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. 

Tuesday, August 23, 2016

The Report of the Independent Expert on the enjoyment of all human rights by older persons has been published

The Report of the Independent Expert (IE) on the Enjoyment of All Human Rights by Older Persons:
 A Short Summary 
by Prof. Israel (Issi ) Doron


In general, this is the comprehensive report of the Independent Expert on the enjoyment of all human rights by older persons, Ms. Rosa Kornfeld-Matte, prepared pursuant to Council resolution 24/20. In the present report, the Independent Expert assesses the implementation of existing international instruments with regard to older persons while identifying best and good practices and gaps in the implementation of existing laws related to the promotion and protection of the rights of older persons. The report also provides an analysis of the human rights implications of the implementation of the Madrid International Plan of Action on Ageing, 2002. The report consists 6 parts:

In Part 1, the Introduction, the reports describes the background of the IE's nomination, its mandate, its relationships with the UN OEWG (Open Ended Working Group) on Ageing. In the introduction, the IE's activities prior to submitting of the report (e.g. participation in various international conferences and cooperation with various organizations) are also described.

In Part 2, a descriptive analysis of existing human rights of older persons in provided. It begins with referring to the demographic shift and aging of human society. It refers to the IE's 1st report which provided an overview of the existing HR instruments and initiatives pertaining to the rights of older persons. Therefore, the present report focuses only on the regulatory and normative developments that have taken place since the completion of the Independent Expert’s previous report. In specific, it mentions the States members of the Organization of American States approved the Inter-American Convention on Protecting the Human Rights of Older Persons; as well as the African Union Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa. It also refers to the adoption of the Sustainable Development Goals by the General Assembly on 25 September 2015 represents an important step forward, as older persons are included directly or by implication in 15 of the 17 global Goals.

In Part 3, an attempt was made to describe best practices and gaps in implementation of existing law. The methodology used by the IE was described as follows: the Independent Expert sent out a questionnaire to States and stakeholders to identify and collect best practices and good practices. As at 2 June 2016, 74 replies had been received, 40 of which had come from States, 14 from national human rights institutions, 19 from non-governmental organizations and 1 from an intergovernmental organization (Art. 26).[1] In summarizing its findings, the IE organized the findings in the following key topics: [For each topic only a few examples are provided in this summary. See the full report for the comprehensive picture]

(1) Legal institutions and policy framework: For example, the IE indicates that A number of countries have adopted national strategies, action plans or specific legislation on older persons, which are sometimes comprehensive in nature or geared towards specific areas such as non-discrimination or the right to health of older persons.  In specific, the IE emphasizes the importance of the engagement and participation of older persons in framing such policies and strategies.
(2) Care: The IE refers to her previous report on this topic. For example, the IE describes initiatives regarding the importance of information, coordination, and medical insurance as key issues. Furthermore, examples around the right to age in place (or at home), the right to care in rural areas, and the challenges of residential and institutional care are also presented.
(3) Social protection: The IE opens with the important statement that Poverty and lack of income security constitute major concerns for many older persons. Social transfers, in particular adequate pensions, significantly contribute to ensuring the financial security of older persons and are a suitable means of reducing the at-risk-of-poverty rate, their vulnerability and social exclusion. The IE then describes the various trends that emerge, including the provision of universal public pensions, providing information and advisory services, and the promotion of resource-generating activities.
(4) The right to work: the IE re-emphasizes that participation in the labour market enhances the self-esteem of older persons, their social inclusion and their financial security. Older workers should enjoy equality of opportunity and treatment in relation to all aspects of work and conditions of employment in all sectors. Within this context the IE touches on the need to change employers attitudes, and to improve career counselling, training, and support to business start-ups in the field.
(5) Equality and non-discrimination: the IE points to the important fact that equality encompasses discrimination on the basis of age, and although many countries have enacted anti-discrimination legislation, ageism remains a major concern for older persons in their daily lives. It is therefore essential that legislation contain an explicit prohibition of direct and indirect discrimination on the basis of age. In specific, the prohibition of discrimination should be broadened to various areas on public life, beyond employment (e.g. accommodation or education).
(6) Violence and abuse: The IE begins with stating that violence against older persons is a global phenomenon. It takes many different forms and there are indications that it occurs frequently in all types of settings. The IE points to the need to establish reliable information and data in this field; the need for national strategies; look not only at the abusers but to support the victims; and the issues of safety and prevention plans.
(7) Participation: The IE points that several countries have established participatory mechanisms, such as national or local councils, to ensure the participation of older persons to guarantee that States develop age-sensitive laws and policies to implement and mainstream access to the required protection.
(8) Adequate standard of living: The IE points specifically to countries which adopted policies and good practices around issues of housing and homelessness.
(9) Access to justice: In specific, referring to the fact that several countries have designed comprehensive policies to facilitate older persons’ access to justice. Measures comprise preferential treatment of older persons in judicial proceedings and the provision of adequate information in an age-friendly manner.
(10)           Education, training and lifelong learning: Lifelong learning is not only a precondition for longer participation in the labour market, it also affects the social integration of older persons. The IE points to a number of countries that have developed lifelong learning programmes for older persons or created third age universities.
(11)            Accessibility: Putting in place age-friendly and barrier-free infrastructures requires the systematic inclusion of accessibility criteria in housing and building codes and in city planning and the human rights compliant involvement of architects and engineers in the design of buildings and public places.
(12)           Awareness-raising and research: The IE points that many States conduct awareness-raising activities, some of which focus on ageing in general to promote a positive attitude towards older persons, or on specific issues such as age discrimination. It also emphasized the importance of collecting traditional knowledge, and the need to promote research on the situation of older persons, and to create partnership between various sectors of society in this field.
In Part 4 the IE moves to assess the human rights implications of the implementation of the Madrid International Plan of Action on Ageing.  Methodologically, a questionnaire-based review of the human rights implications of the implementation of the Madrid Plan of Action was carried out. 103 responses had been received, including 44 from States, and the remainder from national human rights institutions, non-governmental organizations and international organizations. The IE notes that while most national plans of action on ageing were adopted after the adoption MIPAA in 2002, the information received is not conclusive as to the extent to which MIPAA has been used to guide government action or has directly influenced legislative and policy frameworks after 2002. Various examples are given by the IE, as the overall picture is again very diverse. The IE also stresses that MIPAA may have informed government action on older persons and that its adoption correlates with the development and adoption of national plans of action and specific laws and policies in a number of countries. However, where legal and policy frameworks exist, they tend to focus on issues such as care or social protection, without addressing the full spectrum of human rights. [2]

