V. ENSURING ACCESS TO THE LAW FOR OLDER ADULTS

V. ENSURING ACCESS TO THE LAW FOR OLDER ADULTS2017-03-03T18:30:48+00:00

As is apparent from the discussion in Chapter IV, equal attention must be paid to both the substance of laws and how they are implemented. Laws which on their face are neutral or even positive with respect to older adults, may be in practice ineffective or negative due to inadequate implementation and poor enforcement. This is the problem that the Advocacy Centre for the Elderly (ACE) has referred to “good law, bad practice”. 

In a number of areas of law, the law is good but the practice is bad. Therefore, law reform per se would not be necessary, but research on why the law is not being followed could be very useful since it has a negative impact on older adults and their rights. Good laws should not be changed merely because there is resistance to comply.[421] 

The Report of the United Nations Expert Group Meeting on the Rights of Older Adults specifically urges governments to “close the gap between law and the implementation of the law”.[422]  

One aspect of the implementation gap is access to justice (or the lack thereof) for older adults. While the importance of access to justice is widely discussed, there is considerable divergence of opinion as to what “access to justice” means and what would be required to ensure it.[423] It is beyond the scope of this document to consider these debates in depth; however, as a starting point for considering the issues in this section, it is essential to clarify some terms as they are used here.  

In its broadest sense, the term “access to justice” can incorporate concepts of social justice, and involve considerations of substantive outcomes and the achievement of justice for vulnerable groups. In that sense, this Project as a whole aims to increase access to justice for older adults.  

More narrowly, the term “access to justice” may be used to refer to access to the legal system as one mechanism for ensuring that the law as written is effective as intended. Unless the law is actually implemented and enforced, and is a living reality, it has little meaning for those whom it was intended to benefit.  The term “access to the law”, as it is used in this Report, refers to the ability of individuals to effectively access the intended benefits of the law.  

This concept of access to the law is clearly closely related to the issue of “good law/bad practice”, as referenced above. Lack of effective mechanisms for accessing and enforcing existing laws may be one of the reasons for this phenomenon. 

Clearly, one element of access to the law is access to the legal system, which includes the ability to acquire information about one’s legal rights, to obtain competent legal advice and representation as required, and to access existing legal dispute resolution mechanisms. However, access to the law can be ensured in many other ways; for example, through advocacy organizations such as ombuds’ offices, or administrative complaint systems or through proactive monitoring and auditing structures.  Some mechanisms for facilitating access to the law are discussed in this Chapter.

 

A.    Older Adults and Access to the Law

As is described in Chapter II of this Report, older adults are an extremely diverse group, ranging widely in income, education, health status and place of residence, among other factors. The nature and level of concerns related to access to the law will therefore vary widely among older adults. For example, a married couple in their early 60s, in good health and with solid retirement savings and access to pension benefits, will have considerably fewer challenges in accessing the law than a widow who was recently sponsored to come to Canada in order to help care for her grandchildren, who is not entitled to government supports such as OAS, who does not have connections and supports in the community, and who does not have strong English language skills.  

Of course, concerns regarding access to the law are not confined to older adults. Many disadvantaged groups find their access to the law limited in a variety of ways. Immigrants may experience linguistic barriers in accessing the law, while those with low or moderate incomes will face financial barriers. Discrimination and the effects of historical disadvantage may marginalize racialized, Aboriginal or LGBT individuals, as well as others. As discussed at length in the LCO’s project on the law as it affects persons with disabilities, physical or other barriers may reduce access for persons with disabilities. As many older adults are also immigrants, low-income, racialized, Aboriginal, LGBT, persons with disabilities or members of other marginalized groups, they will face disadvantages as members of these groups, which in some circumstances are compounded by their age. 

There are also some circumstances that are particularly prevalent among older adults that may limit access to the law for this group. These circumstances were discussed at some length in Chapter II of this Interim Report and include fixed incomes and withdrawal from the workforce, lower than average literacy and educational levels, the onset of health and activity limitations with the advancement of age, and limitations in life expectancy. 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.  

Any discussion about access to the law and older persons must be placed in the context of the larger and ongoing discussion regarding the accessibility of Ontario’s legal system, issues also examined in the LCO’s projects on entry to the family law system and on vulnerable workers and precarious work.[424] Concerns have been raised from many quarters regarding the accessibility of the legal system, and in recent years numerous initiatives and reports have been undertaken to address the problem. As summarized by the Ontario Bar Association’s Report, Getting it Right:

Ontario’s legal system is in critical need of reform. A lack of resources in terms of judicial appointments, court facilities, justice and community support services and the under-funding of Legal Aid have combined with other challenges to create significant barriers to justice for Ontarians.  

We need change: just as a health care system is there to deliver health care, Ontario’s justice system is there to deliver justice. If we think health care is expensive, try disease. There comes a point in a patient’s deterioration that bandages just won’t work anymore. Ontario’s justice system is at that stage now. [425]

Older adults may of course deal with the full range of legal issues that affect individuals in general. However, as was noted in previous chapters, due to their circumstances there are some issues which older adults are more likely to encounter. For example, because older adults tend to have withdrawn from the workforce and are also disproportionately likely to have needs related to impairments or disabilities, they are more likely to be users or potential users of government programs and services. They are therefore more likely to be affected by the laws related to the provision of certain government programs, such as health care, income security, long-term care homes, and home care supports. 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, means 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.  

Charmaine Spencer has noted some of the implications of these dynamics for access to justice for older adults:

[T]he legal process often pits an individual against someone with whom they have an ongoing relationship – a landlord or home care agency – so that many people who face real and serious barriers are reluctant to file complaints. This means that they will often wait until they have already suffered substantial harm before trying to deal with it. Formal and informal advocates can face significant challenges when acting for older adults and advocating for them in systems on which they are dependent or will need. There is the ever-pressing need to address ‘conflict’ while recognizing the reality that the older client must continue to use the service of the service provider with whom they are having conflict.[426]

 

B.    Assessing the Access Mechanisms Available to Older Adults

Taking the above considerations into account, how well do currently available mechanisms for accessing and enforcing the law serve the older adult population? 

Given that older adults, as part of the general populace, are affected by all laws of general application, and therefore have access to all of the complaint and enforcement mechanisms available to the general populace, there are a wide variety of mechanisms available and regularly used by older adults in accessing the law. It is well beyond the scope of this discussion to outline in detail all mechanisms available to older adults for accessing and enforcing the law. Rather, the focus will be on outlining some of the most important mechanisms currently available, given the types of issues most commonly encountered by older adults. This overview, albeit cursory, allows for some assessment of the characteristics and potential of various types of mechanisms in enhancing access to the law for older adults.

1.                  Selected Key Mechanisms for Accessing the Law

Civil Litigation

Often rights accorded to older adults must be enforced through civil actions. A notable example of this is the “Resident’s Bill of Rights” which was initially found in the  Nursing Homes Act,[427] and in an amended and expanded version is in the new Long Term Care Homes Act, 2007.[428]  The “Resident’s Bill of Rights” includes the right to be treated with courtesy and respect; to be properly sheltered, fed, clothed, groomed and cared for; to be afforded privacy in treatment and in caring for personal needs; to keep and display personal possessions in one’s room; to be informed about procedures when being considered for restraints; to communicate in private and to receive visitors; and many others. Under both the (now superseceded) Nursing Homes Act and the Long Term Care Homes Act, these rights are the subject of a deemed contract between the resident and the licensee. Enforcement of these rights would therefore take the form of an action against the licensees for breach of contract.

Civil litigation is a challenging route for enforcement of rights. It is often a slow and time-consuming process. It is also a costly one, dependant as it is on access to a lawyer, and therefore out of reach for low-income Ontarians, excepting the minority who can access Legal Aid funding. The adversarial nature of the process may make it unsuitable for resolving some types of issues. For example, in the case of rights under the Resident’s Bill of Rights, the power imbalance between care home residents and licensees makes an action for breach of contract an unhelpful means of pursuing such basic rights.[429] Finally, individual actions are unlikely to provide an adequate remedy where systemic or widespread violations of rights are at issue.

 

Criminal Justice System

The Criminal Code is the primary vehicle for addressing elder abuse in Ontario. While the Code does not deal specifically with elder abuse, its general provisions cover most of the issues of concern. Relevant provisions include those addressing theft, assault, sexual assault, false imprisonment, failure to provide the necessities of life to a dependent, fraud, misappropriation of funds by a person in a position of trust and theft by power of attorney. The sentencing provisions of the Code provide that evidence that the offence was motivated by bias, hate or prejudice based on age shall be deemed an aggravating factor, as well as abuse of a position of trust or authority in relation to the victim.[430]

However, many have noted that the criminal justice system, while important in addressing elder abuse, has significant limitations, and cannot provide a comprehensive response to the issue.[431] The complex relationship dynamics underlying some forms of elder abuse, together with the effects of shame and fear of retaliation, may make the victims of such abuse reluctant to disclose it or to see family members face criminal penalties.[432] Delays in the administration of justice can mean that victims of abuse may be dead or incapable by the time the case goes to trial. For example, in R. v. Khelawon, the manager of a retirement home was accused of assaulting five residents; however, by the time the matter reached trial, four of the victims had died and the remaining victim was no longer competent to testify. The Supreme Court of Canada ruled that the videotaped statements made by the victims after the assaults were inadmissible as being unreliable, and as a result, the accused was acquitted.[433]   

 

Administrative Tribunals

Administrative tribunals are an important mechanism for enforcing rights related to many areas of day-to-day life for older Ontarians.  

For example, rights under the Ontario Human Rights Code to freedom from discrimination on the basis of age in the areas of housing, services, employment, contracts and professional associations are enforced by filing an application with the Human Rights Tribunal of Ontario (HRTO). The protections of the Residential Tenancies Act with respect to rental housing and retirement homes are accessed through application to the Landlord Tenant Board (LTB). The Consent and Capacity Board (CCB) hears challenges to findings of incapacity with respect to treatment, property, personal health information and admission to long-term care. 

Administrative tribunals are meant to provide dispute resolution forums that are expert in their specific area, and provide relatively inexpensive, speedy and flexible procedures. In this way, they are intended to increase the accessibility of the law. 

