5.2
The elder care act and the whole policy process around it do show that the position of the elderly who need care, and the rights and status of older people in general, gained some improved recognition. The setting up of councils for older people and the setting of time limits for receiving services for example, as discussed in chapter 4, justify this conclusion. During the process demands were raised also to recognize and improve the status of elder care workers and family caregivers; these however, while affirmed for example in the speeches of politicians, were not granted any new recognition or redistribution (discussed below) in the law itself, but rather ignored or postponed for future reforms of social policy and other laws.
However, the impact and the practical effects of the elder care act remain to be seen, and they are not clear because of the weak binding force and lack of sanctions in the act, and because it is largely focused on the level of improving the regulation and procedures of care provision. This can be considered a serious failing of the law, as the law was presented as a solution to a situation which was, arguably, caused in the first place not by a lack of regulation as such, but because existing laws and recommendations were not adequately followed. This was pointed out also by several commenters of the drafts, who argued that the law is necessary because municipalities have not really followed the regulations and recommendations concerning elder care this far. Opposition MP Rehula made the same point when he said that the law is actually the consequence of the fact that we have legislation which has not been adequately complied with (PTK 110/2012, Rehula). As discussed in chapter 4, many comments on the draft versions of the law critiqued the elder care act for effectively remaining on the level of recommendation.
Furthermore, the significance of the stricter articles was also critiqued as remaining void; for example, the obligation for local authorities to establish a council for older people ‘to ensure the older population’s opportunities to participate and exert influence’ (section 11 of the final act) was seen as unsatisfactory, and specification was demanded (C1, 50; C2, 3; C2, 4). Here the problems with the section were spelled out:
Regulating the problems away
[the statements of the councils for older people] will have no significant steering influence. Assume that the council for older people gave a statement in which it stated that the objectives of the elder care act are not realized in the municipality, then how would this statement influence decision making? […] The office-holder or the board can simply record the statement [as information for decision-makers]
without the issue being in any [other] way dealt with in the municipality. There is no obligation for the office-holders and municipal political organs to change the situation.
(C2, 87)72
The weak binding force of the law thus undermines the arguable gains in recognition attained through the process of preparing and passing the elder care act. Indeed, as Professor of Law Toomas Kotkas has argued, from the point of view of the judicial system, the elder care act ‘is a dubious law which does not (really) set up new rights or responsibilities’ (Kotkas, 2013, my translation). As the general national instructions for law drafting by the Ministry of Justice put it, law is not meant to be an instruction or a recommendation:
Law allows, entitles or obligates. ‘Regulations’ which are self-evident or which otherwise have no legal significance, must not be included in law. The Constitutional Law Committee too has in its statement (PeVL 37/2006) stated, that generally it is
‘not appropriate to accept in the form of law or any other statute [the kind of general provisions which are in their judicial binding force weak or non-binding]’. […]
Similarly, unnecessary and empty words must be avoided in legal language.
(Finlex 2013)
Evaluating the elder care act in terms of its legal adequacy and appropriateness would be a study of its own. But as the statement above by Kotkas indicates, and this research too suggests, the elder care act remains very weak. Karsio and Anttonen have made similar points and note that the law has been ‘heavily criticized as unlikely to impact positively on the quality and quantity of eldercare services. It remains to be seen, though, how it will actually affect elderly citizens’ access and right to services’ (Karsio and Anttonen 2013, 97). In their comments on the second version of the draft law, University of Tampere researchers also criticized the weakness of the law: ‘[It is problematic that] the law does not seem to create a right for the older person to the services s/he needs. […] The law would have real impact if it imposed that service needs which are determined in a professional estimation cause an obligation to the municipality to organize these services’
(C2, 89). The power of the law to influence the practices of elder care service provision thus remain on the level of symbolic recognition which might bring
72 All translations from the comments, documents and other data are mine, unless otherwise stated.
increased public pressure on the municipalities to act according to the ideals and objectives of the law. It remains to be seen if this will happen.
Considering the universal aspects of care, the inevitable need of care and the ubiquity of care relations (see chapter 2; cf. Thompson 2006), it must be asked: how were these recognized in the policy process of the elder care act?