Part 5: Conclusions and recommendation include the following key points:
-            Older persons face a number of particular challenges in the enjoyment of their human rights that need to be addressed urgently.
-            The information received appears to indicate that the implementation of the Madrid International Plan of Action on Ageing may have positive implications for the enjoyment of some human rights by older persons. However, uneven progress with regard to the implementation of the Madrid Plan of Action and gaps between policy and practice remain major constraints.
-            While the Madrid Plan of Action contains a number of references to human rights, it is not a human rights instrument and it addresses ageing issues mainly from a developmental perspective. It has not been designed to comprehensively address existing protection gaps and is therefore not sufficient to ensure the full enjoyment of their human rights by older persons.
-            The Independent Expert calls on States to step up their efforts to determine the best way to strengthen the protection of the human rights of older persons and to consider the various proposals that have been made, notably the elaboration of a convention on the rights of older persons.
Assessment

1.    The limitation of the report: The IE acknowledges that "in the light of the all-encompassing nature of the mandate, does not claim to exhaustively cover the whole spectrum of challenges faced by older persons in the realization of their human rights" (Art. 7). Moreover, from a purely academic perspective, one can also point to some methodological limitations once describing best practices and gaps in implementation of existing law as well as the assessment of MIPPA (e.g. in both cases, as seen in the reports, the samples are not full [only a quarter of the world's countries responded], and reports from key countries [e.g. China, India or USA] are missing). However, these limitations are inherent to almost any empirical study, and are actually very reasonable within the context of a global study conducted within limited resources.

2.    The strengths of the report: The report is balanced, carefully written, and based on evidence provided directly from both member states as well as civil society. It is not ideological or theoretical in its content but rather grounded on the hard work of the IE collecting information and objectively analyzing it. The IE should be commended for her hard work. Overall, the report supports three key arguments that were hotly disputed in the international arena and during the OEWG deliberations:
          i.          Older persons face unique human rights challenges which are not addressed under existing HR instruments;
        ii.          MIPAA, despite its importance and contribution, is not sufficient in addressing the human rights needs of older persons;
      iii.          While there is some progress and there are various examples of good practices in different countries – in almost all fields of life there are still significant gaps in the awareness, realization, enforcement, and promotion of human rights of older persons.
  
3.    The bottom line: In her concluding recommendation (Art. 125), the IE states that she: "calls on States to step up their efforts to determine the best way to strengthen the protection of the human rights of older persons and to consider the various proposals that have been made, notably the elaboration of a convention on the rights of older persons." She continues to state that "It is also hoped that the Working Group will in due course present to the General Assembly a proposal containing, inter alia, the main elements that should be included in an international legal instrument to promote and protect the rights and dignity of older persons, which are not currently addressed sufficiently by existing mechanisms and therefore require further international protection." In light of these words, written after an extensive work, the UN OEWG should adopt these recommendations and join forces in moving forward with the promotion a novel and specific Human Rights Convention for the Rights of Older Persons.



