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Respect Your Elders

Respect your Elders: A study into the Human Rights Issues and Abuses affecting Older People in Ireland today

by Joanne McInerney Solicitor & Notary Public for University College Dublin May 2013

Introduction

The ageing worlds most important challenge is to ensure the enjoyment of the human rights of older people.[1]Older people living in Ireland today face distinct and diverse challenges to live in a society which proclaims to uphold their fundamental principles of human rights; respect, fairness, equality, dignity and autonomy. This is not a recent phenomenon but has gained increased attention in recent decades as a result of numerous international workings and declarations together with valuable reports and studies carried out by non-governmental organisations.

By way of background, the human rights issues facing older people first came to public prominence in 1982 at the Vienna International Plan of Action on Ageing.[2] Here the first international document devoted to the human rights issues of the ageing and older people evolved and this document was later endorsed by resolution 37/51 of the UN General Assembly.[3] This document later provided a blueprint for the UN Principles of Older People which was endorsed by resolution A46/91 of 1991 UN General Assembly.[4] By 2002, the Madrid International Plan of Action on Ageing [5] had emerged containing therein a large emphasis on the values of health and wellbeing alongside the importance of enabling environments, free from age discrimination for older people and this plan later emerged into a political declaration. This declaration has heralded the beginning of a new thinking behind the human rights of older people and one which should be based on human rights based approaches for the development of all current and future plans, policies and laws which concern the lives and welfare of older people. The writer will argue that notwithstanding these advances to date, the time has now come and is in fact long overdue for a specific UN Convention on the Rights of Older People. Such a convention must be built around enhancing the protection, participation and promotion of older people in society today (Magret: 2013).

Difficulties in defining Older Persons

There have been numerous difficulties in agreeing and framing policies to protect the human rights of older people and these difficulties have not been helped by the lack of a clear definition as to what constitutes an older person. [6] Some sources indicate this to encompass a person over the age of 60 years[7], while other more abundant sources equate same to a person aged 65 years or older, with the distinction of persons over the age of 80 years to be designated as the very old. In Ireland, the demographic portion of society making up older people was identified as being 535,393 persons or 11.7% of the total population in the 2011 census. [8] Internationally, it is estimated that 760 million people are currently over the age of 60 and by 2050 this will have risen to 2 billion.[9]

Older people are by their nature more vulnerable and susceptible to forms of human rights abuses which can be categorised as physical, sexual, psychological, financial or material and neglect. [10] Unfortunately, at present there is little data or information available as to the extent of human rights abuse experiences by older people however reports and surveys have been commissioned which has shed much light on the nature of the abuses in question and their frequencies. From my research to date, the living arrangements of older people in Ireland today can be placed into four different categories; 1) those living on their own independently, 2) those living at home with the help of a part-time outside independent or family member carer, 3) those living with a family member carer, 4) those living in nursing or residential settings including institutional centres requiring full-time care. Each living arrangement carries with it its own particular set of conditions and potential risks that could led to significant breaches of an older persons human rights.

Human Rights of Older People

Internationally, the human rights of older people are protected under the civil and political rights of the International Covenant on Civil and Political Rights (ICCPR) [11] and the economic, social and cultural rights contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR) of the United Nations.[12] Throughout all of the human rights listed, there is a large degree of interdependency and intersectionality between the rights contained. The rights protected vary from those of an absolute nature which can never be interfered with such as the right to life [13] and the right not to be treated in a degrading or inhuman way[14] , to those of a non-absolute nature. Such limited rights can only be interfered with in a lawful manner that is proportionate, where there is a legitimate aim e.g. the right to liberty[15] and the right to privacy.[16] In Ireland, although various UN treaties and declarations have legal and persuasive effect respectively, the main source of legal protection for human rights lies within the European Convention on Human Rights (ECHR)[17] and the Irish Constitution of 1937 [18]. In recent years, the path to Europe through the European Court of Human Rights (ECtHR) has often been more effective than seeking a national remedy in reliance on the Irish Constitution particularly since the enactment of the European Convention on Human Rights Act 2003.[19]

At European level, cases have occurred of older persons seeking to enforce their human rights such as the right to life where life saving medical treatment was withheld from an older man. This failure to provide life saving medical treatment in Dodov v Bulgaria[20] was compounded by the state?s neglect and insufficient supervision which was held to constitute an abuse of article 2 of the Convention.[21] The right of an older person to a fair and expeditious judicial determination was considered in Jablonska v Poland[22] , where the issue of delay in proceedings was found to be unfair given the age of applicants and in violation of article 6 of the ECHR[23]. A recent challenge, although unsuccessful was taken by an 84 year old woman in HM v Switzerland[24], against her confinement on the grounds of her right to freedom from arbitrary detention under article 5 of the European Convention. The relevance of the above listed sample cases from the European Court of Human Rights is to link the various human rights as against the human rights abuses suffered in everyday life by older people within their residencies and in society as a whole.

