Monday, May 7, 2018

Equality and Non-Discrimination - Submission to the OEWG

Joint submission by AGE Platform Europe, HelpAge International, The Law in the Service of the Elderly and the National Association of Community Legal Centres Australia
Open-Ended Working Group On Ageing, 9th Working Session, 23-26 July 2018

Normative content on the right of older persons to equality and non-discrimination

Authors
This joint submission is authored by Robin Allen (Cloisters), Andrew Byrnes (Australian Human Rights Institute, Faculty of Law, University of New South Wales), Israel (Issi) Doron (University of Haifa), Nena Georgantzi (AGE Platform Europe / National University of Ireland Galway), Dee Masters (Cloisters), Bill Mitchell (National Association of Community Legal Centres, Australia) and Bridget Sleap (HelpAge International). Our views do not necessarily reflect the broad and consensual positions of the organisations we represent, which will be submitted separately.

Definition of discrimination
Discrimination against older persons is understood as any differential treatment, including but not limited to any distinction, exclusion, restriction or preference based directly or indirectly on age or any other ground, which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Affirmation of the right
1. Older persons have the right to equality and freedom from discrimination on the basis of their age or on any other ground, alone or in combination with another ground or grounds.

Scope of the right
1.1 The prohibition of, and guarantee of legal protection against, discrimination against older persons shall apply to every aspect of life without limitation.

1.2 The right shall engage all forms of discrimination against older persons including direct, indirect, by association, by perception or imputation, incitement, vilification, victimization, harassment and denial of reasonable accommodation.

1.3 Specific measures which are necessary to accelerate or achieve de facto equality of older persons shall not be considered discrimination.

1.4 The grounds upon which intersectional and cumulative discrimination may occur shall be comprehensive.

State obligations
2. States Parties shall undertake:

2.1 To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against older persons;

2.2 To take all appropriate steps to ensure formal and substantive equality of older persons, including but not limited to a duty to consider the differential impact of all their decisions, in particular age-based policies, on older persons;

2.3 To prohibit and take all steps to eliminate intersectional discrimination, namely the combined effect of age and another personal characteristic or the combined effect of any two or more characteristics;

2.4 To prohibit and take all steps to eliminate cumulative discrimination and victimisation, namely discrimination and or victimization on a number of occasions over time and or from multiple sources;

2.5 To take all appropriate measures to ensure protection for particular groups of older persons who suffer discrimination and denial of rights on heightened or systemic basis and/or as a common experience;

2.6 To take all appropriate steps to eliminate discrimination against an individual and any ageist institutional, systemic or structural practices which affect the human dignity of older persons;

2.7 To take all appropriate steps to eliminate harmful ageist social norms and practices, including traditional practices, which affect the human rights and dignity of older persons;

2.8 To ensure the access of older persons to tailored and comprehensive assistance in making claims and accessing justice;

2.9 To ensure the access of older persons to redress and reparation for age discrimination, including where appropriate taking cumulative discrimination into account in any award of damages;

2.10 To adopt immediate, effective and appropriate measures to promote information, research and public awareness around equality and non-discrimination against older persons, inter alia, by:
·         Raising awareness of the rights, capacities and contribution of older persons
·         Countering any discriminatory systemic ageist perceptions of, and practices towards, older persons
·         Promoting awareness of the benefits of age equality and of investing in older age
·         Promoting a positive image of ageing
·         Undertaking or promoting research on ageing and on issues particularly affecting older persons, and ensuring data is collected, disaggregated, analysed, utilised and disseminated by all ages, and take into account intersectionality
·         Providing accessible, appropriate information to older persons on their rights and entitlement to benefits and resources
·         Engaging and making older persons partners and active participants in shaping social policies and public programmes which relate to their rights and interests
·         Promoting intergenerational interactions and solidarity.

Tuesday, April 24, 2018

Joint Submission to the 9th OEWG Open Ended Working Group on Ageing - Autonomy and Independence


Joint submission by AGE Platform Europe, HelpAge International, The Law in the Service of the Elderly and the National Association of Community Legal Centres Australia[1]
Open-Ended Working Group On Ageing, 9th Working Session, 23-26 July 2018

Autonomy and independence

Authors
1.       This joint submission is authored by Robin Allen (Cloisters), Andrew Byrnes (Australian Human Rights Institute, Faculty of Law, University of New South Wales), Israel (Issi) Doron (University of Haifa), Nena Georgantzi (AGE Platform Europe / National University of Ireland Galway), Bill Mitchell (National Association of Community Legal Centres, Australia) and Bridget Sleap (HelpAge International). Our views do not necessarily reflect the broad and consensual positions of the organisations we represent, which will be submitted separately.

Context of Response
2.       This response addresses the guiding questions from a global perspective. It is an executive summary of a more comprehensive statement which will be provided to the 9th working session.

Guiding Question 1
3.       Autonomy is the ability to make choices and decisions, including with support if necessary, according to one’s conscience, values, will and preferences.

