18 Rights of the Elderly Persons

LEARNING OUTCOMES

The purpose of this chapter is:

To critically understand the rights of the elderly from a legal perspective.
To develop an understanding of the legal underpinnings of elderly rights.

INTRODUCTION

Elderly people form a unique portion of the society like any other group of people. However, they are widely considered as a vulnerable group of the society owing to the widespread belief of their inability to protect themselves. With the changing times, ageing population and growing concern about the welfare of the elderly, there arose a necessity of recognition of the various rights available to this section of the populace. In this scenario, a wide range of rights available to the elderly persons were recognised and acknowledged through various national and international treaties, conventions and other laws.

HUMAN RIGHTS OF THE ELDERLY PERSONS

The aged enjoy varied human rights which can be broadly classified into two categories:

3.1. General Human Rights – Those rights which are applicable to all are also available to the elderly persons by the very virtue of them being human beings. Hence, those basic rights that are fundamental to human existence are also intrinsic to the elderly persons.

3.2. Specific Rights – There are certain rights that are specifically made available to the elderly owing to their explicit needs.

4. GENERAL HUMAN RIGHTS AVAILABLE TO THE ELDERLY

4.1. Right to Life and Liberty

Right to life is an absolute right inherent to all human beings, including the elderly. The Right to Life of human beings entails two obligations on part of the States namely:

A duty not to take away anyone’s life except under limited circumstances of great necessity like through lawful action for the welfare of the public and even under those circumstances the use of force/ action must be proportionate to the necessity and should not be arbitrary.
A duty to protect one’s life by taking reasonable steps in the times of necessity. The State is bound to take proactive steps to protect the life of a person whom it believes to be at risk.

Right to Liberty is an integral part of right to life and implies the right to be free. In other words, everyone has a right to enjoy their life and all of their human rights within the boundaries of law and morality without arbitrary interference of deprivation of freedom. Elderly persons necessitate a greater protection of this right owing to the fact of greater chances of institutionalisation of the aged in the modern society. Also, their movements will tend to be restricted under the notion of their inability to partake any activity. Old age should never justify the deprivation of liberty. Elderly persons possess the right to personal mobility with greatest possible independence and enjoy the liberty of movement.

The fundamental Human Right to Life and Liberty is recognised, acknowledged and protected by almost all human rights treaties and conventions and fundamental laws of the land of all nations and their human rights legislations.

RIGHT TO LIFE AND LIBERTY

Universal Declaration of Human Rights – Article 3
Declaration of Rights and Responsibilities of Older Persons
UN Principles for Older Persons, 1991
European Convention on Human Rights
American Convention on Human Rights
African Charter on Human Rights

4.2. Right to Adequate Standard of Living

The Right to adequate standard of living is incidental to right to life. This too is an absolute right and comprises of various other rights such as right to food, water, clothing and shelter without which the complete enjoyment of the right to life is not viable. The right to adequate standard of living does not fade away as one grows old and hence, is pertinent to the elderly persons also without any distinction or discrimination.

RIGHT TO ADEQUATE STANDARD OF LIVING

Universal Declaration of Human Rights – Article 25
International Covenant on Economic, Social and Cultural Rights – Article 11
Convention on the Elimination of All Forms of Discrimination Against Women – Article 14.2(h)
Convention on the Rights of Persons with Disabilities – Article 28
Madrid International Plan of Action on Ageing, 2002

4.3. Right to Dignity

Right to dignity is an indispensable component of right to life. Right to life implies right to live with dignity and not mere animal existence. Human dignity is not only a right in itself but forms the basis of fundamental human rights as treating every person with respect is the heart of human identity. It is for this reason that the Universal Declaration of Human Rights has enshrined this principle in its preamble. Thus, to be treated with dignity is the fundamental right of the elderly. Respecting the elderly and treating them with all the dignity they deserve enables their integration into the society by liberating them from the clutches of discrimination.

The UN Principles for Older Persons state that:

‘Older persons should be able to live in dignity and security and be free of exploitation and physical or mental abuse.’

4.4. Right of Equality, Non-Discrimination and Equal Opportunity

Right to Equality is an absolute free-standing right quintessential for providing justice to all. All are equal before the law and are equally entitled to the protection of law and justice. No person can be discriminated against on the basis of caste, creed, race, religion, sex, place of birth, age etc., and everyone is to be provided with equal opportunities to access justice, benefits of law and so on. Likewise, elderly persons are also entitled to equal protection of law and equal opportunities in all matters and are not to be discriminated against based on any factor.

