The Council of Europe s work on the human rights of older persons. Seminar on the occasion of the Alzheimer Europe Conference (21 October)

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1 The Council of Europe s work on the human rights of older persons Seminar on the occasion of the Alzheimer Europe Conference (21 October) On behalf of the Council of Europe, I am very glad to be invited to this important conference and to be able to present our organisation s work on the human rights of older persons. For those not so familiar with the complex architecture of European institutions: the Council of Europe is a separate organisation from the European Union: while our mandate the protection of human rights, democracy and the rule of law is more specific than that of the EU, our geographic reach is a wider one: among the 47 member states of the Council of Europe, there are 19 states which are not in the European Union for example, Switzerland, Norway, Turkey, Russia, Georgia, Ukraine, Armenia or Azerbaijan. The Council of Europe has been quite active, especially in recent years, in promoting and strengthening the human rights of older persons. Our Committee of Ministers, Parliamentary Assembly, Commissioner for Human Rights and European Committee of Social Rights have all addressed the issue in one way or another. But let us start with the Council of Europe s most prominent treaty, the European Convention on Human Rights, and how it is applied and interpreted by the European Court of Human Rights with regard to older persons. The Convention (as a treaty that was drafted decades before Europe started to undergo the current demographic changes) does not make any specific reference to age. However, the European Court of Human Rights has increasingly delivered judgments which touch upon the human rights of older persons. I will give you a few examples in the following. 1

2 The Court decided several cases relating to the right to life under Article 2 of the Convention in respect of institutional care. It found in a case against Bulgaria that a state-run nursing home had violated its positive obligation towards an Alzheimer patient who, despite instructions to never leave her unattended, disappeared and was presumed dead. In a case of a 106-year old British applicant who was transferred against his will to another nursery home, the Court recognised that a badly-managed transfer of elderly residents of a care home could have a negative impact on their life expectancy (and thus possibly raise an issue under Article 2), and that local authorities had a certain positive obligation when making operative choices in order to minimise risks to older persons lives. An extremely difficult issue is the compulsory placement of an older person in a nursery home, in particular when the older person in question is no longer able to provide him- or herself with medical care or sufficient hygiene standards. The case of H.M. v. Switzerland the Court did not find a violation because the 86-old applicant had later agreed to stay in the nursery home where she had been put initially against her will. In the context of compulsory confinement in psychiatric institutions, the Court considerably raised the threshold for authorities in 2012 with the case of Stanev v. Bulgaria, and I would argue that the same standards would also apply as regards nursery homes. Let me add one case concerning residential care which the Court decided this April. In the judgment McDonald v. the United Kingdom 1, the Court considered an application concerning a decision by the local authorities to reduce the care allowance for a 71-year old woman with severe limited mobility, on the basis that she could use incontinence pads at night - even though the applicant was 1 McDonald v. the United Kingdom, judgment of 20 May

3 not incontinent but only needed assistance at night with going to the toilet. Although the majority of the application was not considered a violation of the right to a private life under Article 8 of the Convention (the state having considerable discretion concerning the allocation of scarce resources in this respect), the significance of that judgment is that the Court held for the first time that Article 8 applied with regard to the provision of services to a disabled or older person. In doing so, the Court focused on the applicant s human dignity and took into account the provisions of the UN Convention on the rights of persons with disabilities. The Court has also addressed the issue of abuse of older persons in institutional care. In the case of Heinisch v. Germany - a case concerning the dismissal of a whistle-blowing employee of a nursery home where such abuse was common - the Court found that the dismissal amounted to a violation of the applicant s freedom of expression under Article 10 of the Convention and stated that: In societies with an ever growing part of their elderly population being subject to institutional care, and taking into account the particular vulnerability of the patients concerned, who often may not be in a position to draw attention to shortcomings in the care rendered on their own initiative, the dissemination of information about the quality or deficiencies of such care is of vital importance with a view to preventing abuse. The Court also had to address other issues with regard to the rights of older persons, such as for example a recent case in which it found that the refusal to stay the execution of the prison sentence of an 83-year-old man and to convert 3

4 it into a house arrest because of his serious and complex medical disorders had been incompatible with Article 3 of the Convention (prohibition of inhuman and degrading treatment or punishment). Other cases concerned the expulsion or deportation of older persons to a third country, or the reduction of older persons pensions by austerity measures in the aftermath of the financial crisis. This brings us to the protection of older persons under the European Social Charter, which is one of the very few international human rights treaties with a provision which is directly related to older persons. Article 23 of the Charter states that older persons have the right to social protection, and the Committee held that the objective of this provision is to enable older persons to play an active part and have some influence in society, to guarantee them sufficient resources to live independently, to provide housing and an environment suited to their needs, and to guarantee adequate health care and social services. Article 23 also includes protection of older persons against discrimination especially with regard to access to goods, services and facilities. And there is certainly room for improvement as regards the implementation of this provision by Council of Europe member states: in its most recent annual conclusions delivered this January, the Committee examined Article 23 in respect of 20 European states and found 14 to be in breach of the provision, in particular because of inadequate resources for older persons or a lack of non-discrimination legislation. 2 It also considered abuse of older persons as a serious and hidden problem and asked all states to report on what measures they have taken in this respect. Apart from these two treaties, there exist numerous soft-law standards which promote the rights of older persons and their social inclusion. This includes 2 See European Committee of Social Rights, Press briefing elements, Conclusions 2013/XX-2, 29 January

