Friday, October 6, 2017

IOPHRI - International Human Rights Index for Older Persons

Since the nineteenth century, the world’s population of older persons has increased dramatically. Older persons now comprise nearly twenty percent of the world’s population, and will likely comprise nearly thirty percent of it by 2040. Because of this increase, there has been a surge of interest in the development of Composite Indicators aimed at measuring the well-being of older persons. However, there has not yet been an effort to create an index that attempts to measure, compare, and evaluate the rights of older persons on a global-scale. In a recent Article, Professor Doron and Dr. Spanier justify the need for, and the process of developing, an index which looks at these rights. Their index is to be named the International Older Persons’ Human Rights Index, or “IOPHRI”, and it will be the first of its kind.
For the full text of the article and index and for a real life example of the operation of this index see the following link:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2916577

Thursday, September 21, 2017

Do older women have the right to sex? The Case of Carvalho Pinto de Sousa Morais v. Portugal - ECoHR

Elder rights as such are not part of the European Convention on Human Rights. However, through different other articles of the European Convention for Human Rights, throughout the year, the European Court of Human Rights has addressed and promoted (but sometimes restrained) the development of human rights of older persons.
In a recent decision (25 July 2017), the ECoHR made an interesting decision, which touches upon both sexism and ageism as well.
The short facts of the facts were as follows:
The applicant was born in 1945. In December 1993 the applicant became a patient at the gynaecology department of the Alfredo da Costa Maternity Hospital. On 9 December 1993 the applicant was diagnosed with bartholinitis, a gynaecological disease. She started treatment, and On 21 May 1995 the applicant was admitted to the CHLC for a surgical procedure  and on 22 May 1995 the applicant had both glands, on the left and right sides of the vagina, removed. On an unknown date after being discharged, the applicant began to experience intense pain and a loss of sensation in the vagina. She also suffered from urinary incontinence, had difficulty sitting and walking, and could not have sexual relations. Later on, the applicant was informed after being examined at a private clinic that the left pudendal nerve had been injured during the operation.
On 26 April 2000 the applicant brought a civil action with the Lisbon Administrative Court against the CHLC under the State Liability Act seeking damages of approximately 325,050 euros (EUR), of which PTE 50,000,000 (EUR 249,399) was in respect of non-pecuniary damage owing to the physical disability caused by the operation.
As to the merits, the Lisbon Administrative Court found that the surgeon had acted recklessly by not fulfilling his objective duty of care, in breach of leges artis, and established that there was a causal link between his conduct and the injury to the applicant’s left pudendal nerve. The Lisbon Administrative Court also established that it was that injury which caused her, among other problems, the pain and loss of sensation in the vagina and urinary incontinence. As a consequence, she had difficulty walking, sitting and having sexual relations which, all together, made her feel diminished as a woman. Consequently, the applicant was also depressed, had suicidal thoughts and avoided contact with members of her family and friends. For those reasons the Lisbon Administrative Court considered that the applicant should be awarded EUR 80,000 compensation for non-pecuniary damage. As for pecuniary damage, the Lisbon Administrative Court granted EUR 92,000, of which EUR 16,000 was for the services of a maid the applicant had had to hire to help her with household tasks.
This decision was appealed, and for the purposes of this short summary, the following text of the Appeal court's decision as to reduce the damages:
"Additionally, it should not be forgotten that at the time of the operation the plaintiff was already 50 years old and had two children, that is, an age when sex is not as important as in younger years, its significance diminishing with age."
In light of this justification for the reduction of the damages - the application was made to the ECoHR. The relevant articles were Article 8 (re the right to private and family life); and Article 14 (re anti discrimination).
We will not get into all of the ECoHR discussion and considerations, but will focus on its references to the justification re the age of the applicant:

The Court acknowledges that in deciding claims related to non-pecuniary damage within the framework of liability proceedings, domestic courts may be called upon to consider the age of claimants, as in the instant case. The question at issue here is not considerations of age or sex as such, but rather the assumption that sexuality is not as important for a fifty-year-old woman and mother of two children as for someone of a younger age. That assumption reflects a traditional idea of female sexuality as being essentially linked to child-bearing purposes and thus ignores its physical and psychological relevance for the self-fulfillment of women as people. Apart from being, in a way, judgmental, it omitted to take into consideration other dimensions of women’s sexuality in the concrete case of the applicant. In other words, in the instant case the Supreme Administrative Court made a general assumption without attempting to look at its validity in the concrete case of the applicant herself, who was fifty at the time of the operation at issue.