RIGHT TO EQUALITY

Universal Declaration of Human Rights, 1948 – Article 2
International Covenant on Civil and Political Rights, 1966 – Article 2
International Covenant on Economic, Social and Cultural Rights, 1966 – Articles 2.2 and 3
Convention on the Elimination of all forms of Discrimination Against Women, 1979 – Article 2
Convention on the Rights of Persons with Disabilities, 2006 – Article 8.1(b)
International Convention on Protection of the Rights of All Migrant Workers and Members of their Families, 1990 – Article 7
UN Principles for Older Persons, 1991
Madrid International Plan of Action on Ageing, 2002

4.5. Freedom of Expression and Access to Information

Elderly people, like all other human beings, possess freedom of expression and opinion and the right to express their views without interference. However, this right is subject to certain restrictions under specified circumstances like that of national security, territorial integrity, maintenance of public order and so on. Along with the freedom of expression, elderly persons also possess the freedom to seek, receive, and impart information and ideas on an equal basis with others and through all forms of communication of their choice.

FREEDOM OF EXPRESSION

Universal Declaration of Human Rights, 1948 – Article 19
International Covenant on Civil and Political Rights, 1966 – Article 19
International Convention on Elimination of All forms of Racial Discrimination – Article 5
Convention on the Rights of Persons with Disabilities, 2006 – Article 21
International Convention on Protection of the Rights of All Migrant Workers and Members of their Families, 1990 – Article 13

4.6. Right to Education

Elderly persons have a right to education and life-long learning without any discrimination. They can access the educational institutions and facilities on an equal basis with others. Though this right of the elderly persons is not explicitly recognised, it is inherent to all human beings. Most important of all, the elderly persons possess the right to be educated about health, safety, security as well as the evolving changes in lifestyle and living.

The UN Principles for Older Persons state that:

‘Older persons should have access to the educational, cultural, spiritual and recreational resources of society.’

4.7. Right to work and employment

The human right to work and employment branches out from the right to adequate standard of living. Consequently, elderly persons are entitled to work, including the right to participate in the workforce. This right also enables the elderly persons to voice their opinion and participate in the decision making process regarding the nature of work they can undertake, their retirement from work etc.

The UN Principles for Older Persons state that:

‘Older persons should have the opportunity to work or to have access to other income-generating opportunities’ and ‘Older persons should be able to participate in determining when and at what pace withdrawal from the labour force takes place.’

RIGHT TO WORK

Universal Declaration of Human Rights, 1948 – Article 23
International Covenant on Economic, Social and Cultural Rights, 1966 – Articles 6 and 7
Convention on the Elimination of All forms of Discrimination Against Women, 1979 – Article 11
Convention on the Rights of Persons with Disabilities, 2006 – Articles 8.2(iii) and 27
International Convention on Elimination of All forms of Racial Discrimination – Article 5
UN Principles for Older Persons, 1991
Madrid Plan of Action on Ageing, 2002

4.8. Right to Privacy

Elderly persons, like all others, have the right to privacy in all aspects of their life including in their home, family life, communications, health, intimacy, work and financial matters. They cannot be deprived of their right on the sole basis of their age. With the growing concern over the issue of elderly abuse, the right to privacy of the aged are being violated under the cloak of protection. Providing protection cannot be a reason for divesting the elderly of their privacy.

RIGHT TO PRIVACY

Universal Declaration of Human Rights, 1948 – Article 12
International Covenant on Civil and Political Rights, 1966 – Article 17
Convention on the Rights of Persons with Disabilities, 2006 – Article 22
International Convention on Protection of the Rights of All Migrant Workers and Members of their Families, 1990 – Article 14
UN Principles for Older Persons, 1991
Madrid Plan of Action on Ageing, 2002

4.9. Right of Participation

Right of Participation is the essence of a democracy. Elderly persons are entitled to participate in the social, political and economic affairs of the State along with cultural life, recreation, leisure and sport on an equal basis with others. This right also includes within its ambit the right to vote, contesting elections, right to be heard including in issues directly or indirectly affecting them etc. Providing emphasis on the right to participation of the elderly persons and ensuring the enjoyment of this right enables the integration of the elderly persons into the social stream by preventing their exclusion.

The UN Principles for Older Persons state that:

Older persons should remain integrated in society, participate actively in the formulation and implementation of policies that directly affect their wellbeing and share their knowledge and skills with younger generations.
Older persons should be able to seek and develop opportunities for service to the community and to serve as volunteers in positions appropriate to their interests and capabilities.
Older persons should be able to form movements or associations of older persons.