Accessibility is the underlying rationale for both the “Dicean” and “post-Dicean” – the legal and the administrative  – aspects of administrative tribunals. To be accessible therefore, administrative tribunals must provide a service that attracts those that wish to avail themselves of its jurisdiction. Since the time and expense required to resolve a dispute may inhibit parties … who are seeking the assistance of a workplace regime, disputes must be resolved quickly and inexpensively.[434]

Tribunals such as the HRTO and the LTB include provisions for alternative dispute resolution processes, such as mediation. These tribunals have powers of inquiry, as well as broader discretion with respect to the rules of evidence.  

Tribunals are, however, subject to some of the same criticisms as the civil justice system. In practice, tribunal procedures can be complex, and given the importance of the rights at stake, many applicants feel disadvantaged without legal representation. A review of the website of the LTB reveals ten separate forms for tenant applications, each of which is accompanied by instructions of 10 to 20 pages in length, and many of which have filing fees attached. In recognition of the complexities of the human rights application process, a Human Rights Legal Support Centre has been created which provides supports to some applicants to the HRTO. 

As well, tribunals, like the civil justice system, are subject to delays and backlogs. As an example, Ontario’s human rights system was recently reformed, in part in response to persistent concerns regarding the slow processing of human rights complaints.

 

Administrative Complaint Mechanisms

Access to the law may also be provided through administrative complaint mechanisms. The complaint mechanisms under the Consumer Protection Act provide one example. As older adults are frequently the target of consumer fraud, consumer protection is of particular concern to this group. While victims of violations of the Consumer Protection Act may pursue a civil action, they also have the option of registering a complaint with the Ministry of Small Business and Consumer Protection. The Ministry has the power to make inquiries, gather information and work towards the resolution of disputes and complaints of any matter that comes to its attention with respect to consumer protection. The Ministry’s investigative powers are broad, and include powers to obtain warrants and to conduct site inspections. The Ministry has the power not only to address individual complaints but to audit and control systemic practices.[435] 

Similarly, the Ministry of Health and Long Term Care operates the ACTION line as a means for residents of long-term care homes to report concerns about the care and services that they receive. An operator assesses the urgency of the matter and may refer the information to a compliance advisor to complete an investigation. The monitoring system for long-term care homes, including the ACTION line, was the subject of an investigation by the Ombudsman Ontario, which concluded in December 2010. The Ombudsman noted a number of issues with the ACTION line complaints process, which the Ministry is working to address. The Ombudsman noted that the investigation process is not particularly rigorous:

To begin with the first contact most individuals have with the Ministry is with a call centre which is not equipped to provide any detailed information regarding long-term care issues. Some complainants as well as Ministry compliance staff expressed concerns about the accuracy of information provided by Infoline/Action Line staff to individuals calling to report resident care concerns.  We also learned that the Ministry routinely refers individuals back to the home that is the subject of the complaint. Many complainants have expressed fear about complaining directly to a home because of the risk of reprisal against them or their loved ones. Some of those who complained to our office noted that as a result of making a complaint to a specific long-term care home they were threatened with being banned from the home and in one case a lawsuit was threatened. [436]

The Ombudsman also noted problems with delays, cursory investigations, and a lack of transparency and accountability regarding the results of the investigations.

 

Statutory Investigative Agencies

In some case, specialized bodies have statutory investigative powers. For example, the Office of the Public Guardian and Trustee (OPGT) has a statutory duty to investigate any allegations that a mentally incapable adult is suffering or is at risk of suffering serious financial or personal harm. It has taken the position, however, that it will undertake such investigations only where no other alternative is available. The OPGT may, where the results of an investigation warrant, request a court to grant it temporary guardianship.[437] The OPGT’s investigative powers include a right of entry to facilities or controlled-access residences, a right to meet in private with the allegedly incapable person and a right of access to relevant records.[438] 

ACE has raised concerns regarding the OPGT’s narrow approach to its investigative powers, reporting that it often receives calls from friends, family members and health practitioners who have contacted the OPGT with concerns regarding the well-being of an older adult and who have been told that an investigation will not be completed.[439]

On the other hand, the Canadian Association for Community Living has raised concerns that there are not sufficient checks and balances on the OPGT’s exercise of its statutory powers: 

Our Association is concerned that the exercise of authorities under the OPGT and the Consent and Capacity Review Board are without adequate checks and balances.  We say this in full recognition that there are individuals who work in both of these systems, which undertake their work with great sensitivity and care to the needs of their clients and those who come before them.  We recognize the necessity of such authorities.  We believe they have an important place in a system to help manage and support personal decision making for older adults.  But in the absence of other elements of a system that independently address adult protection issues, provide independent advocacy, and provide support in the exercise of legal capacity, these Offices can do harm.  We believe that some actions of the OPGT can be, and have been, extremely harmful to the integrity of persons and families.[440] 

 

Advocacy Institutions

There are also a number of institutions dedicated to advocating on behalf of groups including older adults. 

The Ontario Human Rights Commission (OHRC) has a mandate to undertake research and public inquiries, develop policies and conduct programs of public education in order to advance the purposes of the Ontario Human Rights Code, which include the prevention and redress of discrimination on the basis of older age. While the OHRC no longer receives and investigates individual complaints, it does have the power to initiate and intervene in applications at the HRTO.[441] As noted earlier, it has exercised its broad advocacy powers to advance the rights of older Ontarians through public education, advocacy and policy development,[442] a notable example being the involvement of the OHRC in the successful campaign to amend the Code with respect to mandatory retirement.[443] 

There have been, however, relatively few human rights complaints (now applications) related to age discrimination, and most have been related to employment discrimination.[444] Human rights mechanisms have not at this point proved to be an effective method for challenging the systemic disadvantages faced by older adults in terms of institutional care, provision of caregiving supports, access to health care services, and housing.  

The Ombudsman of Ontario has a mandate to receive and investigate complaints from individuals regarding the provision of services by the provincial government and its organizations. While the Ombudsman cannot issue orders, it can issue reports and recommendations. In recent years, the Ombudsman has used its powers to conduct many high-profile systemic investigations on issues which affect large numbers of people. The Ombudsman does not have the power to investigate issues related to the extended public sector, including municipalities, hospitals, and long-term care homes, all institutions of particular importance to older adults, and has been advocating for the extension of its mandate to cover this important sector.[445]  Because its mandate includes government services, the Ombudsman’s mandate has, however, included the power to conduct a systemic investigation into the Ministry of Health and Long-Term Care’s oversight of the long-term care home sector, as outlined above.[446] 

Among the most important of advocacy institutions available to older adults is Legal Aid Ontario. The mandate of Legal Aid Ontario is to provide access to justice for low-income individuals.[447] Legal Aid Ontario provides low-income individuals with access to legal services through a variety of mechanisms, including legal aid certificates, duty counsel, advice lawyers, and legal clinics. Clinic services include ACE, Canada’s first legal clinic devoted to the needs of older persons, and still one of only two such clinics in the country. ACE provides not only legal advice and representation to qualifying older adults, but also public legal education and law reform on behalf of older adults in general.[448] 

The major criticism of Ontario’s legal aid system is its very limited scope. The income thresholds for eligibility for its services are very low. For example, a family of four with an annual income of anything over $31,000 may not qualify.[449] Many people who are living on low or fixed incomes will not qualify for legal aid, despite being unable to afford to pay for legal services out of their own pockets. Further, even those who qualify may be asked, if they are homeowners, to put a lien on their house in order to receive assistance, something which many older adults are understandably hesitant to do lest they lose their homes. Finally, Legal Aid covers only a limited number of subject areas: certificates are not provided, for example on civil matters such as violations of consent and claims against long-term care homes.[450]

 

Mandatory Disclosure and Rights Advice

There are a number of situations where, under Ontario law, individuals must be informed of their rights by a rights advisor. The entitlement to rights advice is triggered when there is a substantial change in the status of the individual, such as where a patient in a psychiatric facility has his or her status changed from voluntary to involuntary, or where a physician decides that a patient is incapable to manage property. The rights advisor cannot be a person involved in the direct clinical care of the person to whom the rights advice is given. The rights advisor must explain the significance of the change in legal status for the individual, and if requested to do so, must assist that person to apply for a hearing to challenge the decision. Failure to provide appropriate rights advice can invalidate a finding of incapacity.[451]

Rights advice is not mandated for persons found to be incapable outside of a psychiatric facility; however, there is an entitlement to rights information, which is provided by health care professionals.[452] The requirements for rights information are laid out by Guidelines of the relevant health care professions, so that failure to provide appropriate rights information can be the source of a complaint to the governing body of the profession. For example, the Policy Statement on Consent to Medical Treatment for the College of Physicians and Surgeons of Ontario requires the physician to:

  • inform the incapable patient that a substitute decision-maker will assist the patient in understanding the proposed treatment and will be responsible for making the final decision;
  • involve the incapable patient, to the extent possible, in discussions with the substitute decision-maker;
  • if the patient disagrees with the need for a substitute decision-maker, or disagrees with the involvement of the present substitute, advise the patient of his or her options, including finding another substitute of the same or more senior rank, and/or applying to the Consent and Capacity Board for a review of the finding of incapacity; and
  • reasonably assist the patient if he or she expresses a wish to exercise the options outlined above.[453]

 

Self-Regulation 

In some cases, institutional sectors or service providers have developed mechanisms for self-regulation. For example, professions such as the medical, nursing and legal professions are self-regulating and have created mechanisms for receiving and resolving complaints. With respect to complaints regarding regulated health professions, ACE notes that, 

It is ACE’s experience that the complaints process is lengthy and, if legal counsel is retained, expensive. Some of our clients opt not to make a complaint because it will take too long to address a problem that needs to be addressed immediately.[454]

  

Internal Institutional Mechanisms

Legislation may also mandate internal institution mechanisms for identifying and resolving issues. For example, under the new Long Term Care Homes Act, each home must have a Residents’ Council, with the power to advise residents on their rights and obligations; review certain documentation related to the home; mediate and attempt to resolve disputes between residents and the home; and report any concerns and recommendations to the Minister (such Councils are voluntary under current legislation). The Long Term Care Homes Act also permits the creation Family Councils, which will have powers similar to those of the Residents’ Councils. As the Long Term Care Homes Act is new, and those Councils in existence have developed on a voluntary basis, it is difficult to assess the how effective these Councils will be in identifying and addressing issues.[455]  

Some hospitals, long term care homes and retirement homes employ patient advocates whose function is to assist patients or residents. These advocates are not mandated by law. ACE has commented on these patient advocates as follows:

One must be wary of this type of advocate because their objectivity may be compromised as they are paid by the institution itself. Furthermore, many of these advocates would appear to have no power and are there merely to placate those who complain when problems arise. Although these advocates can be a source of support and assistance, where there are real difficulties involving serious conflicts with the institution, it is unlikely that they will be able to advocate as strongly as most people would like, or as strongly as an advocate who is not connected with the institution due to a potential conflict of interest.[456]

 

2.                  Systemic Barriers

A review of the above suggests some themes and common gaps or problems in the mechanisms available to provide older adults with effective access to the laws intended to protect or benefit them.  