Recognition of the scale of need and the amount of care that is being given and received, that is, those care relations that sustain society, were an object of discussion during the policy process when the role of family care was considered. Whilst in principle the promises of the elder care act apply also to family care situations, the reservations about concrete improvements apply to family care as well. Family care is a particularly significant form of care work, which according to recent research saves annually 2.8 billion euro in service expenditure (Kehusmaa 2014). Recognition of the magnitude and character of family care as something beyond a problem of governance was articulated by the Association of Care Giving Relatives:
And now that in a sense the truth about the amount of need we have has been revealed, nowhere is it possible to increase the professional care resources that much. […]
And somehow we have tried to emphasize it here that family care should not be treated from the viewpoint that it is sort of a phenomenon [to be politically governed], although we too treat it [like that], but first and foremost it is a relationship which is at the core here, and the family whose quality of life is at issue.
(I4, 17-18)
These kinds of considerations of how elder care relations and quality of life are tied together and how they could be better supported socially were not discussed during the policy process. Even if calls for more caring attitudes and respect for the elderly were voiced, no concrete measures or policies to support and allow for better integrated elder care within families were entertained.
Instead of this kind of wider understanding and recognition of elder care relations, the hegemonic discourse creates a picture of a care subject as an independent, consumer-like agent who plans for and takes care of her own care needs, has her needs professionally estimated and contracts for and chooses services as required. Here the question of how care is understood, what care is recognized to be about, or not, is what is at issue. What emerged in the process, even if mostly only implied, was in contrast with the ideas of corporeal interdependencies of care that care theory emphasizes (see chapter 2). The elder care act strengthens the municipality’s role in helping the elderly to keep fit and manage their own care needs with an eye to prevention of care needs. Not only were the pervasiveness of care relations, of family care and so on, obscured in the hegemonic logic, but also the possible contradictions inherent in marketized care (Hoppania and Vaittinen 2015)
Regulating the problems away
were not discussed, as the policy process left aside the question of production of services, invoking the bureaucratic division of labour as legitimation for not dealing with such issues in the drafting of the act.
However, it appears that it was precisely this narrowing down of the process that precluded an adequate understanding of elder care, and therefore prevented the law drafting process from being informed by such an understanding. Many actors in the field and commenters on the law did recognize that the way services are produced and arranged significantly shape the reality and availability of elder care services and the quality of those services – things that the elder care act was meant to influence. For example, marketization and outsourcing of services is a key factor affecting the production of services (as discussed in chapter 3). A civil servant at Valvira (the National Supervisory Authority for Welfare and Health) alluded to the contradictions of marketization and basic rights in care services, while discussing the marketization and commodification of services:
I see it as a kind of, well, what is it now… a perspective of profit, a perspective of business, a business has to make a profit, and if the starting point is this, then it is a different one from making sure that the basic rights of the customer are realized. […]
And [these two] can be in contradiction, and the basic rights might be suppressed.
[…] Or you have one person bringing in the meals, one cleaning, one coming in to give you an insulin injection, or something, and a third one doing something else.
And they all have your keys and they come to your place whenever. […] And then we see that we have these issues [arranged] like this and this, and now we rationalize everything.
(I8, 14, 16)
Some of the contributors tied similar worries to the investigation of service needs, an important stage in the process of attaining services (section 15 of the final elder care act):
If the investigation of service needs is sliced up so that different occupational groups view the elderly only through the perspective of their profession, [then] a holistic estimation of the physical, mental, social and spiritual needs of the client is not realized.
(C1, 7)
Some expressed worries about the development of home care services:
The current service structure model has commodified a set of home services and visiting nurse care into separately priced support services. These often turn into an economically impossible equation for the old person.
(C1, 35)
The old style home service was better for the service receiver in terms of holistic care.
(c1, 30)
This practical side of the development of production and organization of services crucially affects the quality and attainment of services. Reforms of how the system functions on the level of praxis are constantly in progress, and these new schemes of marketization, for instance, are part of the
’structural reform’ of elder care services. The elder care act, however, leaves them untouched, allowing them to proceed and take shape in the background so to speak. It seems then, that the recognition gained for elder care remains rather weak and limited, or on a level of purely symbolic declarations of commitment to the welfare of the elderly. And as Fraser argues, recognition itself is never enough; redistribution too must be present for social justice to prevail.