In the Court’s view, the wording of the Supreme Administrative Court’s judgment when reducing the amount of compensation in respect of non-pecuniary damage cannot be regarded as an unfortunate turn of phrase, as asserted by the Government....

In the Court’s view, those considerations show the prejudices prevailing in the judiciary in Portugal , as pointed out in the report of 29 June 2015 by the UN Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers .... They also confirm the observations and concerns expressed by the Permanent Observatory on Portuguese Justice regarding the prevailing sexism within judicial institutions in its report of November 2006 about domestic violence (see paragraph 29 above).

In light of these justifications and more, the ECoHR found that there has been a violation of Article 14 (taken in conjunction with Article 8).

However, this case is of much importance regarding how the different judges reflect not only about sexism (the discrimination of the applicant based her gender), but about ageism (to what extent age was a justifiable reasoning).

In general, it should be noted, that ageism is almost "non-existent" in the ECoHR reasoning. If it was not for the feminist ideology, it seems that the legal result would have been different. It is highly expressed in the minority opinion of judges Ravarani and Bosnjak, which base their dissent on the argument that age classification is justified for the purposes of damages, and hence, this justifies the outcome of this case as well.

It is disappointing to see how the ECoHR is still unaware to the concept of ageism and its socio-legal consequences, and it is a about time that this reality would change.

For more on this topic see for example the following articles:

 https://link.springer.com/article/10.1007/s10823-013-9212-7

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2827294












Thursday, September 7, 2017

Older persons, human rights and assistive and robotics technology

The inter-relations between technology, human rights and older persons is becoming more and more relevant and of importance. As the technological world recognizes the importance and relevance of the aging of societies, and as more and more technological developments are aimed at older persons - some ethical and social concerns are being raised as to the impact and challenges these developments produce.
I a recent report submitted by the UN Independent Expert on the Enjoyment  of Human Rights by Older Persons, Mrs. Rosa Kornfeld-Matte, the IE has addressed some of these issues.
As background ,the IE stresses how:
"....new technologies, including assistive devices, built-in environmental applications and robotics are gaining traction as cost-effective and efficient solutions to the increased need for individualized support for older persons. Such technology can perform simple, routine tasks, such as bringing meals and medications to patients, which will free up human staff who could dedicate themselves more to those elements or parts of care that require human interaction. As their development progresses, those robots begin taking on more and more medical or caregiving tasks and operate increasingly autonomously. For authority to shift from humans to algorithms, their performance only needs to exceed the average human performance."
The IE moves on to describe the legal and policy framework, and describes how:
"There is no specific reference to the right to assistive technology in the United Nations Principles for Older Persons, the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights. In the absence of a dedicated instrument on older persons and while not applicable to all older persons, the provisions in the recently adopted Convention on the Rights of Persons with Disabilities offer some guidance as they recognize the importance of access to assistive technology."
Hence, she concludes that:
"It follows from the above that existing normative and policy frameworks have not explored the full potential of adequate and appropriate support that may allow older persons, in particular through assistive and robotics technology, to continue living in the place of their choice without restriction. There is no mention of the use of assistive technology in residential settings, and the few references that exist focus on medical technologies, failing to encompass the full range of devices that can assist older persons to fully participate in society on an equal basis with others."
In light of this background, the IE moves to discuss the ethical and legal implications of robotics and technology, and touches upon key aspects in this complicated field. For example, in the context of robotics v. human care, the IE states that:
Assistive technology cannot substitute for human care. The extent to which it is appropriate to rely on a machine instead of a human will, however vary, depending on the context, task and individual. Based on a human rights-based approach, support should be available as a means to expand opportunities and not as a method of maintenance. Assistive technology should enable human capabilities and enhance human dignity. This aim should be integrated from the conception to the application of assistive devices and robotics."
Undoubtedly, the dilemmas around technology, robotics and aging are going to be at the center of public debates in the coming year. Hence the IE report in this field is a timely and relevant document. See the full report:
http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/48







Monday, August 28, 2017

Should we legally regulate older physicians?