Ageist  and Paternalist Attitudes and Access to the Law

The potential impact of ageism in the development and application of laws was considered throughout Chapter IV. Ageism and paternalism may, of course, also shape the experience of older adults in attempting to access the law. 

For example, ageist and paternalistic attitudes have been identified as a key cause of elder abuse (as well as themselves a form of abuse), whether in private settings or government institutions.[457] Lack of respect and sensitivity by police officers may create a barrier to older adults reporting abuse: 

[N]early half of the seniors who reported a negative interaction with the police recall experiencing some form of mistreatment, specifically lack of respect, compassion, or understanding from the responding officer. Seniors need to feel appreciated, understood, and reassured that their problems are important and that they are doing the right thing by reporting.[458] 

It has been suggested that subtle ageism among health care providers may limit access to health care for older adults; for example, there is a tendency to treat mental illness in older persons as less worthy of intervention than when it manifests in younger persons, and to misdiagnose depression among older adults as dementia.[459] A more systemic form of ageism in health care can be identified in the problematic practice of physicians who manage their caseloads by screening out patients with chronic or complex medical issues, many of whom are older. [460]

Negative, paternalistic attitudes and stereotypes about older persons may combine with negative attitudes related to gender, race, sexual orientation, disability or other aspects of identity to create particular stereotypes and barriers. The World Health Organization, for example, has recommended that elder abuse and responses to it be considered in the context of gender and socio-economic status, as these factors underpin almost all contexts of elder abuse.[461]

 

Inadequate Training and Information

Given the complexity of many areas of elder law, it is perhaps not surprising that those charged with implementing these laws have often received inadequate training and information. Service providers, government officials and even lawyers may act on misunderstandings of the law or may provide older adults with incorrect information about the law. 

Ageism can also be manifested when individuals and organizations do not take the time to understand and accurately represent the law to those to whom they provide the service. Older adults’ dignity, personal integrity, and health care rights are fundamentally affected by that inaction. It has been pointed out for example that patients often receive misinformation from health care providers or sometimes from government forms on health care consent, advance care planning, etc. In some cases, as previously noted, tools such as advance care directives which are intended to be instruments to aid personal autonomy, become misused and in effect circumvent communication with the older person.[462] 

For example, only a small number of lawyers in Ontario have developed expertise in the legal issues that mainly impact on older adults, such as regulation of congregate settings, public and private home care, guardianship applications, health care consents and elder abuse. Lawyers who are not familiar with the relevant subject area may provide incompetent representation.[463]  

Similarly, health care custodians may misunderstand and misapply the requirements of the Personal Health Information and Privacy Act, 2004, which sets out a framework for collecting, using and disclosing personal health information, which may result in undue barriers for individuals attempting to access or protect their health care information.[464]

Professionals and service providers may also require training and education on issues affecting older adults. For example, in order to meet their responsibilities, professionals and service providers may require training on how to identify and respond to signs that an older person may have a disability that affects their legal capacity to make decisions, or that an older person may be experiencing some form of elder abuse. 

As a result, one of the premier recommendations in ACE’s research on access to the law for older adults in congregate settings is education for both service providers and older adults. ACE suggested that education has the potential to help close the gap between good law and bad practice, by putting residents in a position to exercise their rights and force good practice.[465]

 

Lack of Oversight

At times, there is a lack of clear rights and protections for older adults, which leaves them vulnerable to abuse or mistreatment. 

Over the years, concerns have been expressed regarding the oversight regime for retirement homes in Ontario. Retirement homes are defined by the new Retirement Homes Act, 2010 as 

a residential complex or the part of a residential complex,

(a) that is occupied primarily by persons who are 65 years of age or older,

(b) that is occupied or intended to be occupied by at least the prescribed number of persons who are not related to the operator of the home, and

(c) where the operator of the home makes at least two care services available, directly or indirectly, to the residents …[466]

Retirement homes operate across a range of services and models. Some are very small; others are large and institutional. Services may include meals, assistance with the activities of daily living, recreational and social programming, housecleaning and laundry, personal emergency response services and nursing care.  With significant pressures on the availability of long-term care and home care services in Ontario, retirement homes are essential part of the landscape for older adults who need supports. Retirement homes may offer many of the same services as long-term care homes, including services for high-needs patients and locked wards, making adequate oversight and protections essential.[467] 

Until recently, the retirement home industry essentially operated on a “consumer choice” model. There was no provincial licensing or granting of approval to operate, no government funding, and no oversight of the services provided, except through the industry association’s complaints line. The Residential Tenancies Act includes some requirements for providing potential residents with contractual information (the Care Home Information Package, or CHIP).[468] 

Very considerable concerns were raised regarding the lack of effective protections for residential retirement homes, particularly as a significant portion of the residents of these homes may be considered vulnerable.[469] It has been noted that a consumer choice model is not well suited to this particular market: 

[F]or the market to operate effectively, certain conditions must be met

  • Consumers must have an adequate supply of products or services to chose from;
  • They must be capable of exercising choice (that is, they must have decision making capacity and be free from coercion or undue influence) and
  • They must have recourse when things go wrong.
  • These criteria are noticeably absent in retirement homes and similar types of supportive housing in Canada.[470] 

Ontario has very recently introduced a new regulatory model for retirement homes, one which is still transitioning into effect. The Retirement Homes Act sets out a set of standards for retirement homes, including a Bill of Rights; requirements for provision of information to residents, their families and the public; the establishment of Resident Councils; development of plans of care; requirements for staff hiring and training; prevention of abuse and neglect; and restrictions on the use of restraints and locked-in wards. A regulatory authority is created, which has the authority to issue or refuse licenses to retirement homes, appoint inspectors to ensure that the minimum standards and any conditions placed on licenses are met, and to receive and review complaints regarding licensees. While the government may appointment members of the Board of Directors of the Authority, it may not appoint a majority of the members. Concerns have been expressed that the Authority is likely to be industry-dominated, and therefore be unable to provide effective oversight for this industry. The effectiveness of this form of regulatory structure in ensuring dignity and security for older adults, many of whom may be vulnerable in some fashion, remains to be seen. 

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CASE EXAMPLE: MONITORING MECHANISMS

Continuing Powers Of Attorney

As was highlighted earlier in this Interim Report, where individuals are assessed to be legally incapable of making decisions on particular issues, the law as expressed in the Health Care Consent Act (HCCA) and the Substitute Decisions Act (SDA) provides a mechanism for decision-making on behalf of the individual in question.  

These laws affect persons with cognitive, psycho-social, intellectual and developmental disabilities. As older adults are disproportionately likely to develop certain forms of cognitive disabilities such as dementia, these laws are of significant importance to older adults. For the purposes of this case example, the discussion will focus on the provisions of the SDA.  

The SDA sets out definitions of capacity for decisions related to property and personal care, and affirms a presumption of capacity.[471] The SDA also sets out mechanisms for assessing capacity. A finding of incapacity may be challenged by application to the Consent and Capacity Board (CCB). The CCB[472] has the power to hold hearings under the HCCA, the SDA, the Mental Health Act, and the Personal Health Information Protection Act. Appeals from decisions of the CCB are to the Ontario Superior Court of Justice.[473] The CCB is governed by the Statutory Powers Procedures Act. Parties may be represented by legal counsel, and where the CCB finds it appropriate, it may order the Office of the Public Guardian and Trustee (OPGT) to appoint counsel to act on behalf of the person whose capability is in issue.[474] 

 The consequences of a decision that a person lacks legal capacity to make decisions about property or personal care are significant. At this point, under Ontario law, the power to make decisions for the incapable person becomes vested in a substitute decision-maker (SDM). In other words, the person has lost the authority to make decisions, often major ones, about his or her life.  

Under the SDA, an SDM may be appointed in a number of ways. The now-incapable person may have, when capable, completed a continuing power of attorney within the requirements of the SDA, appointing an attorney in case of incapability for property decisions, personal care decisions, or both. The power of attorney becomes effective when a finding of incapacity is made.  

