A.    Background

1.                  The LCO’s Project on the Law as it Affects Older Adults

This project is based in part on a proposal received by the LCO soon after its inception from Professor David Freedman, a professor of Elder Law at Queen’s University Law School. 

Demographic changes have in recent years drawn increased attention to the needs and circumstances of older adults. With the aging of Canada’s population, the importance of developing sound legal and public policy approaches to issues affecting older Canadians will continue to grow.  

Despite pioneering work done by organizations such as the Advocacy Centre for the Elderly (ACE) and the Canadian Centre for Elder Law (CCEL), relatively little attention has as yet been paid to the overall relationship of older Canadians with the law. While substantial and important work has been done on specific elder law issues, such as consent and capacity laws, mandatory retirement and elder abuse, there is generally a dearth of Canadian research on how older adults access the law and the barriers they face in doing so, and on how the law as whole might be made more effective, fair and accessible for older adults.  As well, research and policy development related to older adults and the law has focused on laws that explicitly or obviously disproportionately affect older adults, such as age-based drivers’ license requirements or legal issues regarding long-term care, while less attention has been paid to how laws affecting the general populace may also have a differential impact on older persons. This is therefore an area of the law that would benefit from a more holistic and principled approach. 

As the Federal/Provincial/Territorial Committee for Seniors pointed out in their Seniors’ Policy Handbook:

Applying a seniors’ policy lens can help to ensure that:

  • the needs and values of seniors are respected
  • the contributions of seniors in all aspects of life are acknowledged
  • the diversity of the seniors’ population is taken into consideration
  • activities that affect seniors are approached in a holistic manner that considers linkages and interactions with other policies and programs
  • the cumulative impact of change and the implications for seniors have been thoroughly considered
  • the concerns and issues of today’s seniors and of coming generations of seniors are considered.[1] 

Based on the proposal and the LCO’s internal research, the Board of Governors approved a multi-year project to develop a coherent framework for the law as it affects older persons. The aim of the LCO’s project on the law as it affects older adults is not to recommend specific reforms to particular laws affecting older persons, although certainly law reform is needed in many areas. Rather, the purpose of the project is to articulate a set of principles and considerations that may form the basis of a coherent analytical framework for this large, diverse and complex area of the law. Given the barriers that older adults face in accessing justice, the principles and considerations adopted should not only systematize this area of the law, but also make it fairer, more accessible and more effective. 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.   

This project is closely related to the LCO’s similar project on the law as it affects persons with disabilities.[2] A significant minority of older persons live with disabilities, whether because they have aged with disabilities or because they have developed disabilities as they aged. As well, there is a rich literature in the area of critical disability studies and the law, some facets of which can inform the development of an anti-ageist approach to the law, as can equality theory more generally. Therefore, while there are many areas where the two projects diverge, they have been developed in tandem and have shed light on each other during that process.

 

2.                  Shaping the Project: The Process 

Given the breadth and complexity of the issues raised by this project, it was planned as a multi-year, multi-stage project.  

Older adults are an extremely diverse group, ranging widely in histories, identities and circumstances. Every law that affects the general populace will affect older adults, sometimes in ways that are similar to how it affects others but often differently, and, importantly, often in very different ways for various groups of older adults. The area of “elder law” itself – that area of law dealing specifically or disproportionately with older adults – is extremely complex. As just one example, the law relating to capacity and substitute decision-making has itself been the subject of numerous law reform endeavours and voluminous reports.   

Recognizing the challenges inherent in this project, the LCO therefore commenced its work with a “Pre-Study” process, aimed at identifying themes, issues and approaches for the overall project.  In May of 2008, the LCO launched the Pre-Study with a Consultation Paper on Shaping the Project.[3] This Paper was posted on the LCO website and distributed to a wide range of academics and researchers, legal clinics, community organizations and government bodies. The Consultation Paper provided a brief overview of themes and issues identified through its preliminary research, and requested feedback from stakeholders on the scope and design of the Project, including key issues and principles. The LCO received written submissions from 21 organizations, and held meetings with six organizations and individuals. 

