on the following elements:
1. a basic account of key elements of the experiences of older adults that may shape the ways in which older adults encounter and experience the law, importantly including considerations regarding the diversity and individuality of older adults;
2. an understanding of the concepts of ageism and paternalism, and how these may operate in or through laws and policies;
3. a set of principles for the law as it affects older adults, as a means of articulating what the goals of the law as it affects older adults should be;
4. a description of the multiple ways in which laws may affect older adults; and
5. an analysis of the various barriers that older adults may face in accessing the law, together with some proposed strategies for addressing these barriers.
To be effective, the Framework must be:
1. holistic, bringing together the various elements into a unified and coherent whole;
2. flexible enough to apply across the broad range of contexts in which older adults encounter the law;
3. reflective of the diversity of experience and identify among older adults;
4. specific and practical, in order to provide meaningful guidance in the development and review of laws and policies; and
5. useable, with accessible structure, layout and language.
A Draft Framework for an Anti-Ageist Approach to the Law is set out in Appendix A of this Interim Report.
VII. Applying the Framework: The Example of the Law Regarding Home Care Supports
This Chapter illustrates the application of the Framework through considering a current issue in the law as it affects older adults: the law relating to access to home care supports. The intent of this illustration is not to provide a comprehensive description of this area of the law or to propose specific reform initiatives, but rather to reflect on this area of the law in light of the anti-ageist principles and considerations that have been identified in this Interim Report.
A review of the law through the lens of the Draft Framework indicates that the overall written purpose and principles of the law are in harmony with anti-ageist principles. Implementation concerns include the lack of clarity in eligibility criteria, difficulty in accessing information about services and rights, uneven service delivery across the province, and problematic complaints mechanisms.
VIII. Next Steps
The LCO invites comments on the Interim Report or the Draft Framework. The consultation period will run until Friday, November 18th, 2011. The LCO welcomes written submissions. We will also be developing in-person consultations, to take place in the late summer and early fall of 2011.
Based on the results of the consultations and further research as necessary, the LCO will develop and release a Final Report and Framework in the spring of 2012.
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