Under the SDA, if there is no valid continuing power of attorney relevant to the property or personal care decision(s) that must be made, a guardian may be appointed by the court, upon application by “any person”.[475] The Court may not appoint a guardian if the need for decisions to be made may be met by an alternative course of action that does not require a finding of incapability and is less restrictive of the person’s decision-making rights.[476]

The OPGT may be appointed as a statutory guardian of property or personal care. As well, the OPGT, which has a statutory duty to investigate allegations that a person is incapable of managing their personal care or property and that serious adverse effects are occurring or may occur as a result, may bring an application that results in its appointment as a temporary guardian.[477]

The SDA requires guardians and attorneys for property to act as fiduciaries and to consider the impact of decisions on the person’s comfort or well-being. As well, the SDM for property must explain his or her role to the person, encourage the person to participate to the best of his or her abilities in decisions, foster regular contact between the person and his or her family and friends, and consult with others who are close to the person.[478] Guardians and attorneys for personal care must take into account when making decisions the wishes and instructions of the person while capable, as well as the values and beliefs that the person held while capable and the person’s current wishes if they can be determined. The guardian must also strive to foster the person’s independence and to choose the least restrictive and intrusive course of action that is available and appropriate.[479]

Given the broad powers associated with continuing powers of attorney, the risk and consequences of abuse are substantial. As the Alberta Law Reform Institute has noted:

The downside of an EPA [Enduring Power of Attorney] is that it turns over control of some or all of a donor’s property and affairs to another individual, the attorney, whom the donor, because of their mental incapacity or infirmity, cannot effectively supervise. It is possible for an attorney to abuse these powers by using the donor’s assets for purposes other than the donor’s benefit. For example, an attorney may apply a donor’s assets for a purpose beneficial to the attorney rather than for a purpose beneficial to the donor, or an attorney may simply steal the donor’s property. Or an attorney who will benefit from the donor’s estate may refuse to use the donor’s money for the proper care of the donor.[480]  

The SDA includes some minimum safeguards to protect older adults lacking in legal capacity from abuse by those appointed as guardian or holding a continuing power of attorney for property or personal care. Donors of powers of attorney must be aware of the possibility that the attorney could misuse his or her powers.[481] Guardians for property are obliged to explain their powers and duties to the person in question, and to regularly consult with the person’s family and friends and those providing personal care.[482] They are required to keep accounts for all transactions concerning the property.[483] Similar requirements are set out for guardians for personal care, including a duty to keep records of decisions made on behalf of the incapable person.[484] 

Concerns have been expressed that these protections are inadequate.[485] There is no mechanism for monitoring the use of continuing powers of attorney, beyond complaints by the donor or by family and friends, and in such cases, challenges to the exercise of the power of attorney must take place through the courts, a costly, complex and time-consuming mechanism. Although estimates of its prevalence vary, financial abuse is the most commonly self-reported form of elder abuse, and misuse of powers of attorney makes up a significant portion of this type of elder abuse.[486] Financial abuse via power of attorney can have a devastating impact, not only on the financial security of older adults, but also on their emotional and psychological well-being.  The Ontario Bar Association has commented that: 

We are concerned not only that our current legislative framework is inadequate, but also that the processes and in the implementation of the laws, and both the laws and procedures are misapplied. A prime example is the Substitute Decisions Act (SDA) which is intended to protect the vulnerable. However, it makes the appointment of substitute decision makers and creation of powers of attorney an unsupervised process, while making the scrutiny of appointments of appointments and the abusive acts of the substitute decision-makers inaccessible, complex, slow, and expensive. As a result, powers of attorney are vulnerable to misuse and abuse, and justice delayed in the curtailing of abuse of these powers, is almost certainly justice denied. These breaches of the spirit and intent of the law involve fundamental Charter rights.[487]

The United Nations Convention on the Rights of Persons with Disabilities affirms the importance of providing sufficient monitoring and safeguards related to legal capacity for persons with disabilities. Art. 12 (4) requires that:

States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.[488]

The drive for efficiency and clarity among service providers may lead to a tendency to extend SDM powers beyond their legal limits or to ignore the requirements of the law. For example, ACE has noted that, 

Many long-term care homes routinely fail to obtain consent to treatment at all. Other homes attempt to obtain ‘blanket’ consents at the time of admission which purportedly apply to all treatments that might be prescribed during the course of their stay. This is not legal as it in no way meets the requirements of ‘informed’ consent as defined by the Health Care Consent Act. In some homes, treatment will be started, and some time thereafter a staff member will contact the substitute decision-maker to ‘advise’ them that the resident is now taking the medication, leaving no option open for ‘consent’.[489] 

Redress for abuse of SDM powers must be sought through the courts. This type of adversarial setting may be inappropriate for complex familial issues, and may in fact exacerbate conflict rather than resolve it. As the OBA has stated,

When the Substitute Decisions Act and the Health Care Consent Act, 1996 were passed into law, they did not anticipate the degree to which these laws would be applied in the context of ‘high conflict’ families. A significant number of court applications now involve substitute decision making for incapable adults and pit family members against each other. The legislation was never intended to address conflicts of this degree and type, and the current processes do not lend themselves to appropriate resolutions. [490]

As well, these court-based processes are often, in practice, inaccessible. 

One of the topics which ACE receives the most question is powers of attorney, particularly the issue of abuse. While the framework of the Substitute Decisions Act provides mechanisms for individuals to challenge a “rogue” attorney who is not fulfilling their functions or who is taking advantage of the grantor, it is not very accessible as it is court-based. For example, an individual can apply to the court for a passing of accounts or seek guardianship of property and/or the person for an incapable person but the costs are prohibitive.[491]

As was noted earlier in this Chapter, concerns have also been raised about the lack of checks and balances for the powers vested in the OPGT and the CCB. The OPGT, for example, has in certain situations extraordinary powers to make decisions regarding personal care, health and finances, which may only be challenged through expensive, time-consuming litigation which may be beyond the resources of concerned family members.[492]

Therefore, OBA has raised concerns that legislation which is intended to protect the vulnerable does not do so in fact:

A prime example is the Substitute Decisions Act which is intended to protect the vulnerable. However, it makes the appointment of substitute decision makers and the creation of powers of attorney an unsupervised process, while making the scrutiny of appointments and the abusive acts of the substitute decision-makers inaccessible, complex, slow and expensive. As a result, powers of attorney are vulnerable to misuse and abuse, and justice delayed in the curtailing of abuse of these powers, is almost certainly justice denied. These breaches of the spirit and intent of the law involve fundamental Charter rights.[493]

Therefore, mechanisms for greater monitoring of SDMs have been recommended.  As an example, the Western Conference of Law Reform Agencies, in its recent Final Report on its project, Enduring Powers of Attorney: Areas for Reform, set out a number of recommendations for preventing inadvertent or intentional misuse of powers of attorney, by ensuring greater transparency and scrutiny. For example, these recommendations included provisions requiring attorneys, upon commencing responsibilities for a legally incapable person, to issue a formal notice in which he or she formally acknowledges and accepts a specified list of duties as an attorney, and provisions enabling persons concerned about misuse to report concerns to a designated public official who will have discretion to investigate.[494] 

Development of protections against abuse of powers of attorney again involves a careful balance between protecting the security of vulnerable older adults, and upholding the autonomy and self-determination of those creating powers of attorney:

Some have argued that more complex power of attorney legislation including duties and limited powers, and protections such as registration intended to minimize power of attorney abuse, infringe donor autonomy and privacy, making court appointed guardianship, a more invasive and controlling process, more likely. On the other hand, it has also been suggested that greater oversight, including registration, allows for a more relaxed approach to capacity for creating a power of attorney, and so increases accessibility.[495]

Finally, some of the concerns regarding the operation of consent and capacity laws point to the lack of monitoring and oversight in general. Overall, there is a lack of data that could be used to properly evaluate whether Ontario’s capacity and decision-making laws are operating as intended, or operating in a way that negatively affects the rights of persons with disabilities and older persons. It is impossible, for example, to determine even the most basic starting points for analysis, such as, how many older persons in the province of Ontario have been found to be legally incapable and how many continuing powers of attorney for property or personal care are in effect, let alone the degree to which those acting as SDMs understand their roles, or the extent of abuse and exploitation of substitute decision-making powers.[496] Without such monitoring and oversight of the implementation of the law, it is difficult to determine whether the principles of an anti-ageist approach to the law are being respected, or to determine appropriate priorities for reform. This, in itself, tends to undermine the dignity, autonomy, participation, security and respect for diversity of older adults.

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Lack of Appropriate Mechanisms for Recourse

In some cases, there is no effective method of recourse for a violation of rights. As discussed above, the Residents’ Bill of Rights for residents of long-term care homes is one example: where the only redress for a violation of rights is a civil action for breach of contract against the institution where one lives and on which one is dependent for services, the potential for redress is illusory. 

Similarly, as is discussed at length in Chapter VII of this Report, while there is a review process for the decisions of Community Care Access Centres (CCACs), which are responsible for managing access to home care supports, older adults are often ill-informed about this right and how to access it. While a termination of services can be appealed from a CCAC to the Health Services Appeal and Review Board, there is no appeal mechanism related to the quality of services provided. Community Legal Education Ontario suggests that one method of recourse may be to sue the CCAC for breach of contract. However, since Legal Aid does not cover these types of issues, this is not likely an effective avenue for redress for a person dependent on publicly funded home care. Effectively, this means these rights are, for the most part, “paper rights” only.[497]

 

Complaint-Based Systems

The majority of systems in place to ensure the effective application of the law to older adults require the aggrieved individual to individually take action to raise and resolve the issue, whether through commencing litigation before a court or administrative tribunal, or filing a complaint through a government process, third party system, or internal complaint process.  

Complaint-based systems leave decisions about action to the initiative of older adults. This may be understood as respecting the autonomy of older adults. In some circumstances, however, complaint-based systems may be problematic, particularly where older adults are vulnerable or marginalized due to disability, low-income, immigration status, or other issues. Where older adults are dependent on others for ongoing care or supports, whether the others are family members or service providers, the negative consequences of filing a complaint against these individuals or institutions may be seen to outweigh any potential positive outcomes. As well, complaint systems may involve expenses, bureaucratic obstacles, or delays beyond the capacity of vulnerable older adults to absorb. As is discussed later in this Chapter, for this reason there has been recent interest in the possibilities associated with less adversarial means of resolving conflict, such as mediation.

Where services are targeted to vulnerable older adults, as with, for example, long-term care or home care services, systems that rely entirely on older adults to identify issues and pursue remedies may fall short of addressing needs.  As well, where systemic problems are at issue, individual complaint systems are unlikely to, by themselves, spur the changes that are needed to make a more effective system.  

Complaints-based systems are common in many areas of the law, and so the issues raised here are not necessarily, or not all unique to older adults. The limitations of complaints-based systems are also an issue in the LCO’s project on Vulnerable Workers and Precarious Work,[498] as well as, of course, in the project on The Law as it Affects Persons with Disabilities.