4.       Independence is the ability to perform actions of daily living and participate in society in accordance with one’s will, values and preferences.

5.       Whilst the right to equal recognition before the law and the right to a family and private life are enshrined in international human rights law, there are no explicit standards on autonomy and independence in older age in international human rights law.

6.       Some regional human rights standards recognise the right to autonomy and independence in older age. However, these vary and are inconsistent across regions.

Guiding Question 2
7.       Autonomy is both an underlying principle that governs every human right and a right in and of itself. The principle of autonomy presumes that individuals are able to make choices according to their own will and preferences. In order to make autonomous decisions, and for these decisions to be legally effective, the law requires that the individual has the legal capacity to do so.  To enjoy their right to autonomy, therefore, older persons must enjoy legal capacity and equal recognition before the law on an equal basis with others.

8.       Independence does not necessarily mean living alone or carrying out all daily activities by or for oneself. Rather independence is having choice and control over decisions about one’s own life, including control over decisions which lead to the execution of tasks that someone else carries out. To enjoy their right to independence, older persons must enjoy their right to care and support for independent living.

Guiding Question 3
9.       Older persons are subjected to ageist attitudes that devalue, discount or ignore their views and choices, or assume they can no longer make, and are thereby denied the opportunity to make, decisions for themselves.

10.    Older persons may be denied their autonomy and independence in any aspect of life including decisions about their care and support services; leisure time; property; income; finances; place of residence and living arrangements; personal, family and private life, including sexual and intimate relationships; and political participation.

11.    Concerns have also emerged around the denial of older persons’ free and informed consent in areas such as medical treatment, restrictive interventions and practices, and end of life care and treatment.

12.    A paradigm shift is required away from this and to the presumption that older persons can exercise their autonomy and independence through choice and control over decisions in their lives in line with their will and preferences. The best safeguard for autonomy, independence and legal capacity is respect for will and preferences.

13.    This paradigm shift requires us also to change the social construction of human dignity in older age whereby dignity in older age is not centred around protection, intervention and professional care in the ‘best interest’ of the older person. Rather, dignity in older age means respecting autonomy and ensuring independence in older age. The use of the ‘best interests’ principle in respect of adults is not a safeguard that complies with international human rights norms.

Guiding Question 5
14.    International human rights standards are needed on older persons’ right to freedom of personal autonomy and legal capacity to make decisions, to determine their life plans and to lead autonomous and independent lives in line with their will and preferences and on an equal basis with others. This includes the right to have those decisions respected.

15.    The right should apply to all aspects of life.

16.    The right should include the right to:
·         Interact with others and full, effective and meaningful participation in family, social, cultural, economic, public and political life and educational and training activities
·         Live independently in the community on an equal basis with others (More detail on the right to care and support for independent living is included in our submission on long-term care.)
·         Choose where, with whom, and how to live their lives and not to be obliged to live in any particular living arrangement. When older persons choose to live in shared residential settings, their rights to autonomy and independence must be respected.

17.    Standards are also needed on the right of older persons to legal capacity at all times and the right to equal recognition before the law on an equal basis with others.

18.    The right should apply to all aspects of life.

19.    The right should include the right to:
·         Designate one or more trusted persons to assist them to make decisions based on their instructions, will and preferences
·         Make advance directives to express their will and preferences in advance
·         Participate in, and challenge, any decisions that interfere with the exercise of their legal capacity.




* For further information contact Bridget Sleap bsleap@helpage.org

Thursday, March 15, 2018

The Journal of International Aging, Law & Policy

Despite of its importance, the field of global and international elder law receives relatively limited attention on the academic sphere. Moreover, there aren't many law journals who specialize in this field or publish law journal articles that focus on international and comparative perspectives of elder law.
May be the single law journal in this field which dedicated it self from its origins to promote this field is the Journal of International Aging Law & Policy, based at Stetson University College of Law.

The journal was originally inaugurated in 2005, in cooperation with AARP, and after holding a first-of-its kind international conference on elder law with leading scholars from around the world.

Today, the journal is headed by Prof. Roberta K. Flowers, who is the co-director of the Center for Excellence in Elder Law in Stetson University and Jessica K. Close.

Just to take an example from the Fall 2016 issue, here are some examples of excellent scholarly writings that provide an importance international legal perspective on global elder law:

An article on the topic of: "Adult Guardianship in Taiwan: A Focus on Guardian Financial Decision-Making and the Family’s Role", by Sieh-chuen Huang;

An article on the topic of:  "To be, or not to be: A Global Perspective on Physician-Assisted Suicide", by Jennifer Tindell;

Or an article on the topic of: "Korean Guardianship as a Policy for the Protection of Adults with Impaired Decision-Making Abilities", by Cheol Ung Je.

These are only a few examples of the rich academic and scholarly writings which appear in this excellent law journal. And most importantly, all the article are accessible, free, on line, through the web, at the journal's web-site:
http://www.stetson.edu/law/agingjournal/







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