Laws generally begin with an issue, large or small, that is perceived to be of concern and that needs to be addressed. The purpose of a law may be explicitly identified, for example in a preamble, or may be implicit in the provisions. While in practice, a law may or may not achieve the goals set out for it, the purpose(s) of the law and the assumptions that underlie that purpose (or purposes) will shape the general approach of the law. This section sets out considerations for evaluating the purpose of a law against the principles.
Applying the Principles to Step 3
Note: “Law” here refers to law, policy and practice as appropriate.
The overall goal or purpose of a law will of course profoundly shape every aspect of that law, and will itself be shaped by a set of underlying assumptions or values. In the case of laws that directly target persons with disabilities, many of those assumptions and values will be directly associated with disability, while for laws of general application, they will be less directly connected with disability, but still influential in terms of the impact of the law on persons with disabilities. Those assumptions and values may be positive for persons with disabilities, or they may be influenced by ableist attitudes and assumptions. For this reason, it is very important to carefully evaluate the purpose(s) of a law, and the underlying attitudes against the principles.
Most commonly, any law will engage multiple principles, particularly since the principles are interdependent. Frequently, the principles will support each other; for example, initiatives that increase the inclusion and participation of persons with disabilities will generally also thereby promote respect for their dignity and worth. However, sometimes two or more of the principles may be in tension with each other in a particular case. An initiative to facilitate the right to live in safety might, in some cases, be framed in such a way as to decrease the independence or autonomy of persons with disabilities. In such cases, careful thought must be given to analyzing and responding to this tension. The analysis of the relationships between the principles may be relevant at any of the steps in the evaluation process.
QUESTIONS FOR CONSIDERATION IN APPLYING THIS STEP
1. How does the purpose of the law take into account the variance in capacity and abilities among all individuals, including how this may vary over the life course?
2. What assumptions about persons with disabilities underlie the purpose of the law? How does the law recognize persons with disabilities as persons of worth, value their contributions, and treat them as of equal value with other members of society?
3. How does the law take into account the actual needs and circumstances of persons with disabilities, and respond appropriately?
4. How does the law take into account variances among persons with disabilities, whether arising from their life courses, differences in their experience of impairment, or intersecting aspects of their identity such as gender, racialization, sexual orientation, Aboriginal identity, age, citizenship, socio-economic status, marital or family status, or other aspects of identity?
5. How does the purpose of the law enhance the ability of persons with disabilities to be meaningfully involved in their communities, be civically engaged, and to be heard on issues that affect them?
6. How does the purpose of the law address potential abuse, exploitation, mistreatment or victimization of persons with disabilities?
7. How does the purpose of the law foster the ability of persons with disabilities to make choices for themselves, including by providing appropriate supports?
8. How does the purpose of the law enhance the economic or personal independence of persons with disabilities, and provide support for such independence as required?
9. How does the purpose of the law recognize persons with disabilities as members of the broader society, and support their ability to take on the responsibilities associated with such membership?
10. Are there tensions between any of these considerations, so that satisfying one may threaten to undermine the realization of another? If so, have you considered:
a. Whether there are broader contextual issues (such as a lack of appropriate resources) causing the tensions between principles, and if so, whether these issues can be addressed to resolve the tension?
b. Whether there are approaches to the issue that will permit either complete or at least partial achievement of both competing principles?
c. Which of the potential approaches will best advance substantive equality for persons with disabilities?
d. Have persons with disabilities been consulted in determining how to resolve the tensions?
APPLYING THE FRAMEWORK: EXAMPLES OF THE RELATIONSHIP BETWEEN THE PRINCIPLES AND THE PURPOSE OF THE LAW
Ableism and the Laws Regarding Legal Capacity
Ontario has a complex web of laws that address situations where individuals, because of a disability, are adjudged to have lost the capacity to make certain types of important decisions. This legal framework is based on a system of substitute decision-making, to occur in the best interests of the person lacking legal capacity. There are difficult issues raised by these laws and multiple perspectives. On the one hand, some see these laws as a careful balance between the security and autonomy of persons with disabilities which, if properly implemented can promote the well-being of persons with diminished legal capacity. On the other hand, many persons with disabilities have long raised concerns about the assumptions that underlie both the substance and the implementation of the law. As Michael Bach and Lana Kerzner outline, the law is believed by some to embody presumptions about the abilities of persons with intellectual or cognitive disabilities that are based on unexamined assumptions and undermine their recognition as full persons, thereby undermining the principle of dignity and worth. Because the law removes the power to make certain decisions from persons who are found to lack legal capacity, it has a very significant effect on the independence and autonomy of those persons with disabilities who are affected. Many persons with disabilities, particularly those with intellectual disabilities, have therefore advocated for a shift to a system of “supported decision-making” as advancing these two principles by better reflecting the manner in which people make and communicate decisions, as well as empowering persons with disabilities in fundamental aspects of their lives.
See LCO Commissioned Research Paper, Michael Bach and Lana Kerzner, A New Paradigm for Protecting Autonomy and the Right to Legal Capacity (2010)
Community Treatment Orders and Tensions Between Principles
Community Treatment Orders (CTOs) were introduced in 2000 to provide physicians with a means of mandating that mental health patients discharged from hospital pursue community treatment in order to prevent the need for further hospitalization. These orders are intended to address the “revolving door syndrome”, that is, a person with serious mental illness is admitted to a psychiatric facility where she or he receives treatment and her or his condition improves, but when discharged into the community, he or she discontinues treatment and his or her condition deteriorates until she is once again admitted to hospital. That is, the purpose of the law addresses the principles of living in safety and the principle of social inclusion and participation (in the sense of facilitating discharge from hospital back into the community).
One of several conditions for the issuance of a CTO is the development of a community treatment plan that is agreed to by the physician issuing the CTO, the patient or his or her substitute decision-maker, and the community agencies that will be providing services under the plan. The patient or his or her substitute decision-maker must give informed consent to the plan. In this sense, CTOs are entered into voluntarily. However, the reality is that consent to a CTO is often a condition to being released from hospital and this is a powerful incentive for many patients to consent. Further, failure to comply with a CTO may result in apprehension by the police and involuntary readmission to the hospital. These requirements are intended to facilitate living in safety and the ultimate goal of social inclusion and participation, but they mean that although strictly speaking the CTO regime is voluntary, it may be considered to contain a significant degree of coercion. In this way, CTOs may both support and undermine the principle of autonomy and independence, depending on one’s understandings of the principle – illustrating some of the difficulties in applying the principles. There is therefore a tension between principles in this policy, one which runs through much of mental health law, and is a subject of ongoing debate and discussion.
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