The LCO reported on the results of this Pre-Study and its initial research in a Paper issued in December 2008.[4]  In this Paper, the LCO adopted five preliminary principles: independence and autonomy; dignity and respect; participation and inclusion; security; and respect for diversity. It also identified several thematic areas for focus, including ageism and the law, the relationships of older adults and the living environments of older adults. This input shaped the considerable research undertaken by the LCO for this project. 

In January 2009, the LCO issued a Call for Research Papers on these themes, in order to supplement its own research and to gather diverse perspectives on key issues. Through this Call for Papers, the LCO funded three research papers: one from ACE on access to the law and congregate living; a second by Margaret Hall on developing of an anti-ageist approach to the law in the context of elder abuse and substitute decision-making frameworks; and a third by Charmaine Spencer on ageism and age discrimination in health and housing law. These papers are available on the LCO’s website at www.lco-cdo.org/older-adults-call-for-papers.

In the fall of 2010, the LCO co-hosted the 2010 Canadian Conference on Elder Law, in partnership with the CCEL (affiliated with the British Columbia Law Institute) and ACE. The Conference brought together a wide range of academics and experts, professionals, service providers, and community and advocacy organizations to consider the themes of ageism and the law, law reform and older adults, and access to justice for older adults.  Approximately 100 presenters and speakers shared their research and ideas, and the Conference resulted in a significant number of new papers, which are available on the LCO website. 

To guide its work, the LCO has formed an Advisory Group which provides advice on outreach and on approaches to the substantive issues at stake in the process. A full list of Advisory Group members may be found in the front matter of this Interim Report.  The LCO would like to extend its sincere thanks to the members of the Advisory Group for their invaluable assistance in the development of this Project to date, and their dedication amidst their many commitments.

 

3.                  The Primary Goal: Developing an Anti-Ageist Approach to the Law

The concept of “ageism” is relatively recent, generally being traced back to the work of Dr. Robert Butler beginning in the late 1970s. There has been growing recognition of the role of negative attitudes and stereotypes in shaping the experiences and treatment of older persons, and the importance of addressing these attitudes and stereotypes in order to ensure fairness and equality for older persons. 

In keeping with developments in areas such as disability and the law, and gender and the law, some have begun to conceptualize ageism, not only in terms of individual attitudes, but also in terms of structures, systems and institutions. Ageism may be reflected in the issues the law does or does not address, in the assumptions that are embedded in the law and the structures that are designed to implement the laws.  

Given the mandate of the LCO to address the relevance, effectiveness and accessibility of the law, considerations of how ageism may operate in and through the law are central to the LCO’s development of a framework for the law as it affects older persons, and are dealt with in detail in Chapter III of this Interim Report.   

 

4.                  This Interim Report and Next Steps

This Interim Report is the product of the LCO’s extensive research and consultation as outlined above, and marks a significant milestone in this project.  

It outlines in detail the key components of the LCO’s proposed anti-ageist approach to the law. These include:

  • the circumstances and characteristics of older adults to consider for purposes of inclusive design and targeted programs;
  • approaches to identifying and addressing negative stereotypes and attitudes about older persons in the law;
  • principles for an anti-ageist approach;
  • an analysis of the ways in which the law affects older adults; and
  • strategies for enhancing access to the law for older adults. 

These components are synthesized into a proposed evaluative framework for an anti-ageist approach to the law. Finally, an example of the application of this analytical framework is set out with respect to the Ontario law regarding access to home care supports. 

In order to provide context and nuance to the analysis and the proposed framework, we have included throughout detailed examples of particular issues from the law as it affects older adults, whether as illustrating common barriers in the law or best practices for an anti-ageist approach to the law. The examples are selected from issues that were identified through our Pre-Study as being of particularly urgent concern to older adults.  

This Interim Report has been widely disseminated for feedback, as well as posted on the LCO website at www.lco-cdo.org. Based on the responses, the LCO will prepare a Final Report for the approval of the LCO Board of Governors. 

The LCO encourages all interested persons or organizations to share their comments and suggestions for the improvement of the LCO’s analysis and proposed framework. The LCO requests that all feedback be forwarded to us by end of day on Friday, November 18, 2011.  Further information on how to participate in the consultation process for this next phase of this project may be found in the final section of this Interim Report, “Next Steps”.