5 recommendations and resolutions of the Committee of Ministers (in which all 47 governments of our member states are represented) and the Parliamentary Assembly (which is composed of representatives from all national parliaments of our member states). And still, there remained the perception that the human rights and dignity of older persons were not sufficiently guaranteed. Previous instruments had either addressed certain specific rights of older persons (e.g. pension rights) or general rights of specific groups of older persons (e.g. rights of older migrants). The Committee of Ministers therefore felt that an instrument was needed that would address the whole range of fundamental rights enjoyed by all older persons. The end result is the new Recommendation on the promotion of human rights and older persons which the Committee of Ministers adopted in February. I brought a few copies to this conference, but the text is also available from our website. I will now give you a quick overview of that instrument. A few words about its history: the text was elaborated over a period of one and a half years by a Drafting Group (called the CDDH-AGE ) which was composed of experts from 12 European states, representatives from both the United Nations Office of the High Commissioner for Human Rights and the European Union, as well as representatives of national human rights institutions and of several INGOs, including today s co-organisers AGE Platform Europe. Moreover, the Chairperson of the UN Committee on the Rights of Persons with Disabilities addressed the Drafting Group in order to underline some aspects of the UN convention on the rights of persons with disabilities which were particularly relevant in the context of our Recommendation. 5

6 The Recommendation consists of a set of 54 principles, regrouped under seven chapters, to promote, protect and ensure the full enjoyment of all human rights by all older persons, and to promote respect for their inherent dignity. Those chapters are, notably: general principles; non-discrimination; autonomy and participation; protection from violence and abuse; social protection and employment; care, including medical care, residential and institutional care, as well as palliative care; and finally judicial guarantees for older persons under the heading Administration of justice. Each chapter of the Recommendation is accompanied by a guide of good practices from our member states, to illustrate possibilities and good ideas for the implementation of the principles. The recommendation also comes with an explanatory report that helps provide guidance on its principles. Given the limited time available and the topic of the present conference, I will use the remainder of the time to focus on the chapters Autonomy and participation and Medical care. Chapter III deals with the autonomy and participation in decision-making. The main idea is to recognise older persons right to self-determination and their legal capacity to decide in their best interests about their person and affairs. This part covers also situations where older persons may not be able to exercise their legal capacity and intends to ensure help for them and to prevent abuses. The explanatory report refers explicitly to art 12.4 of the UN CRPD, from which we take inspiration and not only in this context. At the same time, our member states took the view that the recommendation could not simply endorse the CRPD provisions, but should adapt them to the specificities of the older persons. 6

7 Finally, a few words about the chapter on care: Chapter VI of the recommendation has been designed with a view to ensuring appropriate and affordable health and long-term quality care for older persons at home or in institutions. Specific provisions deal with consent to medical care and to placement in institutions and with situations where an older person may not be able to express consent. I think that it is important to underline that the fact that the Recommendation speaks about the situation of older persons in institutions must not be seen at all as an encouragement to institutionalisation. But if we want this instrument to be effective we need to realistically acknowledge that institutions exist, and are a place where the respect of the human rights and dignity of older persons may be subject to particular threats. As to medical care, the Recommendation is primarily based on the Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine. This Chapter also addresses the issue of palliative care as necessary care providing an appropriate environment for older persons to cope with pain and other distressing symptoms. In conclusion, let me say something about the expected impact of this Recommendation. It is not binding, but that does not mean that it is toothless. First of all, the Recommendation does not limit itself to the reiteration of preexisting standards, in particular from the European Convention on Human Rights and the European Social Charter. It tailors them to the circumstances and the needs of older persons, by trying to fill the gaps in implementation of these standards and by presenting them as a common position accepted by all 47 member states of the Council of Europe. 7

8 Secondly, with the help of the examples of good practices, it proposes a series of special measures to contribute to older people's full enjoyment of human rights, so it expresses not only the common views and practices of our member states but also their ambitions as to how the rights of older persons should be enforced. Finally, being a non-binding instrument, the Recommendation is immediately applicable to all our 47 member States, who are not legally bound by it in the same way as a Convention, but are nevertheless asked, by virtue of the Statute of the Council of Europe, to take action with regard to the recommendations adopted by the Committee of Ministers. To help apply provision, a follow-up process will take place 5 years after its adoption. And we also count on our partners, especially NHRIs and NGOs, to disseminate knowledge about the recommendation in our member States and to draw the attention of governments to the provisions of the recommendation with which States may not be in compliance today. We believe therefore that the Recommendation is as an important contribution, from the European standpoint, to the development of the human rights of older persons, given that this instrument is in fact the first human right standard elaborated by a group of European governments which is specifically addressed to the rights of older persons. Thank you very much. 8