RIGHT OF PARTICIPATION

Universal Declaration of Human Rights, 1948 – Article 21
International Covenant on Civil and Political Rights, 1966 – Article 25
Convention on the Rights of Persons with Disabilities, 2006 – Article 29
Convention on Elimination of All forms of Discrimination Against Women, 1979 – Articles 7 and 8
International Convention on Protection of the Rights of All Migrant Workers and Members of their Families, 1990 – Article 41
International Convention on Elimination of All Forms of Racial Discrimination – Article 5
UN Principles for Older Persons, 1991
Madrid International Plan of Action on Ageing, 2002

4.10. Right to peaceful enjoyment of Possessions

The right to peaceful enjoyment of possessions is in a way qualifying right of the right to property. This right entitles the elderly persons to acquire, own, use, transfer, inherit and also participate in redistribution of property. Further, this right also covers a wide range of other possessions like welfare benefits, pensions along with the acquired rights like patents, copyrights, shares and other economic interests.

This right has been recognised at the regional level by the European Charter on Human Rights under Article 1, Protocol 1.

5. SPECIFIC RIGHTS

5.1. Right to Freedom from Ageism

Not to be discriminated against on any grounds is a fundamental human right of all and this includes age within its scope. Ageism or Discrimination on the basis of Age is the most inhuman treatment being meted out to the elderly people all over the world. The elderly people are increasingly facing the problem of discrimination on account of growing old. Ageism makes the elderly persons more vulnerable to abuse and also results in the deprivation of other fundamental human rights of these people.

RIGHT TO FREEDOM FROM AGEISM

CESCR General Comment No. 6
Convention on the Rights of Persons with Disabilities, 2006 – Article 8
International Convention on Protection of the Rights of All Migrant Workers and Members of their Families, 1990 – Article 7
Convention on Elimination of All forms of Discrimination Against Women, 1979
ILO Older Workers Recommendation, 1980
ILO Convention concerning Private Employment Agencies, 1997
ILO Workers Housing Recommendation (115), 1961

5.2. Right to Health

Right to Health is a fundamental human right of all. However, this right entails special substantiation with respect to the elderly persons. The right to health of the elderly implies their right to gain the highest attainable standard of physical and mental health. The elderly persons have inter alia a right to access health care services, take decisions pertaining to their health individually, protection against forced medication or treatment etc. Thus, the right to the highest attainable standard of health of the elderly provides for both freedoms and entitlements.

RIGHT TO HIGHEST ATTAINABLE STANDARD OF HEALTH

Universal Declaration of Human Rights, 1948 – Article 25
International Covenant on Civil and Political Rights, 1966 – Article 7
International Covenant on Economic Social and Cultural Rights, 1966 – Article 12
Convention on the Rights of Persons with Disabilities, 2006 – Article 25(b)
Convention on Elimination of All forms of Discrimination Against Women, 1979 – Articles 12
International Convention on Protection of the Rights of All Migrant Workers and Members of their Families, 1990 – Articles 28, 43 and 45
International Convention on Elimination of All Forms of Racial Discrimination – Article 5
UN Principles for Older Persons, 1991
Madrid International Plan of Action on Ageing, 2002

5.3. Right to Housing

Though, this right is general to all human beings, the elderly entail a special protection with respect to the human right to housing by their virtue of being the most vulnerable to forced evictions. Thus, the recognition of the right to housing of the elderly persons enables them to live in their homes as long as possible without any interference.

RIGHT TO HOUSING

Universal Declaration of Human Rights – Article 25
International Covenant on Economic, Social and Cultural Rights – Article 11
Convention on the Elimination of All Forms of Discrimination Against Women – Article 14.2(h)
Convention on the Rights of Persons with Disabilities – Articles 9(a) and 28
ICERD – Article 5(e) ii
American Convention on Human Rights, 1969 – Article 21
Protocol of San Salvador – Article 11
European Social Charter, 1996 – Article 31
ILO Older Workers Recommendation (162), 1980 – Section II, para 5(g)
ESCR Committee General Comment No. 4: The Right to adequate housing, E/1992/23
UN Principles for Older Persons, 1991

5.4. Right of Social Security

The Protocol of San Salvador, 1988 defines ‘Social Security’ as “the right to be protected from the consequences of old age and of disability which prevents a person, physically or mentally, from securing the means for a dignified and decent existence”. It is the responsibility of the State to provide for the means of existence to the elderly to enable them to lead a dignified life through various welfare schemes, policies and economic and social benefits like pensions, insurance etc. In other words, elderly people have the right to social security, including income security, without any discrimination.