 

Failure to Recognize and Accommodate the Needs of Older Adults

As noted above, while older adults are an extremely diverse population, they are disproportionately likely to live with a disability or chronic health condition, to have lower levels of literacy and numeracy, to live on a fixed income, to rely on the assistance of others to manage the activities of daily living and maintain their independence, to live in a congregate setting, and to have a relatively short life-expectancy. 

Mechanisms for implementing and enforcing laws that affect older adults may not take these circumstances into account, and may therefore create barriers.  As an obvious example, while efforts are being made to increase the physical accessibility of the justice system,[499] much remains to be done. The costs of accessing justice are a significant issue for many older adults, as they are for many other groups. The LTB, for example, charges an application fee and has the power to award costs against an applicant, which may be a disincentive to pursue one’s rights.[500] As a further example, it has been pointed out that although public legal education has made important contributions to making the law more understandable and more accessible for many, it is still geared to the functionally literate person, which leaves many older adults at a disadvantage: older adults continue to point to the lack of plain language information on legal rights as a serious barrier. Further, 

Increasingly in many parts of Canada, public information on the law and government information about services and entitlements has been shifting from people sources to virtual sources such as the Internet.  The Special Senate Committee on Aging notes that a reliance on web-based information assumes a basic level of literacy and people’s ability to access the internet.[501] Many older adults, particularly older women, do not have access to or cannot use the Internet. In 2007, about one third (33.8%) of all men aged 65 and over and less than one quarter (23.1%) of all women aged 65 and over in Canada accessed the Internet at home and only about 1% of seniors used computers in public places like libraries.[502] Internet use still is largely limited to higher income seniors and those with higher education.[503] 

A recent example of failure to acknowledge and accommodate the particular needs of older adults occurred in the context of bylaw enforcement in the City of Toronto. The neighbour of an older resident with dementia asked the City to cut down a mature tree on her property. An order for the removal of the tree was issued by a Property Standards Officer and the tree was ultimately cut down, at considerable expense to the property owner. An investigation by the City Ombudsman found that the City lacked proper policies or processes for accommodating the needs of individuals with diminished legal capacity, resulting in unfairness to this individual. The City was aware of the resident’s dementia and diminished capacity, but did not take steps to ensure that the resident, through her substitute decision-maker, was fully informed about the issue and had appropriate opportunities to respond and have concerns addressed. The Ombudsman commented that:

Public service is most accessible to those who can navigate the established processes. It favours those with education and those who can meet the bureaucracy on its own terms. In this case, the resident is marginalized and is representative of many others in similar situations. In fact, many residents with dementia do not have a family member readily available to advocate on their behalf. The absence of policy or an established process to accommodate persons with dementia or diminished capacity is a gap MLS must address. At a systemic level, its absence creates an adverse impact on what is already a vulnerable group. A process to fairly serve the needs of those with dementia is especially urgent as the population ages. It is time to address this gap… The City cannot hope to be accessible, equitable or age friendly to residents with dementia unless it has ensured that barriers to this population have also been identified and removed.[504]

The challenges in ensuring mechanisms for access to the law take into account the needs of older adults will differ depending on the type of law in question. Where laws are age-based or mainly affect older adults, systems may be specifically designed to meet the needs of older adults. Where older adults make up a smaller proportion of those affected by a law, legislators and policy-makers must consider whether universal design approaches will be sufficient, or if some older-adult specific procedures or supports are necessary in order to ensure meaningful access for older adults.[505]

 

Adversarial Systems 

Many of the issues of most concern to older adults – for example, capacity and guardianship applications; elder abuse; and services in long-term care homes, retirement homes and home care – often involve ongoing, sometimes complex relationships on which older adults are dependent for their well-being. This raises difficulties for implementation, monitoring and enforcement.[506] 

Older adults may be reluctant to use adversarial systems in these circumstances. For example, older adults who are subjected to abuse may be very reluctant to see their abuser prosecuted through the criminal law system, despite their desire for the abuse to end.[507] 

As well, in such circumstances, adversarial systems may exacerbate rather than resolve issues. For example, the Ontario Bar Association has pointed out that substituted decision-making laws have become, to a significant degree, a venue for familial disputes, and may foster conflict rather than resolving issues.[508]   

 

Inadequate Remedies

Even where older adults pursue enforcement of their rights, the remedies available may be inadequate to provide real redress to older adults, or, where the violation of rights was caused by a systemic issue, to spur meaningful change. For example, because there are very few damages options available to older adults, civil litigation may not be an effective means of obtaining redress. Not only does this potentially perpetuate injustices, it creates a disincentive for older adults to attempt to enforce their rights, and thereby may prevent problems from coming to light.  

The previously highlighted case of Royal Arch Masonic Homes involved the death of a 77-year-old female resident of a long-term care home, following a fall that resulted from the negligence of a care aide. The three adult children of the victim sought redress from the long-term care home. The Court determined that the only damages that the long-term care home was obliged to pay were the funeral and burial costs. There was no economic loss resulting from the death of the victim, and the Court declined to award costs for loss of care and companionship, due to the victim’s age and her various physical and mental disabilities.[509] It has been pointed out that such a judgment essentially permits caregivers to harm older adults with impunity.[510]

 

C.     Strategies for Enhancing Access to the Law for Older Adults

It should perhaps be unnecessary to emphasize that a right without an effective mechanism for redress is not really a right at all; it is merely a statement of aspirations. A first principle for ensuring access to the law for older persons is surely to make certain that legal rights and protections for older adults are accompanied by clear and effective mechanisms for accessing those rights and protections. 

The above review of barriers to access to the law for older persons suggests the following as key strategies for designing effective mechanisms for older adults. 

1.                  Combating Ageism and Paternalism

Those working in the field of elder law have repeatedly emphasized the importance of developing and implementing strategies for combating ageism and paternalism, both in the populace at large and among those charged with designing and implementing laws and policies that affect older adults. Unless ageist and paternalistic attitudes are addressed, they will inevitably taint the application of the law, regardless of how well it is designed. Thus, the United Nations, the OHRC, and most recently the Senate Special Committee on Aging, to name just a few bodies, have made recommendations for anti-ageist education and training.[511] Anti-ageist education and training is fundamental to ensuring respect and dignity for older persons.  

Public education is, for example, central to the Ontario government’s 2002 Strategy to Combat Elder Abuse. This includes coordination of community services, training for front-line staff, and public education to raise awareness. Public education initiatives include 53 community response networks, and a province-wide Seniors’ Safety toll-free line that provides information and support in over 150 languages. The Ontario Network for the Prevention of Elder Abuse has developed a Core Curriculum and Resource Guide to educate workers about elder abuse and interactions with older adults, online e-training modules on financial and emotional elder abuse, a variety of training materials and a number of Public Service Announcements.[512]

ACE has this to say about the type of education and training that service providers should receive: 

The most important principle that needs to be conveyed to all stakeholders is that seniors are people. Older adults are presumed to be capable of making decisions and they have the right to make foolish decisions, just as people living outside a congregate setting do. ACE is of the opinion that many staff members and some families do not understand that older adults are allowed to take risks or make foolish decisions. Educational resources need to emphasize that residents’ rights are a two-way street: not only do they recognize the independent and autonomy of residents, but they protect staff from liability.[513]

Anti-ageist training and education must address, not only negative attitudes, but the tendency to forget the existence of older persons and to fail to take into account their needs and circumstances:

The needs of all citizens, including older persons, must be taken into account up-front so that physical, attitudinal and systemic barriers are not created. Assuming that everyone is young and able-bodied and designing programs and facilities on that basis is a form of ageism that must be addressed in our society. The Commission heard that some levels of government are now undertaking gender-based analysis. Similarly, government should consider the impact of laws, policies and programs on all age groups.[514]

 

2.                  Empowering Older Adults

As noted above, older adults frequently lack information about their rights or about the benefits and services that they are entitled to. Given the complexity of many areas of the law that disproportionately affect older adults, this is perhaps not surprising. However, it is problematic. Older adults who are not aware of their rights are not able to assert and claim those rights, with the consequence that the law may become ineffective. 

Lack of awareness of legal rights and mechanisms for redress undermines the autonomy and independence of older adults. Without knowledge of their rights and recourse, older adults lack the ability to make meaningful choices about how they will live their lives and take responsibility for the things that affect them.  

Provision of accurate, accessible information about legal rights and how to enforce them is therefore essential to ensuring access to the law for older adults.

 

3.                  Designing Mechanisms that Take Older Adults into Account

Mechanisms for access to the law must be designed in a way that takes older adults into account, regardless of whether or not the law in question is specifically targeted to older persons. As the Ontario Human Rights Commission has stated in its Policy on Discrimination Against Older People Because of Age:

The Commission has defined “ageism” to mean, in part, “a tendency to structure society based on an assumption that everyone is young, thereby failing to respond appropriately to the real needs of older persons.” Ageism occurs when planning and design choices do not reflect the circumstances of all age groups to the greatest extent possible. 

The Supreme Court of Canada has recently made it clear that society must be designed to be inclusive of all persons. It is no longer acceptable to structure systems in a way that assumes that everyone is young and then to try to accommodate those who do not fit this assumption. Rather, the age diversity that exists in society should be reflected in the design stages so that physical, attitudinal and systemic barriers are not created.

As a corollary to the notion that barriers should be prevented at the design stage through inclusive design, where systems and structures already exist, organizations should be aware of the possibility of systemic barriers and actively seek to identify and remove them.[515]

This means that mechanisms should take into account, for example: 

  • The financial demands imposed on those seeking justice, both in the context of low-income, and for those who are living on fixed incomes;
  • Accessibility for persons with physical, mental, cognitive and sensory disabilities, and for those with health limitations;
  • How information and assistance may be provided to those whose literacy or numeracy or comfort with technology is limited;
  • Whether dispute resolution and remedies can be provided within time limits that are meaningful for older persons;
  • Providing meaningful access for persons who are living in congregate settings;
  • How meaningful access can be provided for older adults who are vulnerable due to gender roles, linguistic or cultural barriers, immigration status, sexual orientation, dependency relationships, or other issues.                                                   

As was discussed in Chapter III, in some cases the needs of older adults can be taken into account through inclusive design. Inclusive design approaches are appealing for law reform because the benefits may be widely applicable beyond older adults, and such initiatives may thereby garner widespread support rather than resentment. For example, policies or programs that address physical accessibility issues will also benefit persons with disabilities and frequently families with young children. Communication strategies that reach beyond the internet and focus on plain language will improve outreach in many communities, not just among older adults. As well, they reduce the focus on older age as a binary concept opposed to youth. 