Here is a link to the report:

http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/33/44


Thursday, March 19, 2015

The Geneva NGO Forum - Beijing + 20 - and the Human Rights of Older Women

Between November 3 - 5, 2014, the Geneva NGO Forum - Beijing+20 - UN ECE Regional Review was held.
One of the outcomes of this important meeting was the NGO Declaration and Recommendations regarding the rights of women.
The declaration included some general and universal statements, such as:

"We call for: (1) Fulfilment of the Beijing commitments to all interconnected and universal human rights and systematic implementation of a women’s rights approach delivered through and monitored by strong well-funded Institutional Mechanisms for the Advancement of Women at every level of government; buttressed by an accountability, resourcing, tax and public fiscal and revenue framework capable of sustainably financing progressive realization of women’s human rights."

However, from the perspective of the rights of older persons in general, and the rights of older women in specific, some very important recommendations were made, e.g. the need to:

Implement existing laws and policies that
protect human rights for all women, every
minute and everywhere, especially for girls,
young women and older women, ethnic
minorities, indigenous women, Roma women
and girls, women with disabilities, rural
women, and LGBTI persons.


Adopt an intergenerational justice approach
to women’s human rights and empowerment,
recognising the specific priorities, needs and
circumstances of women at different of stages
of their life course, especially for girls and
older women, and mothers.


Eliminate age-based stereotypes which
undermine the full potential and effective
participation and leadership of women and
girls of all ages.

Develop an international convention on the
rights of older persons incorporating rights
articulated in CEDAW.

Ensure older women adequate income to live
in dignity and implement social protection
laws and policies that enable older women
to be autonomous, full participants in the
development of society.

Enable age-friendly rural and urban physical
and social environments, structures and
services accessible to, and inclusive of, older
women with varying capacities, especially
women with disabilities.

This important declaration emphasized once again the importance of developing a specific human rights instrument to promote the rights of older persons in general, and older women in specific.

Here is the link to the forum's meeting:
http://www.ngocsw-geneva.ch/home/beijing20/



Saturday, September 13, 2014

A new book: The Law and Ethics of Dementia

Dementia is a topic of enormous human, medical, economic, legal and ethical importance. Its importance grows as more of us live longer. The legal and ethical problems it raises are complex, intertwined and under-discussed. This book brings together contributions from clinicians, lawyers and ethicists, all of them world leaders in the field of dementia and is a comprehensive, scholarly yet accessible library of all the main (and many of the fringe) perspectives. It begins with the medical facts: what is dementia? Who gets it? What are the current and future therapeutic and palliative options? What are the main challenges for medical and nursing care? The story is then taken up by the ethicists, who grapple with questions such as: is it legitimate to lie to dementia patients if that is a kind thing to do? Who is the person whose memory, preferences and personality have all been transformed by their disease? Should any constraints be placed on the sexual activity of patients? Are GPS tracking devices an unpardonable interference with the patient's freedom? These issues, and many more, are then examined through legal lenses. The book closes with accounts from dementia sufferers and their carers. It is the first and only book of its kind, and the authoritative text.
The book is edited by Charles Foster, Jonathan Herring, and Israel (Issi) Doron, and is published by HART Publication at Oxford.
Here is the link to the book:
http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849464178

Wednesday, September 10, 2014

The 1st Report of the Independent Expert on Human Rights of Older Persons

As was already reported, the UN Human Rights Council has nominated on June 2 2014, Ms Rosa Kornfeld-Matte to serve as the Independent Expert on the Enjoyment of all Human Rights by Older Persons.
The Independent Expert submitted its first report, and here is the link to the full text of the report.:
http://www.rightsofolderpeople.org/wp-content/uploads/2014/08/A-HRC-27-46_en-1.pdf

http://www.rightsofolderpeople.org/wp-content/uploads/2014/08/A-HRC-27-46_en-1.pdf

The Report includes background information regarding the foundation of the mandate of the Independent Expert, its scope of operation, the legislative context, and the global context of the human rights of older persons.
As little time has passed by since her nomination, this report is mostly descriptive and does not include any new or novel findings or recommendation.
However, here is the conclusion of this first report, which can indicate the spirit and direction that the IE wishes to pursue:

"The Independent Expert aims to respond to the expectations of numerous individuals and organizations with regard to her work on the human rights of older persons, as outlined by the Human Rights Council in its resolution 24/20. To that end, she looks forward to engaging in constructive and fruitful cooperation with diverse stakeholders in all regions. She emphasizes her desire for constructive engagement with the States Members of the United Nations, and reiterates the importance of an inclusive and all-encompassing approach in the discharge of her mandate. She particularly notes the central role of non-governmental organizations, including in providing her with information and engaging with and assisting her as she fulfils her mandate."

We wish the IE the best success in her work, and we will continue to report on her progress.