VI. DEVELOPING A FRAMEWORK FOR AN ANTI-AGEIST APPROACH TO THE LAW

VI. DEVELOPING A FRAMEWORK FOR AN ANTI-AGEIST APPROACH TO THE LAW2017-03-03T18:30:48+00:00

A.  Introduction

The goal of this project is to develop a practical evaluative framework that will be of assistance to legislators, policy-makers, advocates, service providers and private actors in:

  • understanding how laws and policies may affect older adults,
  • evaluating the effect of existing laws and policies, and
  • designing and implementing laws and policies that take into account the realities of the experiences and circumstances of older adults, and promote positive outcomes for these members of society.

The Framework will be the culmination of this project, and is intended to be usable as a standalone document, with the Final Report accompanying it as a resource for those seeking further information or illustration.  

This project has proceeded in tandem with a sister project to produce a framework for the law as it affects persons with disabilities. There are similarities and differences between the law as it affects older adults and the law as it affects persons with disabilities; therefore, the two final documents, while similar in many ways, will also have a number of differences both in approach and substance.  

The previous five Chapters have set out what the LCO believes to be the core analytical elements for an evaluative framework for the law as it affects older adults, including:

  • a basic account of key elements of the experiences of older adults that may shape the ways in which older adults encounter and experience the law, importantly including considerations regarding the diversity and individuality of older adults;
  • an understanding of the concepts of ageism and paternalism, and how these may operate in or through laws and policies;
  • a set of principles for the law as it affects older adults, as a means of articulating what the goals of the law as it affects older adults should be;
  • a description of the multiple ways in which laws may affect older adults; and
  • an analysis of the various barriers that older adults may face in accessing the law, together with some proposed strategies for addressing these barriers. 

As a further step, these analytical elements must be organized into a practical evaluative framework that is concise, coherent and relatively simple to use. A Draft Framework has been developed and is attached to this Report as Appendix A. This Chapter briefly considers some of the key issues associated with the development of the Framework. 

 

B.  Relating the Elements of the Framework

One of the key challenges in developing the Framework is to bring together the various elements outlined in Chapters I – V into a clear, consistent whole. For this, an understanding of the relationships between the various elements of the Framework is necessary.

1.            Relationships Within Elements

As was discussed in Chapter III, the principles for the law as it affects older adults are interdependent and must be understood in relationship to each other. Older adults are unlikely to achieve security if they are not able to express concerns and to act to protect themselves from exploitation, abuse or negative outcomes. For example, an older person who is heavily dependent on a formal or informal caregiver to meet his or her basic needs will have difficulty in acting to protect her or himself from abuse. In this way, the principles of security and of autonomy and independence are linked. As another example, negative depictions of older adults as needy, dependent, frail and non-contributing may not only undermine the principle of dignity, but may also lead to paternalistic perceptions that older adults are incapable of making decisions for themselves and thereby to policies that undermine their autonomy.  

Similarly, there are complex inter-relationships between the various aspects of the circumstances of older adults. Certainly, lack of income security will have wide-ranging effects on the living environments that older adults have access to, on their ability to participate in the community and on their overall health and wellbeing. The strength, or lack thereof, of the relationships of older adults with family and friends will affect their ability to live independently in the community, as well as their level of health and well-being.

 

2.            The Interaction Between Principles and Lived Experience

The principles and the experiences of older adults are interdependent and must inform and illuminate each other.  

It is the way in which older adults experience different aspects of life (law, education, employment, volunteer work, politics and “ordinary” everyday life) that is the impetus for developing the Framework. An analysis of the experiences of older adults may reveal where and how the law (and private action) has failed in conception or in implementation; it may also show where law and private practices have been successful. These experiences evidence where “society” – its structures, its organizations, its decision-makers, its priorities – has failed, where it is making progress and where it is trying to make advances. The experiences therefore point to the need for – and potentially the content of – the principles. 

As well, the experiences and circumstances of older adults provide the context for application and reveal how, through application, the principles are being interpreted. Our understanding of the principles must be grounded in the context of the experiences of older adults.

The principles can also be evaluated after a period of time to see whether they have been applied and if applied, whether they have been effective. As the circumstances of older adults change or are better understood, an analysis of those experiences may demonstrate that the principles may need to evolve.  

Thus in certain respects, the relationship between the experiences and the principles is a symbiotic one: each affects the other and each is capable of uncovering the truths about the other. To what extent are the principles responsive to the experiences and can they maintain currency with changes in the experiences? To what extent do we get a better understanding of the experiences through the lens of the principles and what challenges to responding to different experiences do the principles reveal?

 

3.            Applying the Principles and Circumstances to the Legal Framework

The principles and circumstances must be understood within the particular context of the current legal landscape for older adults. 

This landscape includes a range of laws that specifically target either older adults or the needs disproportionately experienced by older adults, such as requirements for drivers licenses for seniors, age-based income support programs, consent and capacity laws and laws regulating congregate living environments. These laws require attention to specific issues, such as the use of age as a category, ensuring access to justice for those whose living environments place them outside of the mainstream, and the impact of cognitive disabilities on interactions with the law. 