However, there are limitations to the inclusive design approach. Older adults may have needs that are sufficiently unique that they are not easily accommodated within an inclusive design approach. Or, in some cases, the needs of older adults may conflict with those of others. In such cases, it may be most appropriate to design policies or programs that are specifically tailored to older adults, as outlined below.

 

4.                  Use of Mechanisms Focused on Older Adults                                 

It is relatively rare to find mechanisms for access to the law that focus specifically on the needs of older adults. For example, while mechanisms related to long-term care homes will mainly impact on older adults, who form the vast majority of residents of long-term care homes, they also extend protection to the minority of residents who are younger adults with significant disabilities and complex medical needs. 

Most frequently, access to the law mechanisms specifically directed to the needs of older adults are focused on elder abuse. 

For example, many police forces in Ontario have units specializing in elder abuse, and the majority of police services have a coordinator specializing in elder abuse to act as a resource and community liaison. The Ottawa Police Service has an Elder Abuse Section, launched in January 2005. Its mandate is to investigate all allegations of abuse that fall within its definition of elder abuse, and to educate front-line workers and the general community about elder abuse. Similar programs have been developed in other parts of Canada and in other common-law jurisdictions such as Australia and the United States.[516] In the United States, the Administration on Aging administers the Prevention of Elder Abuse, Neglect and Exploitation Program, which provides federal leadership in strengthening elder justice strategic planning and direction for programs, activities and research related to elder abuse awareness and prevention.  The Administration on Aging also operates the National Centre on Elder Abuse, as a national resource centre on the issue.[517]  

There are some general mechanisms, however. Ontario’s ACE, discussed above, is a notable example, providing legal advice and representation to older adults, as well as general advocacy and law reform activities, and serving as a centre for the development of knowledge and expertise in the area of the law and older adults. 

The Canadian Centre for Elder Law Studies is affiliated with the British Columbia Law Institute. It is a national, non-profit body dedicated to studying legal issues that have a particular impact on older persons. As well as conducting its own legal research and law reform projects, it facilitates study and discussion of elder law issues through such venues as an annual Canadian conference on elder law, and hosting the World Study Group on elder law issues.  

The Australian government has funded the National Aged Care Advocacy Program, which aims to promote the rights of people receiving Australian Government-funded aged care services through community-based organizations that provide older adults with information about rights and assistance with exercising those rights. These centres also work with the aged care industry to encourage the development of policies and practices that protect consumers. Those living in an Australian government-funded place in an aged-care home have access to free, confidential and independent advocacy services.  Australia also has an Aged Care Complaints Investigation Scheme, which can look into complaints by older persons regarding any aspect of their care, and can require service providers, where appropriate, to take remedial action. Concerns regarding Aged Care Complaints Investigation Schemes may be examined by an independent Aged Care Commissioner.[518]

As is discussed at greater length below, Wales has recently established a statutory, independent Older People’s Commissioner. This is a watchdog agency, carrying out promotion, consultation, review, advocacy, education and investigative functions. The Commissioner can review and make recommendations about the adequacy and effectiveness of law for the protection of vulnerable older people and ask the Assembly Government to consider making changes where necessary. The Commissioner can also provide guidance on best practices to regulated service providers and review their policies and programs to ensure adequate safeguards for the rights of older persons. The Commissioner has the power to undertake investigations where there are systemic concerns at issue and the issue is not likely to be addressed in other ways.[519] 

As discussed at some length in Chapter IV of this Report, the use of older age-based programs and policies raises complex issues. It is important not to overemphasize the idea of older persons as a homogenous group. Not all older adults are disadvantaged or at-risk, and these older adults may share the experience of barriers and challenges with other vulnerable groups. Age, by itself, does not make older adults different or lesser. Programs based on an assumption of vulnerability among all older adults may lead to paternalism and undermine the autonomy and independence of older adults.  

At the same time, there are certainly subgroups of older adults who are disadvantaged or at-risk and whose circumstances require particular attention and accommodation. There may be circumstances where programs particularly targeting older adults are the most effective way to ensure the security and dignity of older adults. The programs developed by many police services focused on elder abuse, and which focus on recognizing the unique needs and circumstances of older adults who experience abuse and the particular barriers they may face in asserting their rights, likely fall within this category. 

Therefore, taking into account the general issues raised in the discussion of age-based criteria in Chapter IV, advocacy or enforcement programs targeted to older persons must be individually assessed, to ensure that the use of age as a criteria for eligibility is the most effective means of addressing the needs or vulnerabilities that are targeted; that the program is based on current research rather than stereotypes; and that the program effectively addresses the needs identified. 

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CASE EXAMPLE: MECHANISMS FOCUSSED ON OLDER ADULTS

Elder Abuse and Police Services

As highlighted earlier in this Chapter, older adults may face a range of barriers to reporting elder abuse. The complex relationship dynamics underlying some forms of elder abuse, together with the effects of shame and fear of retaliation, may make some older adult reluctant to disclose the abuse, or to see the perpetrators face criminal penalties. As a recent report on barriers to reporting summarized: 

Greatest are fears of retaliation, followed by loss of residency, increased vulnerability, and isolation, especially when there is daily contact with the abuser. Ultimately, there is a fear that the situation will get worse after reporting abuse…. Circumstances involving the abuser as being someone in a position of trust also have a negative impact on report rates. A relationship with an abuser can discourage an elderly person to report abuse because many seniors perceive the legal intervention as too severe.[520] 

There may be additional barriers for some older adults related to culture, language, or remote location.  

Older adults may also fear that they will not be believed or treated respectfully by professionals in the justice system, including police officers.  

In order to address these kinds of barriers, several police forces in Canada have developed specialized elder abuse units or services. The Vancouver Police, for example, in September 2007 launched an Elder Abuse Unit, modeled on and connected to its Domestic Violence Unit. In Ontario, there are Seniors’ Units in a number of cities, including Hamilton, Thunder Bay, Waterloo and Ottawa, and many other police services have specialized Elder Abuse Coordinators, who act as a resource and community liaison. 

Hamilton’s Crimes Against Seniors Unit (CASU) was the first specialized unit of its kind in Ontario, formed in March 2004. It consists of two Detectives who work from the Hamilton Police’s Victims of Crime Branch, supported by the three Seniors’ Support Officers who work in each of the three Divisions. 

The Seniors’ Support Officers have three key roles: developing and delivering education programs related to the safety and security of older adults; assisting in investigations of abuse and neglect of older adults; and co-operating with community services and other agencies to address issues related to the quality of life of older adults. These Seniors’ Support Officers are the initial point of contact for older adults.  

CASU is responsible for the investigation of crimes against persons who are 60 years of age or older, and who are victimized primarily because of their age. The investigations of CASU have included physical, psychological and financial abuse, neglect and self-neglect, and coroner’s investigations. The work of the Unit is dominated by investigations of financial abuse, which include frauds, scams and thefts, and theft by power of attorney. CASU has successfully investigated a number of high profile cases, including those of a son who used his power of attorney to obtain and gambled away the OAS and CPP payments of his disabled mother, an administrator of a retirement home who defrauded several residents, as well as her employer, of over a million dollars, a home care worker who stole from her client, and an unlicensed contractor who scammed numerous residents for roofing repairs that were never performed.  

The work of the CASU requires detailed knowledge of laws that police officers are not usually required to become familiar with, including the Consumer Protection Act, the Substitute Decisions Act  and Health Care Consent Act, the Trustee Act and the Succession Law Reform Act, and the law governing long-term care homes, and so involves the development of specialized skills and knowledge.  

The Unit works closely with various community agencies and services to ensure that all reported cases of assault, financial exploitation and neglect are properly investigated. The Unit has developed partnerships with the Community Care Access Centres, the Office of the Public Guardian and Trustee, the Alzheimers’ Society, local hospitals and financial institutions, the Canada Revenue Agency and the Ministry of Small Business and Consumer Services, among others.  

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5.                  Alternative Dispute Resolution Mechanisms

As noted earlier in this Chapter, there has been considerable interest expressed in the potential of alternative dispute resolution mechanisms such as mediation to benefit older adults in attempting to resolve issues arising in the context of ongoing relationships.  

However, concerns have also been noted about the imposition of mandatory mediation on older adults in some contexts. For example, under Ontario’s Residential Tenancies Act, care home residents who are facing eviction due to changing care needs must attend mandatory mediation, where the parties may contract out of their rights under the Act.[521]  While the provision may have been intended to benefit retirement home residents by mandating a less formal, adversarial and time-consuming process, given the power imbalances between the retirement home operator and the resident who is facing eviction, who may have significant health limitations, who may not be represented and who may not be fully informed of his or her rights, concerns have been expressed about the effect of this provision on older adults.[522]

One form of alternative dispute resolution is elder mediation. Elder mediation is a voluntary, non-adversarial dispute resolution process where one party to the dispute is an older adult. The process is specifically designed in order to facilitate the dynamics of older adults’ conflicts, and to generate solutions which respect both the parties’ ongoing relationship, and protect the older adult’s interests. Elder mediators typically have knowledge of ageing and the ageing process, and are so ideally situated to create processes which enhance older adults’ capacity to deal with conflict.[523]

Certain elder mediation programs mediate the diverse range of disputes which older adults face.[524] Other elder mediation programs specialize in certain disputes which older adults face more often than the general population. For example, some elder mediation programs mediate conflicts in caregiving arrangements.[525] 

Despite its potential, resolving conflicts through elder mediation can create risks for older adults. Older adults are often dependent upon the other party to the conflict, which will distort the power dynamic between the parties. If left unaddressed, the imbalance of power may mean that the older adult is not able to freely express his or her opinions, and that consent to any agreement may not be freely given.[526] Older adults are also more likely to have age-related illnesses which affect their ability to participate meaningfully in the discussions which directly affect them.[527] An elder mediation’s potential to create resolutions which respect the older adult’s autonomy and safety will then depend upon the elder mediator’s training, skills and judgment throughout the process to ensure the older adult’s free and meaningful participation.                

