To some extent this may be ameliorated by the use of flexible interpretative approaches to statutory definitions, as is evidenced by the evolution in the interpretation and application of the definition of “disability” in Ontario’s human rights law. Nevertheless, the disjunction is both striking and troubling.
What can explain the continued dominance of biomedical and functional definitions in legislation affecting persons with disabilities?
No doubt some of this is due to the power of the biomedical mindset, which remains the “commonsense” and dominant viewpoint in popular understanding. Programs and policies take as their starting point, not the development of a barrier-free society, but the amelioration of the disadvantage experienced by persons with disabilities. If this is the starting point, it is almost inevitable that programs must begin by identifying who, exactly, is to receive assistance.
As well, functional definitions allow policy developers and program administrators to focus scarce public resources on the most “deserving” persons with disabilities, those with the most “serious” or “substantial” needs or disadvantages. Functional criteria allow program providers to manage their caseloads and allocate their resources.
Perhaps just as importantly, many definitions of disability effectively operate as eligibility criteria for access to government programs and benefits. Functional definitions of disability are easy to administer. They can provide clear and easily determined answers to the question of who should be able to access a program or benefit. Decisions can be simply explained and made by persons with minimal training.
It is difficult to find models of legislation and programs that have thoroughly operationalized a social model of disability. A legislative shift from a functional definition to a social one requires a thorough re-imagining of assumptions and procedures. It may be a matter, not of answering questions differently, but of asking quite different questions. In the human rights context, a shift from a functional to a social definition of disability required that fewer questions be asked regarding the nature of an individual’s condition, and more asked about the nature and extent of the disadvantage experienced by persons with disabilities. Similarly, the provisions of the ICRPD regarding decision-making envision less focus on determining the “capacity” of individuals and more on the supports that individuals can be provided in order to maximize their autonomy.
All this raises many questions, some of which go to the heart of how the law interacts with persons with disabilities. The LCO welcomes your comments and thoughts related to the following three general areas:
Identifying the conceptual approach(es) to disability that should inform the LCO’s framework for the law as it affects persons with disabilities:
This Paper has identified a number of conceptual approaches to understanding and defining disability, and provided some starting points for considering how these approaches may shape the law as it affects persons with disabilities.
What are the advantages and disadvantages of the various approaches as bases for the development of laws affecting persons with disabilities?
Is it necessary to have a single conceptual approach to disability as a basis for the law, or may there be a place for multiple or mixed approaches?
If so, what contexts, considerations or principles should be taken into account in selecting a particular approach to disability as the basis for a particular law or program?
Experiences with the law and the various approaches to disability:
The LCO is interested in hearing about your experiences with legislation, regulations and programs embodying the various conceptual approaches to disability outlined in this Paper.
If you are a person who has attempted to obtain access to rights and benefits under these laws and programs, or an advocate on behalf of persons with disabilities, does the approach to defining disability in a law or program affect your ability to effectively obtain access? If so, how?
If you are a person or organization responsible for developing or applying the law as it affects persons with disabilities, what are the practical implications of the different conceptual approaches in terms of the implementation, application and enforcement of laws and programs?
Implementing the social model:
As this Paper outlines, while the social approach has been adopted by many policy makers and advocates, as well as in some key Supreme Court of Canada decisions related to disability, statutes and government programs generally continue to rely upon bio-medical or functional approaches to disability. There are few examples of statutes and programs that are based on a social approach.
Are you aware of laws or programs that are based on a social approach? What are the key features of these laws or programs?
What changes to the scope, mandates, eligibility criteria or other features of current legislation or programs would necessary in order to implement a social approach?
Are you able to identify significant barriers or challenges to the development of a legal framework based on a social approach?
These questions are not meant as to be exhaustive, but as a starting point to trigger comments and further questions. The LCO welcomes your comments and questions, both on the specific questions raised, and on other issues arising from this Paper.
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