Tuesday, January 30, 2018

The right of older persons to dignity and autonomy in care

Dr. Nils Mui┼żnieks, Commissioner for Human Rights for the Council of Europe, has recently published a new comment on "The right of older persons to dignity and autonomy in care".
The comment stresses that within the context of long term care: 
"It is urgent for member states to thoroughly review, with the participation of older persons, their approach to long-term care in order to make it more human rights-based, including in the light of the Revised Social Charter (by accepting Article 23 if they have not yet done so), the 2014 Recommendation of the Committee of Ministers, and the 2017 Resolution of the PACE."
The comment continues to reiterate that:
"In addition to providing the resources such a system requires to be accessible and affordable, states must also take account of the training needs of care professionals, as well as of informal caregivers, and ensure that the choices for older persons are maximised, for example when they wish to live in their home, while preventing social isolation."
Specifically, within the context of the right to palliative care, the comment states that:
The importance of palliative care as an integral part of health services and its denial as a human rights violation are being increasingly recognised at the international level. Special Rapporteurs of the UN on Torture and on Health stated that the denial of pain relief causing severe pain and suffering may amount to cruel, inhuman or degrading treatment. 
See the full comment here.


Tuesday, January 9, 2018

AGE Platform Europe Older Persons' Self Advocacy Handbook

One thing is to talk about promoting the human rights of older persons.
Another thing is to actually get involved and active in promoting these rights in real world.
One of the most important European (and global) NGOs which actually do ground work with promoting awareness and action in this field is AGA Platform Europe.
Here is its press release on the topic as well as the link to the handbook:

On 10 December, (2017) AGE launches the full version of its online 'Older Persons' Self-Advocacy Handbook', which empowers older people to better know their human rights and to claim them.
With this handbook, we aims to support the involvement of older persons in all processes that affect their human rights at the United Nations, Council of Europe and European Union levels. This publication describes concrete ways on how older people can refer to human rights to influence government policies and measures, so as to be empowered, as self-advocates and through their representative organisations, to voice their concerns and expectations and drive positive change in their everyday lives. It can also be used by different stakeholders, promotes a human-rights based approach in ageing policy at all levels.

Tuesday, December 12, 2017

ILO World Social Protection Report 2017

In recent days, the ILO - International Labour Organization, has published its new report on "World Social Protection". See:
http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_604882.pdf

This important report has a special section regarding the "Social Protection for Older Women and Men".
Here are the key messages of this report regarding older persons:

KEY MESSAGES
Pensions for older women and men are the most widespread form of social protection in the world, and a key element in SDG 1.3. At the global level, 68 per cent of people above retirement age receive a pension, either contributory or non-contributory.

Significant progress has been made in extending pension system coverage in developing countries. Universal pensions have been developed in Argentina, Belarus, the Plurinational State of Bolivia, Botswana, Cabo Verde, China, Georgia, Kyrgyzstan, Lesotho, Maldives, Mauritius, Mongolia, Namibia, Seychelles, South Africa, Swaziland, Timor-Leste, Trinidad and Tobago, Ukraine, Uruguay, Uzbekistan and Zanzibar (United Republic of Tanzania). Other developing countries, such as Azerbaijan, Armenia, Brazil, Chile, Kazakhstan and Thailand, are near universality.

However, the right to social protection of older persons is not yet a reality for many. In most low-income countries, less than 20 per cent of older persons over statutory retirement age receive a pension. In many developing countries, a large proportion of older persons still depend heavily on family support arrangements.

Observed trends vary substantially across regions and even between countries within the same region. In countries with comprehensive and mature systems of social protection, with ageing populations, the main challenge is to maintain a good balance between financial sustainability and pension adequacy. At the other extreme, many countries around the world are still struggling to extend and finance their pension systems; these countries face structural barriers linked to development, high levels of informality, low contributory capacity, poverty and insufficient fiscal space, among others.

A noticeable trend in developing countries is the proliferation of non-contributory pensions, including universal social pensions. This is very positive, particularly in countries with high levels of informality, facing difficulties in extending contributory schemes. Trends show that many countries are succeeding in introducing a universal floor of income security for older persons.

Public schemes, based on solidarity and collective financing, are by far the most widespread form of old-age protection globally. Pension privatization policies, implemented in the past in a number of countries, did not deliver the expected results, as coverage and benefits did not increase, systemic risks were transferred to individuals and fiscal positions worsened. As a result, a number of countries are reversing privatization measures and returning to public solidarity-based systems.

Recent austerity or fiscal consolidation trends are affecting the adequacy of pension systems and general conditions of retirement. In several countries, these reforms are putting at risk the fulfilment of the minimum standards in social security, and eroding the social contract. Countries should be cautious when designing reforms to ensure that pension systems fulfil their mission of providing economic security to older persons.

Wednesday, November 8, 2017

WHO - World Health Organization 13th General Programme of Work - Need for Action

Spreading the call from action received from IFA - the International Federation on Aging:
The World Health Organization has just published its draft of the 13th General Programme of Work (GPW13) (see attached). 
 It is shocking to note that ‘ageing’ does not factor in the draft and unless there are strong voices from NGOs, academics and member states in the field stating that this is unacceptable any progress which has been made in the recent past will dwindle once again. 
 
It is strongly recommended that as many organisations / experts / interested people in this field write to register their strongest possible concern in a succinct way http://www.who.int/about/gpw-thirteen-consultation/en/.  IFA is reaching out far and wide and would appreciate efforts through your networks – we must stand together!
 
Detailed feedback is not what is needed but rather many leading voices noting that the total absence of work on ageing considering the incredible demographic shift is absolutely unacceptable and will impact current and future generations
Comments must be in by 15th November

 

Monday, October 23, 2017

MIPAA 3rd Review and Appraisal - Lisbon Ministerial Conference on Ageing - September 2017

MIPAA, the Madrid International Plan of Action on Aging of 2002, which was adopted by the 2nd World Assembly on Ageing, is still the leading policy document in the field of aging - on the global level.
Unlike VIPAA, the Vienna plan of action of 1982, MIPAA introduced a review and appraisal process in order to follow up its implementation evaluate its impact. The first review of MIPAA concluded in 2008, and the second review concluded in 2013.
In 2015 the third review started and it will be concluded in 2018.
During the month of September this year a Ministerial Conference on Ageing: A Sustainable Society for All Ages: Realizing the Potential of Living Longer - in Lisbon, Portugal.
This meeting was very constructive and with various documents submitted and produced, including NGOs forum and declarations.
Here is the link to the Ministerial Declaration
http://www.unece.org/fileadmin/DAM/pau/age/Ministerial_Conference_Lisbon/Documents/2017_Lisbon_Ministerial_Declaration.pdf
This is yet another development  - slow - but yet dynamic movement which eventually will mature to a new convention for human rights of older persons.....

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