Around the world, countries are abolishing mandatory retirement laws. And rightfully so: mandating persons to stop working only because of their chronological age - regardless of their personal wishes or their individual abilities - is wrong.
On the other hand, some new challenges develop as an outcome of these legal changes. One of these challenges regards the aging of the medical profession. In specific, the medical profession in many countries has experienced a reality of the aging of its working force. For example, in the US, since 1975, the number of practicing physicians older than 65 years has increased by more than 374%. Taking into account the normal - and non ageist fact - that there is some statistical correlation between older age and some decline in cognitive and physical abilities - may raise the question how and to what extent should there be any way to address the risk of physician who may lose their professional abilities in older age without falling into negative stereotypes and ageism.
A recent article in JAMA Surgery, by Dellinger, Pellegrini, & Gallagher (2017) discuss this issue and provide some proposals to solutions.
See link to the full article below:
http://jamanetwork.com/journals/jamasurgery/article-abstract/2644000



Wednesday, August 16, 2017

Re-framing aging and ageism

One of the key challenges law faces is how to combat ageism.
Various legal instruments, such as anti-discrimination legislation attempt to tackle the issue by either making age discrimination illegal, or by legally empowering older persons through legal representation and rights advocacy.
However, sometimes, law itself uses an ageist approach. Some examples can be found in the field of elder guardianship or anti elder abuse and neglect legislation. Many times these legal policies adopt a negative and stereotypical approach towards older persons, portraying them as weak, incapable, or vulnerable. 
In an interesting move, a group of American organizations, including   ASA, AARP, Archstone Foundation, The Atlantic Philanthropies, the Endowment for Health, The John A. Hartford Foundation, the Fan Fox and Leslie R. Samuels Foundation, The Retirement Research Foundation, Rose Community Foundation, and The SCAN Foundation - have funded a project titled "ReFraming Aging".
One of the reports, written by the FrameWorks Institue, entitled "Finding the Frame: An Empirical Approach to Reframing Aging and Ageism" presents some very interesting insights regarding the way we as a society should "frame" our discourses around age and aging. The report emphasizes the importance of values, words, language, metaphors, as social vehicles which shape our social construction of old age.
We as lawyers, and legislatures, and as professionals who use law as an instrument for social change, are responsible for the usage of words and language in order to secure justice.
Hence, it seems that this report may be of much relevance to all elder law persons around the world. Here is a link to the report:LINK TO REPORT
http://frameworksinstitute.org/assets/files/aging_elder_abuse/aging_research_report_final_2017.pdf




Thursday, June 29, 2017

Supported decision making - alternative to elder guardianship

For many years now, and especially after the taking into force of the CRPD - Convention for the Rights of Persons with Disabilities, there has been much debate around the need to develop the Supportive Decision Making Model as an alternative to existing guardianship regimes.
However, in real life there has been relatively little actual experience in this field.
A new report from Israel describes a new model for such supported decision making model, which can be a good starting point for further development of such services.
Here is the link to the full report:
http://bizchut.org.il/he/wp-content/uploads/2017/06/Support-system-Model-Bizchut.pdf
Israeli Report

Friday, September 30, 2016

The Human Rights Council extends the mandate of the Independent Expert on the Enjoyment of all Human Rights by Older Persons

 On September 26, 2016, the Human Rights Council, decided to extend the mandate of the Independent Expert on the enjoyment of all human rights by older persons for a period of three years:
This is an important decision as it allow the IE (Independent Expert) to continue its role in advancing new policies and instruments to promote the human rights of older persons across the globe.
Here is the full text of the decision:

