A new book on European Elder Law: "Ageing, Ageism, and the Law"

Until not many years ago, the field of law and aging was relatively neglected within European jurisprudence. 

This has changed dramatically in recent years.

However, much was left to be studied, at least in the field of ageism and European law.

A new and recent book in the field, edited by Prof. Israel Issi Doron, and Nena Georgantzi, presents a collection of articles in the field. The book was published by EE - Edward Elgar.

Here is a synopsis of the book:

Europe is ageing. However, in many European countries, and in almost all fields of life, older persons experience discrimination, social exclusion, and negative stereotypes that portray them as different or a burden to society. This pivotal book is the first of its kind, providing a rich and diverse analysis of the inter-relationships between ageing, ageism and law within Europe.

Throughout the book – which builds on a European Cooperation in Science & Technology (COST) action – leading scholars offer theoretical and empirical analysis in order to discern the role European law plays in perpetuating and combating ageism. Including specific examples of how stereotypes and prejudices influence and shape the European legal system, the book contributes to the broader current global social movement towards advancing a new international human rights convention for older persons.

Timely and engaging, this book will appeal to students and scholars of law, sociology, public policy and a wide range of related fields including gerontology, human rights, and health studies. Practitioners, policy-makers, civil society organizations and senior citizens activists will also benefit from the insights into the socio-legal aspects of social policies and human rights of older persons.

https://www.e-elgar.com/shop/ageing-ageism-and-the-law

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, 9^th 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 9^th 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.

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

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

Old age and the UN Special Rapporteur on the right to health, Anand Grover

 One of the most important rights in old age in the right to health.
In 2011, the UN Special Rapporteur "on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health," Anand Grover, published his report regarding his findings on this rights.
The full report can be found in the following link:
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/143/61/PDF/G1114361.pdf?OpenElement

Here are the conclusion and recommendation of this report:

V. Conclusions and recommendations
70. In a report of this length, it is impossible to address all of the important issues,
but the Special Rapporteur notes with urgency the present demographic changes
leading to a rapidly increasing number of older persons. Society should move beyond
seeking simply healthy ageing for its citizens, and begin working towards active and
dignified ageing, which should be planned and supported just like any other stage of
the individual’s life course. Planning for old age implies putting in place diagnostic and
prevention services at the primary healthcare level long before ageing sets in. The
pursuit of active and dignified ageing for older persons requires re-framing society’s
concept of ageing to focus on the continued participation of older persons in social,
economic, cultural and civic affairs, as well as their continuous contributions to society
longer into their lives. The promotion and protection of the human rights of older
persons should be of concern to everyone because ageing is a process which everyone
will undergo. Older persons are especially vulnerable as a group because of
stereotyped perceptions of the group as a “lapsed” segment of society. However, as life
expectancy increases and medicine improves, older persons stay active longer than
ever before, both in terms of occupational and non-occupational activities.
Encouraging older persons to remain physically, politically, socially and economically
active for as long as possible will benefit not only the individual, but also the society as
a whole.

71. The Special Rapporteur recommends:
(a) Recognizing ageing as a lifelong process, a reality which State policy,
legislation and resource allocation should reflect so that health-care services,
including diagnostic and prevention services, are available and accessible to a person
before becoming old to allow for healthy ageing;
(b) Ensuring that the right to the highest attainable standard of health
shapes, and is integrated into, relevant national and international policies concerning
ageing and older persons. Health facilities, goods and services should be made
available, accessible, affordable and acceptable to older persons, and be of good
quality;
(c) Implementing the right-to-health framework to ensure shifting the
discourse surrounding older persons from a needs-based perspective to a rights-based
approach, which enables greater realization of the right to health of older persons;
(d) Encouraging the establishment and support of networks of older persons
in order to ensure their participation in the development and improvement of social
protection and health care, which recognizes and ensures the enjoyment of the right to
health;
(e) Establishing a system of social protection that affords older persons
access to long-term care, whether institutional or home-based, which ensures that
abuse or violations of rights do not take place;
(f) Putting in place policies and procedures for reporting, addressing and
preventing abuse of older persons;
(g) Instituting mechanisms to raise awareness and train medical
professionals, non-medical carers and the wider community on the treatment of older
person, and to prevent and address their abuse;
(h) Developing international guidelines and national systems to regulate and
monitor hospice-care practices to ensure that the elderly are supported in making
A/HRC/18/3719 informed health-care decisions, and that their human dignity and autonomy are not
neglected due to their vulnerability
(i) Establishing and implementing safeguards to ensure that free and
informed consent is required for any treatment and/or other medical intervention and
that this is guaranteed for all patients, no matter their age, condition and treatment
proposed;
(j) Developing and implementing mechanisms to protect the rights of older
persons if/when they are deemed incapable of providing informed consent to any
treatment and/or other medical intervention due to injury, disease or chronic
conditions such as dementia.

Law, gerontology, and human rights: can we connect them all?

A report of a recent study of the European Court of Justice, and its rulings regarding the rights of older persons.

The ECJ is probably the most important judicial institution in the EU, hence its rulings on the rights of older persons is of global importance.


Law, gerontology, and human rights: can we connect them all?