Human Rights Abuses of Older People

Within nursing homes and residential settings, instances of violence are often reported and such incidents can comprise of pushing, shoving and pinching to more discrete forms of neglect, malnutrition or even lack of medical treatment. Such abuses are clearly in violation of an older persons right to freedom from torture and inhuman treatment as guaranteed under article 3 of ECHR.[25]?The British Institute of Human Rights (BIHR) has highlighted specific instances and evidence of such human rights abuses of older people within the United Kingdom. These reported instances are extremely useful in gaining an insight into the nature of the various human rights abuses which occurred with the UK and these occurrences could easily be transposed into an Irish setting also. The right not to be subjected to cruel or degrading treatment[26] was evoked in the case of an older woman who was strapped to her wheelchair against her wishes in a hospital to prevent her walking around in case she fell and hurt herself.[27] The BIHR also found evidence of the occurrence of tilting chairs backwards in an NHS nursing home in London to prevent the residents from walking around, which resulted in the residents inability to go to the bathroom unaided, in violation of their rights to privacy under article 8 and also the right not to be treated in a degrading way under article 3 of ECHR. [28]

Situations involving an older persons right to family life[29] have been highlighted by the BIHR, in particular in the case of an older couple in the UK who were separated after sixty five years together, when the wife was refused a place in the residential home where her husband had been admitted into after he fell ill. There has also been evidence of breaches of the right to family life by such homes unfairly restricting the visiting hours of family members. The ECtHR has ruled that the right to family life also constitutes gay and lesbian relationships (Hodson : 2011) and this will undoubtedly have to be taken into consideration where an older gay or lesbian couple wish to reside together as a family in any nursing or residential setting. The right to privacy[30] of older residents has also been called into question by the use of excessive video or CCTV surveillance within such nursing or residential homes for older people. While such surveillance may be necessary to monitor residents in case of their injury or illness, same must be balanced against the rights of the residents to their privacy and also their right to partake in private relations with other members of such residences without abuse of their right to privacy. The BIHR further documents human rights abuses including residents being left in their own waste for long periods, routine over-medication aimed at keeping residents docile, persistent rough handling of fragile residents and misuse of resident’s money. [31]

The UN Convention on the Rights of Persons with Disabilities

Following on from the right to the highest attainable standard of physical and mental health as set out in article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the human rights of older people with disabilities have been enhanced by the UN Convention on the Rights of Persons with Disabilities (CRPD).

The ratification of this convention has brought a more human rights based approach to the plight of the disabled person and the state’s obligation under this convention to ensure access to the physical environment under article 9, and to take effective measures to ensure personal mobility with the greatest possible independence under article 20.[32] Also of relevance to the aspects of nursing home care provided, is the availability of activities and social stimulation as set out under article 26. [33] By way of preventative obligations, the state must also take appropriate measures to protect people with disabilities from exploitation, violence and abuse.[34] Although, it is the case that many older people will suffer from some form of disability e.g. dementia or immobility, this convention is not sufficient on its own to protect the human rights of older persons simpliciter. Of graver concern however, is the fact that the CRPD has not been implemented or even ratified yet in Ireland. As such, this convention can only have persuasive effect on the moral conscious of the Irish state and will most likely continue in such an inadequate legal capacity until such time as it is implemented and can be adhered to.

Discrimination & the Right to Work

The right to equality and freedom from discrimination[35] is also of particular relevance to older people. Ageism as a form of discrimination is not specified as a discriminatory ground in the European Convention on Human Rights, and so in order to make such a claim the older person must make their claim of discrimination under other grounds. This normative gap in the law is unacceptable and particularly when one views the plight of the older male in society given that the protections extended to older women under article 11 (e) of the Convention on the Elimination of All Forms of Discrimination against Women. That said it is often times the case that it will be the older females in society that may suffer discrimination to a greater extent than their male counterparts. Many older women in society who notably due to their age, may not have had the opportunities to work outside the home and instead focused on raising a family, may have been left in a precarious financial position with a lack of skills and/ or knowledge about their rights and how to seek to enforce same.

The only legal framework that deals with ageism as a discriminatory ground relates to employment law. The irony of this position is that it is the very mandatory retirement ages throughout the world and in Ireland, that discriminate against the older persons right to work if they so wish or should they so need to for financial reasons. Within public service positions throughout Europe, mandatory retirement ages are still enforced, with the result that many workers are forced to exit the workplace after reaching a certain age. This position has been challenged at European and international level in particular cases from the United States such as Murgia[36] as followed in Gregory v Ashcroft[37] and Kimel v Florida Board of Regents.[38] Closer to home, the high court case of Donnellan v Minister for Justice[39] followed suit, where the assistant commissioner, Martin Donnellan unsuccessfully sought to stay on as a senior officer in the Garda S?och?na after he reached the mandatory retirement age of 60 years. This ruling appears to have confirmed the Irish position on the subject. With regard to the pension or social security rights[40] of older people the state has a positive obligation to protect employees? pension entitlements in the event of the company being insolvent as per the recent Waterford Crystal workers case to the European Court of Justice brought by Unite under the 2008 EU Insolvency Directive.