Preliminary experiences with elder mediation show this process has tremendous potential to increase access to justice for older adults, and to increase communities’ capacities to deal with conflicts involving older adults. When successfully established in a community, elder mediation programs provide a physically and emotionally accessible alternative for those older adults who face barriers in existing institutionalized dispute resolution processes. Preliminary experiences with the process have shown outcomes which enable older adults to recognize and respond to conflict, and generate solutions which maximize older adults’ dignity, independence and autonomy.[528] 

In Ontario, there are currently very few elder mediation services, and little research exists on these programs’ operation. Further research is necessary in order to assess the feasibility of introducing elder mediation programs across the province. Priorities for future research could include developing research methodology for evaluating existing elder mediation programs and encouraging the dissemination of information amongst agencies, and supporting pilot projects in specific contexts where older adults often encounter conflict and face particular barriers in enforcing their legal rights, such as in caregiving arrangements, responses to elder abuse, and applications under the Substitute Decisions Act.[529] 

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CASE EXAMPLE: ELDER MEDIATION

Waterloo’s Restorative Justice Approach to Elder Abuse

Restorative justice is a philosophy which responds to what society labels a “crime.” The philosophy emphasizes repairing the harm done to a victim and the community, in contrast to the criminal justice system’s emphasis on prosecuting and punishing offenders. A restorative justice approach to resolving conflict is distinct from many elder mediation programs discussed, as it identifies the parties to a dispute as victim and offender, rather than as disputants. The parties come to the table already having acknowledged their roles in the dispute in this way, and this relational orientation shapes the goals and results of the process.  Further, restorative justice shares greater similarities with transformative mediation than facilitative mediation, as the emphasis is on empowering the parties to move past their patterns of conflict rather than on reaching a resolution.

One example of the operationalization of the restorative justice philosophy as a response to elder abuse was developed in Waterloo, Ontario. Though restorative justice is different than elder mediation programs, it shares with these other programs an emphasis on increasing older adults’ ability to recognize and resolve conflict. 

The Waterloo program has existed in two different forms: first as a dedicated “circle” process, and now as a holistic team-based conflict management approach to responding to elder abuse and increasing older adults’ capacity to deal with conflict. 

Restorative Justice Circles

The program first operationalized the restorative justice philosophy in the form of “circles.” These “circles” were led by a trained facilitator, who brought together the people directly or indirectly affected by the conflict, discussed the issues and attempted to resolve the conflict. The program was led by a partnership between Community Care Access Centre of Waterloo, the Waterloo Regional Police Service, the Kitchener-Waterloo Multicultural Centre, White Owl (an association of urban Aboriginal persons), the Network: Interaction for Conflict Resolution, and Community Justice Initiatives of Waterloo.[530]

The restorative justice circles were offered at no cost to the parties to the dispute. In these cases, however, costs were likely not the most significant barrier that older adults faced to resolving the conflict, as if an older adult were to press criminal charges, the legal costs would be minimal. The emotional and relational costs would in contrast be significant.

In order to minimize barriers arising from the lack of familiarity with justice processes and legal rights among older adults, the restorative justice program undertook a specific educational program. This educational program went into the community in order to directly build relationships with older adults, and to give them the tools necessary to recognize the signs of elder abuse, and to encourage them to report this abuse. The program also did outreach with stakeholders who worked with older adults in order to educate them in the signs of abuse and to give them the resources necessary to encourage older adults to report the abuse.[531] 

Further, the program had broad community support, both from its partners and other organizations. The program was therefore ideally suited to inform older adults about this possible dispute resolution mechanism.

The restorative justice program recognized that ageism is one of the key barriers that older adults face in reporting elder abuse. The program adopted a restorative justice approach over any other, as they believed it particularly suited to employing an anti-ageist approach to conflict resolution. The program was designed in order to respond sensitively to age-related challenges, and the process was designed as physically accessible. These processes would facilitate older adults’ ability to come forward and share their experiences.

Because of its strong community ties, the program also had the potential to encourage anti-ageist perspectives in the mainstream justice system. The program worked with law enforcement officials, court staff, and Crown prosecutors, and this work had the potential to increase these stakeholders’ capacity to respond to ageing more appropriately. 

The program also worked with Crown prosecutors in some cases where charges had already been laid. The prosecution would refer these to restorative justice circles, with the possibility of charges being dropped if the process was successful.[532]  

The program’s process was designed in light of the reality that often the parties in elder abuse have a relationship of care and dependence, and that the older adult has an interest in continuing this relationship.[533]  Accordingly, the process shifted the emphasis from blame and punishment to one of responsibility and rehabilitation. The program also emphasized that the process would not result in punishing the offender, or removing him or her from the community. This decreased the fear that the process would destroy the relationship underlying the conflict. 

The restorative justice circles addressed an older adults’ conception of a dispute as private by making the process confidential. Unless charges had also been laid, the process would take place outside of the public scrutiny of the Court system. However, the program’s evaluation identified a key weakness as being a low referral rate, and attributed this to the fact that the issues were too sensitive and private for older adults to come forward. This suggests that in spite of the private and less rigid structure of the circles, older adults may still be reluctant to introduce outside scrutiny into their personal conflicts.[534] 

The circles emphasized healing and transforming relationships rather than punishment, and so the solutions were typically more consistent with older adults’ desires than the criminal justice systems. The circles provided an opportunity for the older adult to regain a sense of control that would be impossible in the criminal justice system, where victims often play only minor roles. The older adult was involved in all steps of the circle, including identifying the underlying issues and identifying the relevant parties to the dispute. Further, the older adult had the opportunity to speak his or her experiences in the way of his or her choice.

Given that the process was more consistent with some older adults’ conceptions of conflict, it was likely able to increase their willingness to resolve their conflicts in this way. The program did however considerably emphasize the complicated pre-circle process, and the evaluation found that this may have been an overly lengthy process. The evaluation recommended a simpler process, such as mediation.[535] 

The circle leaders were trained volunteers, who organized a pre-circle case development process, and then facilitated the circle itself. The mediators were trained in the restorative justice philosophy which would inform their practice. They also received training in the dynamics of elder abuse and how to monitor safety, and how to address older adults’ specific needs. Volunteers received ongoing education in case review, development, family dynamics and substance abuse. [536] The mediators were able to draw on training and knowledge from the variety of community groups who organized and supported the initiative. As they had access and connections with these groups, the mediators had the skills necessary to recognize their own shortcomings and refer older adults to appropriate agencies.

At intake, whether the risk of imminent harm had been addressed was one of the key criteria for intake. If there were imminent danger, the conflict was referred to other agencies as restorative justice was inappropriate. Since mediators had access to a broad range of community supports, they were able to recognize cases which required immediate intervention, and refer these cases to more appropriate service providers. 

The program’s facilitators received training in ageing, and the circles were designed to be accessible to individuals who may have faced accessibility barriers. Despite this training, one of the program’s shortcomings was a difficulty in completing circles. Many of the cases involved older adults with diminished mental capacity, and who had difficulty understanding the process and what was happening.[537] In cases such as this, the program recognized the limits of enhancing individuals’ ability to participate in the process, and that the circles were no longer appropriate. Though this recognition decreased the number of settlements reached, this may be less of a weakness than a recognition of the program’s limitations. 

Abusive relationships often have remarkably distorted power dynamics, where one party uses his or her power in an abusive way. Given this dynamic, power imbalances were always a particular challenge in the circle process. To address these, the mediators conducted pre-mediation sessions to identify all of the issues and began the process of recognition and healing prior to the circle. This context was important to restoring the balance as between the parties. Further, the process itself was physically structured in a circle shape so as to promote the idea of equality and balance as between the parties. The program also worked to equalize power imbalances by allowing all members of the circle to bring their “supporters,” such as friends or personal care workers. 

As the entire program was designed to respond to elder abuse, conflicts were not turned away because they involved situations of prior abuse. However, as already noted, if the risk of imminent harm persisted, other agencies were notified in order to address this risk. Situations where charges had been laid were also considered appropriate for restorative justice, with agreement from the Crown. In these cases, if a satisfactory agreement could be reached, there was the possibility that charges would be dropped. Restorative justice was also appropriate in cases where a criminal trial had already occurred, as the process could help with healing. The program also accepted what would be civil disputes.

The projects’ evaluation identified its greatest strengths as its educational component, and its strong network of community partners. These aspects contributed to an attitudinal shift towards elder abuse in the Waterloo community. This attitudinal shift in turn enhanced the community’s ability to respond to elder abuse, and created dispute resolution options for older adults which would maximize communication and healing. 

Participants to the program consistently reported that the process served the victim’s and the perpetrator’s needs. There was however concern that the process did not sufficiently acknowledge the injustice done to the victims.[538]

The program’s greatest weakness was its lack of referrals. As noted above, the program evaluators hypothesized that the reason for this was because these issues were too sensitive and personal. Through educational and outreach efforts, and building trust with stakeholders, the program could increase individuals’ capacity to deal with and respond to elder abuse, and to diminish the stigma attached to elder abuse. There is also however the possibility that no amount of education could encourage some individuals to resolve these conflicts in this conflict resolution process.

Elder Abuse Response Team

As the restorative justice program’s funding was running out, the program’s supporters reformulated their initial philosophy in an Elder Abuse Response Team (EART). The goal of this initiative was to translate the program’s successes into a more sustainable form, which would be able to reach more individuals. The program retained the principles of restorative justice; however, its operations shifted from the circle process to a more comprehensive conflict management strategy.

Currently, the program’s response after the intake stage is very flexible, and does not necessarily lead to a single conflict resolution process, as was the case in the circle process. The appropriate team members will meet with the older person wherever they feel most comfortable, and with whomever they believe should also be present.  From there, the staff will determine the best way of resolving the conflict. Because of its broad community support, the team can draw on a variety of available resources to help address and resolve the conflict. Only a handful of cases have ultimately been referred to the criminal justice system, suggesting that the conflicts are most productively managed in an alternative way.[539] 

The EART is very similar to the earlier restorative justice circles’ approach to increasing access to justice. Noted below are some differences in how program design affects the program’s ability to increase access to justice for older adults. 