Importantly, applying the principles and circumstances to the legal landscape also requires attention to the many laws of general application that affect older adults differently, and in which the impact on older adults may not have been taken into account in design or implementation. This requires attention to how older adults and their circumstances may be made visible in the process of developing laws and policies, and in their implementation. 

It also requires attention to understanding and remedying the “implementation gap”, where good laws result in bad practice, and policies that are neutral or even positive on their face result in negative outcomes for older adults.

 

C.  Requirements for an Evaluative Framework

Any framework designed to guide the law as it affects older adults must have certain characteristics. 

First, given the complex inter-relationships between the principles themselves, and between the principles and the lived experiences of older adults, it must be holistic. Rather than dealing separately with each of the principles, or segregating the principles from the circumstances of older adults, the framework must bring the elements together, so that the principles are meaningfully grounded in the circumstances of older adults and in the current legal landscape.  

Secondly, given the breadth of the experiences of older adults and the many different ways in which they must interact with the law, it must be broad flexible enough to apply across contexts. It must have the capacity to address the experiences of older adults with the law in their sexuality, employment, living environments, family relationships, financial affairs and other areas. It must be capable of meaningful application both to laws directly targeted to older adults, and to those of general application that affect older adults differently or disproportionately.  

Thirdly, it must reflect the diversity of experience and identity among older adults. As older adults reflect the diversity of the population as a whole, this means that the framework must be able to encompass different ethnic and cultural identities, divergences in the experiences of men and women, differences in ability and impairment, and diversity in sexual orientation, citizenship status, family relationships and in age itself. As with the population at large, older adults may identify with a number of different communities at the same time. This diversity means that the law may affect older adults in different, complex and sometimes inconsistent ways. 

Fourthly, it must be sufficiently specific and practical to provide meaningful guidelines for the development of law and government policy, and to help develop processes to be implemented by the private sector to make the law effective. It must assist users in concretely understanding the implications of the principles for the development and evaluation of laws, policies and practices. 

Finally, it must be useable. Its structure, layout and language must be sufficiently simple and clear to encourage its easy use as a practical tool. Reference to the more comprehensive Report for further information and guidance must be made straightforward and simple.

 

D.  Some Comments on the Framework 

As was noted above, a complete version of the draft framework, including an explanation of the elements of the framework as well as the evaluative material, may be found in Appendix A of this Interim Report. 

It is important to note, given the complexity and diversity of the law as it affects older adults, the practical constraints that law and policy-makers operate within, and the constantly evolving nature of aging and our understanding of it, the aim of the framework is not to necessarily offer definitive answers to all of the difficult questions that arise in crafting law and policy affecting older adults; rather, the aim is to assist law and policy-makers in ensuring that:

  • a principled and consistent approach is taken,
  • the relevant considerations regarding the experiences and needs of older adults are taken into account, and that
  • potential sources of ageism and paternalism in the law are identified so that they may be addressed.  

The foundation of the framework is a series of open-ended questions, which are intended to ensure that the users have considered the key issues arising from the particular law, policy or practice, and have applied the principles and considerations in their analysis. As with the principles themselves, the questions apply to process and substance. The questions must be broad enough to apply to different contexts, but concrete enough to permit the application of the principles to particular contexts, as required, with only minor modification. There are questions that apply to all stages of law and policy making and those that are relevant for a particular stage. Although the questions are listed for each stage, it may be necessary to ask the same questions as the process continues.

For ease of use, the questions are broken down into six sections:

  1. Taking older adults into account in considering the potential effects of laws and policies.
  2. Learning about the law or policy which examines how we learn whether and how older adults are affected by a proposed or existing law or policy. 
  3. Identifying the older adults who may be affected by the law or policy.
  4. Evaluating how older adults are affected by the wording of the law or policy, including questions that consider whether the strategies selected for addressing the general purpose of the law or policy are consistent with the principles, and take into account the circumstances of older persons.
  5. Understanding how older adults are affected by the manner in which the law or policy is implemented, which asks questions that will assist in evaluating whether in practice the law or policy is having the intended effect and is having a positive or negative effect on the lives of older adults.
  6. Monitoring and evaluating the law or policy, once implemented. Monitoring and evaluation of laws and policies naturally connects to reviews of laws and policies, leading back to the first section and pointing to the need for regular reassessment of laws and policies. 

This ordering of the evaluative questions is intended to provide a logical structure for analysis of laws and policies. However, to some degree, any division is artificial: process cannot be neatly divorced from substance, nor purpose from implementation. There is inevitably some degree of overlap between sections. 

It is also important to note that, given the wide range of laws and policies that may affect older adults, not all sections or questions will be equally relevant to all laws or policies.  

The LCO will be consulting with a broad range of stakeholders, including older adults themselves, on the Draft Framework, and will incorporate the feedback received into a Final Framework, accompanying the Final Report on the project.

 

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