The way forward for older workers to stay in employment (should they so choose) may be to encourage their participation in the workplace and to seek to introduce flexible working hours and options to facilitate them. The government and society should also encourage older people to get involved in other work environments such as voluntary work within their communities or voluntary learning schemes, which has been shown to reduce an individual’s sense of isolation while also contributing to the economic, social and cultural well-being of the community as a whole.

The Legal Position in Ireland?

The position internationally is that in the absence of a specific Convention on the Rights of Older People, the legal position is that the human rights of older people can only be governed by whatever relevant sections they can fall under within existing treaties such as the UN Declaration on Human Rights (UNDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the UN Convention on the Elimination of All Forms of Discrimination Against Women, the UN Convention on the Rights of Persons with Disabilities, the European Convention on Human Rights or the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. This fragmented approach could not possibly enhance or protect the rights of older people who have quite distinct and specific rights and vulnerabilities that require protection. The position in Ireland is that remarkably Ireland has only ratified the ICCPR, the ICESCR and the UN Convention on the Elimination of All Forms of Discrimination against Women. As such if an older person wishes to enforce a human right protected outside of these three treaties they cannot do so as all other treaties while unenforceable can only have persuasive effect.

Closer to home, one would think that this implementation gap could be remedied by the protections offered to the Irish older person under the European Convention on Human Rights (ECHR). There are large benefits to seeking to enforce ones human rights under the ECHR given that the European Court of Human Rights (ECtHR) can hear and adjudicate on same and particularly since the enactment of the European Convention on Human Rights Act 2003, which gave recognition to the ECHR within the Irish domestic courts. However, the difficulty is that the 2003 Act has only given legal recognition within Ireland to the civil and political human rights guaranteed under the European Convention and not to the economic, social and cultural human rights within. This imbalance of legal recognition creates another anomaly in this area resulting in a disparate lack of legal certainty, where it is not possible to be an active citizen and enjoy civil and political rights without appropriate economic, social and cultural rights.[41] This lacuna in the law is most unjust and likely to affect a great number of older people whose human rights are more frequently of an economic, social or cultural nature. It is for this reason that not only is a UN Convention on the Rights of Older People necessary, but so also is its ratification under Irish law.Relevant provisions together in one text, as was done successfully for the rights of women, children and disabled people, would bring clarity to both the nature of older persons rights and the responsibilities necessary to protect them.[42] Such implementation would also provide for the appointment of a UN Rapporteur for Older Persons to monitor and report back to the UN on the conventions workings.

Conclusions & Recommendations

In everyday life, older persons particularly in nursing/ residential accommodation can face a lack of resources, which in turn leads to a lack of information surrounding their human rights. Too often they can be afraid to demand proper care by not wanting to cause a fuss. Within society, older people can feel isolated and out of touch with the modern world. Older people have difficulty accessing their human rights because of widespread perceptions and misunderstandings about what it is human rights constitute and stand for within the general public, for example many older people associate human rights issues with prisoners in custody as opposed to their own rights to certain clear standards of welfare and care in society. Older persons may find it hard to access justice and to make official complaints oftentimes due to a fear of what the consequences might be to their complaints. This lack of confidence in the system is not helped by there being no independent monitoring system in place in either private or public nursing homes as the HSE and HIQA, both government bodies oversee the operation of both systems. Communications issues can arise where older people do not know how to access the relevant complaints mechanisms in place, legal aid providers and non-governmental providers, who could facilitate them without exposure to a legal costs issue.

The European Convention on Human Rights, not only protects the human rights therein, but it also places a positive obligation on states to seek to prevent such rights abuses occurring while also seeking to frame their human rights policies within a human rights based approach setting. The way forward in the creation and implementation of new standards and laws relating to older people can only be done following human rights based approaches and in particular a greater concentration on accountability and participation factors in creating same. With the older persons right to the highest attainable standard of health comes the responsibility of states to establish mechanisms that facilitate and enable participation in health-related planning, policy-making, implementation and accountability. [43] Participation by older people in the formation and framing of policies and laws that affect them will lead to their empowerment. There are various forms of participation that can be pursued which would ensure that such laws and policies are not created solely by professionals removed from the reality of the life situation of the older person in society. Such active and informed participation will led to effective monitoring and evaluation of the pros and cons of such policies, where at present there is none. From these approaches, accountability can be achieved. These accountability mechanisms provide a forum for explanation and justification,[44]?such as courts, human rights institutions, public hearings and meetings through which real remedies will be available such as restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Studies have shown that such fair and transparent monitoring would be best served through forms of responsive regulation that would encompass a hybrid form of hard and soft law.[45]

We all aspire to live into our senior years and to advance into an older age with financial security, surrounded by our family and friends; receiving the best medical care available should we require same. We anticipate that we will be treated with respect and dignity by society on account of our clear knowledge and wisdom of years and life experiences. Sadly, oftentimes, this is not the case. In reality, these idealisms have been tainted by evidence of regular and varied forms of human rights abuses of older people. Article 1 of the UNDHR states that all human beings are born free and equal in dignity and rights.[46] However the unpalatable truth is that far too often the human rights of older people may only extend to palliative care. It is hoped that by highlighting a sample of such human rights issues and abuses, that their future occurrences can be prevented or at least curtailed to a greater extent.

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