The program’s earlier educational and outreach activities are ongoing, and part of the EART’s ongoing mandate is to mobilize community support and capacity to deal with elder abuse.[540] There was no problem of lack of referrals in the new EART, and these came from fourteen different sources, suggesting the program’s strong ties in the community.[541] By continuing to work with so many different community agencies, the program has the potential to increase the individual’s familiarity with his or her legal rights, and to empower individuals to recognize when they have been the victims of a wrong.

As already noted, contacting the EART does not automatically launch criminal proceedings, or now even a restorative justice circle. In this way, the older adult will not be deterred from seeking resources and information, out of a fear that this will threaten the ongoing relationship at the centre of the dispute. Contacting the EART does not automatically lead to a circle, but rather, to providing the older adult with information about his or her options, and support to pursue those options. This not only enhances the individual’s ability to him or herself manage conflict, but also gives the individual the ability to control the degree of third party intervention in the resolution.

Since the EART is not an elder mediation service per se, but rather a team which responds to conflict as the particular situation requires, it is difficult to determine whether it faces the same challenges as an “elder mediation” proper service. Its focus is on conflict management and responsiveness rather than a more rigid “mediation” program. 

This program’s success has depended on community partnerships. These partnerships mean that outreach efforts will be more effective and increase the community’s own capacity for recognizing and dealing with conflicts involving older adults. Further, this multi-agency approach increases the ways and manners in which the community can support older adults in their conflicts. 

The EART’s success as compared to the restorative justice circle’s approach can also be attributed to its flexibility. Whereas the restorative justice circles led automatically to a specific conflict resolution mechanism, the EART created a range of possibilities, and recognized that the circle may not always be the most appropriate means of resolving the conflict. Rather, the most appropriate means depended on the conflict and the older adult. For some this may in fact mean a circle, for others, a consultation in the individual’s home, for others a referral to another agency or group. This flexible mandate recognizes that each conflict is individual, presents different challenges, and therefore requires a different resolution process.

The flexibility of this dispute resolution service may hold particular potential in rural areas. In rural areas, it may be difficult to create dedicated “elder mediation” services, and so a more flexible approach may be necessary. Police services and community agencies may already have the tools in place to offer mediation as part of their services, and would require only a model and additional resources. The EART may be such a model.

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6.                  Advocacy Mechanisms

Advocacy mechanisms can provide an effective supplement to complaint-based enforcement mechanisms. Advocacy has been defined as “an activity which involves taking up the case of an individual or group of individuals as speaking on their behalf to ensure that their rights are respected and their needs are met.”[542] Advocacy may be individual or systemic; instructed or non-instructed; legal or social. Individual models of advocacy include, for example, Ontario’s Psychiatric Patient Advocacy Office. Systemic advocacy includes some aspects of the Ombudsman function, or potentially some aspects of the mandate of the reformed OHRC. Individual and systemic advocacy perform different functions in promoting the protection of rights, and both can make significant contributions to effective access to the law for older adults. 

The 1987 Report of the Review of Advocacy for Vulnerable Adults concluded that: 

The concept of ‘vulnerability’ can create a need for advocacy as the vulnerable are often dependent on others which will leave them susceptible to abuse, neglect or abandonment.[543]

Vulnerable adults, in this 1987 Report, included those whose physical, emotional or cognitive impairments made them dependent on others for care, impaired their ability to communicate, led to stigma and undervaluation by others, or resulted in institutionalization. The 1987 Report concluded that advocacy services, properly designed, could promote respect for the rights and dignity of vulnerable adults; ensure that rights are understood, recognized and protected; assist vulnerable adults to achieve self-determination; enhance autonomy and independence; and protect vulnerable adults from financial, physical and psychological abuse.[544]

The Ontario Bar Association, in its submission to the LCO, highlighted the potential of advocacy systems to benefit older persons, so long as they appropriately balance needs for efficacy and accessibility with protection of review rights and due process.[545] 

In ACE’s focus groups with residents of long-term care homes and their families, a consistent theme was the need for third-party advocacy:

ACE consistently heard that some form of third-party advocacy where advocates went directly to homes to meet with residents would be beneficial. Many residents stated that they were afraid to voice their concerns for fear of retribution or being labeled a troublemaker. A number of residents complained that their concerns were ignored until a family member became involved. Several family members explained  that they were only able to notice and prevent problems if they were at the home on a daily or regular basis.[546] 

As is highlighted in the Case Example below, ACE has recommended advocacy for long-term care residents, both on an individual and a systemic basis, through the establishment of a Health Care Commission, and the expansion of the jurisdiction of the Ontario Ombudsman’s Office.[547]

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CASE EXAMPLE: ADVOCACY MECHANISMS

Older People’s Commissioner for Wales

Wales recently established the world’s first statutory, independent Older People’s Commissioner. The establishing legislation was passed in 2006,[548] and the first Commissioner was appointed in the spring of 2008.  

The Advisory Group established to consider the development of such a Commissioner commented that, given the very wide range of services available to older adults in Wales, a Commissioner for Older People could play an important role by:

ensuring that, across these many service, older people’s interests and rights are taken into account. Through monitoring and representation he or she will seek to influence improvement and tailoring of services so that older people suffer no disadvantage in terms of access, delivery or outcomes compared to the rest of the population. He or she will be able to take on an ‘umpire’ role if , as a last resort, an older person is unable to find a public agency which is willing to lead on finding a solution to his or her problem with a service.[549]

The vision of the Older People’s Commissioner has been expressed broadly, as follows:

We want to see a Wales in which respect for the rights and dignity of older people is a practical reality in all areas of life, where age discrimination is a thing of the past and where a positive view of ageing and of older people prevails.[550] 

The Commission has an expansive mandate. The legislation empowers the Commission to: 

a)      promote awareness of the interests of older people in Wales and of the need to safeguard those interests;

b)      promote the provision of opportunities for, and the elimination of discrimination against, older people in Wales;

c)      encourage best practice in the treatment of older people in Wales;

d)      keep under review the adequacy and effectiveness of law affecting the interests of older people in Wales.

The Commissioner may also consider, and make representations to the Assembly about, any matter relating to the interests of older people in Wales.[551] 

It should be noted that the involvement of the Commissioner in individual cases is limited to cases of general relevance – even if there is no other body that can deal with the case. That is, this is a body whose mandate is entirely focused on systemic, rather than individual advocacy. 

The Commission has powers of entry and interviewing as part of its powers of review, as well as powers to require the provision of information. The Commissioner has the power to issue reports and recommendations, and to require written responses to its recommendations. It does not, however, have the power to enforce compliance with its recommendations; in this way, it functions like an Ombudsmans’ office.

To date, the Commissioner has:[552]

a)      undertaken an inquiry into the treatment of older people in hospitals, resulting in a major report that calls for “fundamental change” to ensure that older adults are treated with dignity and respect in these settings; hospitals have a fixed period of time to respond in writing to recommendations for change set out in that report;

b)      held public consultations to shape recommendations to the Law Commission of England and Wales’ project on reform of the law related to Adult Social Care;

c)      established an information service where older adults, together with referral and dispute intervention services;

d)      developed Policy Position papers on a number of issues, including elder abuse and the Attendance Allowance benefit; and

e)      developed a partnership with government departments administering pension entitlements to encourage and assist older adults in claiming their entitlements. 

The establishment of similar bodies has been considered in several jurisdictions, including Scotland and Australia.[553]

In its Research Paper for the LCO on Congregate Living and the Law as it Affects Older Adults, ACE expressed reservations about the use of such age-specific advocacy agencies: 

ACE does not support the creation of a specialized Seniors’ Advocate. While some jurisdictions, such as Wales and Australia, have limited their services to older adults, we do not believe this is the correct approach. We discourage a framework based on the perception that older adults lack capacity and need protection. Simply stated, older adults are people. ACE believes that all people navigating the health care system could benefit from the services of an advocate, regardless of age. We want to move away from ageist stereotyping towards a rights-based approach. Moreover, as there is no generally accepted definition of an older person, younger individuals residing in long-term care homes or in hospital would be precluded from obtaining assistance from a Seniors’ Advocate.[554]

In the view of ACE, while advocacy mechanisms are desirable, older adults living in congregate settings would be better served by the establishment of a Health Care Commission as an independent office of the Legislature which would be responsible for the oversight of health care advocates working in hospitals, long-term care and retirement homes. Based on the information provided by individual advocates, this Health Care Commission could undertaken systemic as well as individual advocacy.[555] While such a Health Care Commission would be of significant benefit to older adults, its mandate would be inclusive of all ages, and be defined by issues rather than age.  

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7.                  Oversight and Monitoring Mechanisms

Implementation and enforcement systems affecting vulnerable older adults would benefit from the consistent use of mechanisms to ensure accountability, transparency, and effectiveness. Because there is a lack of monitoring and oversight for many enforcement systems disproportionately affecting older adults, it is impossible to know the extent to which older adults have effective access to those laws, or are subject to abuses and violations of their rights. 

Public reporting requirements can be effective in inducing institutions to comply with the law, as well as making it easier to identify problems and abuses without the necessity for individual complaints. For example, ACE notes with respect to public reporting requirements for long-term care homes that: 

The available information is not up-to-date or organized in a manner which is easy to understand.  It also provides insufficient details about the actual infractions as it merely states which general criteria or standard was unmet.  Posting the actual inspection report (minus any identifying information about residents or staff) would be beneficial for several reasons.  First, it would be an impetus for homes to improve as the public would have greater access to detailed information and be less inclined to choose homes with a higher number of complaints and unmet standards. Second, it would benefit some homes by showing that their infractions were administrative in nature and not reflective of poor resident care.  The Ministry should look to other countries (e.g., Wales and Australia) which post significantly more comprehensive reports as examples.[556] 

Oversight mechanisms can also include, of course, direct government oversight through licensing or audit mechanisms. The new retirement homes regulatory mechanism, as described earlier in this Chapter, includes a licensing requirement.

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