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, 9^th 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.

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