33/…   The human rights of older persons
       The Human Rights Council,
       Guided by the purposes and principles of the Charter of the United Nations,
       Guided also by the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of Persons with Disabilities and other relevant human rights instruments,
       Reaffirming the Vienna Declaration and Programme of Action,
       Bearing in mind the Political Declaration and the Madrid International Plan of Action on Ageing of 2002, and all other relevant General Assembly resolutions,
       Recalling Human Rights Council resolutions 21/23 of 28 September 2012 and 24/20 of 27 September 2013 on the human rights of older persons,
       Recalling also its resolutions 5/1, on institution-building of the Human Rights Council, and 5/2, on the Code of Conduct for special procedures mandate holders of the Council, of 18 June 2007, and stressing that the mandate holder shall discharge his or her duties in accordance with those resolutions and the annexes thereto,
       Welcoming the work and taking note with appreciation of the reports of the Independent Expert on the enjoyment of all human rights by older persons and of the Open-ended Working Group on Ageing, which is open to all States Members of the United Nations, for the purpose of strengthening the protection of the human rights of older persons,
       Acknowledging the efforts of States to determine the best way to strengthen the protection of the human rights of older persons, considering the various proposals that have been made within the Open-ended Working Group on Ageing, including the possible elaboration of a multilateral legal instrument on the rights of older persons,
       Acknowledging also the adoption of the 2030 Agenda for Sustainable Development,[1] and stressing the need to ensure that no one is left behind, including older persons,
       Recognizing the essential contribution that older men and women can make to the functioning of societies and to the achievement of the 2030 Agenda,
       Noting with appreciation the developments at the regional level towards the protection and promotion of the human rights of older persons, such as the Inter-American Convention on the Protection of Human Rights of Older Persons and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa, as adopted by their State parties,
       Noting that, between 2015 and 2030, the number of persons aged 60 years or over is projected to grow by 56 per cent, from 901 million to 1.4 billion, and that this increase will be the greatest and the most rapid in the developing world, and recognizing that greater attention is needed to the specific challenges affecting older persons, including in the field of human rights,
       Concerned at the multiple forms of discrimination that may affect older persons and at the high incidence of poverty and isolation among this particularly vulnerable group, especially older women, persons with disabilities, persons of African descent, individuals belonging to indigenous peoples, persons belonging to national or ethnic, religious and linguistic minorities, rural persons, persons living on the streets, migrants and refugees, among other groups,
       1.             Recognizes that older persons face a number of particular challenges in the enjoyment of their human rights that need to be addressed urgently, including in the areas of prevention of and protection against violence and abuse, social protection, food and housing, right to work, equality and non-discrimination, access to justice, education, training, health support, long-term and palliative care, lifelong learning, participation and accessibility;
       2.             Emphasizes the need for a comprehensive, all-encompassing approach to the care of older persons, which should be sustainable and based on human rights, and the need for coordination among sectors, policies, institutions, regional and local governments throughout the continuum of care, from prevention, promotion, rehabilitation to long-term and palliative care, including social care and other community services;
       3.             Recalls the need to combat the various forms of violence against older persons, a widespread phenomenon that includes discrimination in the public sphere, linguistic and employment discrimination, lack of access, isolation, neglect, financial exploitation, physical and psychological violence and the withholding of basic needs, as well as physical attacks;
       4.             Reiterates that poverty and lack of income security constitute major concerns for many older persons and that information and advisory services on social security payments, pensions and retirement planning contribute to preventing old-age poverty, reducing the risk-of-poverty rate, vulnerability and social exclusion;
       5.             Emphasizes that consultation with older persons is essential in the formulation and adoption of legislation and policies relating to their specific needs and concerns;
       6.             Decides to extend the mandate of the Independent Expert on the enjoyment of all human rights by older persons for a period of three years:
       (a)           To continue to assess the implementation of national, regional and international standards  relevant to the rights of older persons and to identify, exchange and promote best practices related to the promotion and protection of these rights;
       (b)           To report on developments, challenges and protection gaps in the realization of the rights of older persons, including as input to the work of the Open-ended Working Group on Ageing, and to make recommendations to the Human Rights Council in this regard;
       (c)           To gather, request, receive and exchange information and communications from and with States and other relevant sources, including older persons, their representative organizations and other civil society organizations, on violations of the rights of older persons;
       (d)           To conduct, facilitate and support the provision of advisory services, technical assistance, capacity-building and international cooperation in support of national efforts for the effective realization of the rights of older persons;
       (e)           To raise awareness of the challenges faced in the realization of the human rights of older persons and of the positive contribution of older persons to society, and to provide them with information about their rights;
       (f)            To engage in dialogue and to consult with States and other relevant stakeholders, including United Nations agencies, funds and programmes, regional human rights mechanisms, national human rights institutions, older persons, civil society organizations and academic institutions;
       (g)           To work in cooperation with States, assisting them when requested, in order to foster the implementation of measures that contribute to the promotion and protection of the rights of older persons;
       (h)           To integrate a gender and disability perspective throughout the work of the mandate, and to address multiple, intersecting and aggravated forms of discrimination faced by older persons;
       (i)            To work in close coordination, while avoiding unnecessary duplication, with the Open-ended Working Group on Ageing, other special procedures and subsidiary organs of the Human Rights Council, relevant United Nations bodies and the treaty bodies;
       7.             Requests all Governments to cooperate with the Independent Expert, and invites them to provide the mandate holder with all the necessary information related to the mandate;
       8.             Encourages all relevant stakeholders, including United Nations agencies, funds and programmes, human rights mechanisms, national human rights institutions and civil society, and invites the private sector, donors and development agencies, to cooperate fully with the Independent Expert to enable the mandate holder to fulfil the mandate;
       9.             Requests the Secretary-General to ensure that the reports of the Independent Expert are brought to the attention of the Open-ended Working Group on Ageing, in accordance with paragraphs 1 and 3 of General Assembly resolution 67/139 of 20 December 2012;
       10.          Requests the Secretary-General and the United Nations High Commissioner for Human Rights to provide the Independent Expert with all the human, technical and financial resources necessary for the effective fulfilment of the mandate;
       11.          Decides to remain seized of the matter.


                     [1]   General Assembly resolution 70/1.