RIGHT OF SOCIAL SECURITY

Universal Declaration of Human Rights – Articles 22 and 25
International Covenant on Economic, Social and Cultural Rights – Article 9
Convention on the Elimination of All Forms of Discrimination Against Women – Article 11.1(e)
Convention on the Rights of Persons with Disabilities – Article 28
International Convention on the Protection of Rights of All Migrant Workers and Members of their Families, 1990 – Articles 27, 54 and 61
International Convention on Elimination of All Forms of Racial Discrimination – Article 5
UN Convention on the Status of Refugees, 1951 – Article 24
ILO Convention No. 102 concerning Social Security (Minimum Standards), 1952
Equality of Treatment (Social Security) Convention, 1962 – ILO Convention No. 118
Maintenance of Social Security Rights Convention, 1982 – ILO Convention No. 157
UN Principles for Older Persons, 1991
Madrid International Plan of Action on Ageing, 2002

5.5. Right of Protection against Elderly Abuse

The elderly persons are entitled to protection from all forms of abuse and this is an absolute right. According to the World Health Organisation, elder abuse is a “single or repeated act of lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person”. Elder abuse may be diverse in nature like physical, sexual, emotional and financial abuse, depending upon the kind of expectation of trust. Apart from this, elder abuse also comprises of more discreet forms of abuse like neglect, exploitation, humiliation and so on.

The Right of Protection from Abuse of the elderly persons may be summarised as follows:

RIGHT TO PROTECTION

Universal Declaration of Human Rights, 1948 – Article 5
International Covenant on Civil and Political Rights, 1966 – Article 7
Convention on the Rights of Persons with Disabilities, 2006 – Article 16
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
International Convention on Elimination of All Forms of Racial Discrimination – Article 5
Convention on the Elimination of All Forms of Discrimination Against Women
International Convention on the Protection of Rights of All Migrant Workers and Members of their Families, 1990 – Article 16
UN Principles for Older Persons, 1991
Madrid International Plan of Action on Ageing, 2002

5.6. Right to Care and Assistance

The elderly are entitled to long-term care and assistance from family and community to enable them to lead a safe, healthy and dignified life. The right to care and assistance of the elderly imposes a positive responsibility on the family, community as well as the State to provide the necessary care and assistance to these people in exercising their rights without any intricacies.

The UN Principles for Older Persons state that:

Older persons should benefit from family and community care and protection in accordance with each society’s system of cultural values.
Older persons should have access to healthcare to help them to maintain or regain the optimum level of physical, mental and emotional wellbeing and to prevent or delay the onset of illness.
Older persons should have access to social and legal services to enhance their autonomy, protection and care.
Older persons should be able to utilize appropriate levels of institutional care, providing protection, rehabilitation and social and mental stimulation in a humane and secure environment.
Older persons should be able to enjoy human rights and fundamental freedoms when residing in any shelter, care or treatment facility, including full respect for their dignity, beliefs, needs and privacy and for the right to make decisions about their care and the quality of their lives.

5.7. Right of Independence and Self-fulfilment

The elderly, like all other sections of the society, have the right to independently take decisions in issues affecting them like health services, management of finances, property matters etc. right to self-determination is inherent to all human beings and elderly persons are not an exception to this.

Likewise, the elderly also possess the right to attain full development of their potential with access to educational, cultural and the like resources of the society.

The UN Principles for Older Persons state that:

Independence

Older persons should have access to adequate food, water, shelter, clothing and healthcare through the provision of income, family and community support and self-help.
Older persons should have the opportunity to work or to have access to other income-generating opportunities.
Older persons should be able to participate in determining when and at what pace withdrawal from the labour force takes place.
Older persons should have access to appropriate educational and training programmes.
Older persons should be able to live in environments that are safe and adaptable to personal preferences and changing capacities.
Older persons should be able to reside at home for as long as possible.

The UN Principles for Older Persons state that:

Self-fulfilment

Older persons should be able to pursue opportunities for the full development of their potential.
Older persons should have access to the educational, cultural, spiritual and recreational resources of society.

5.8. Right to Family Life

The right to family life is a human right of all human beings. However, it is of special importance to elderly as there is a greater tendency of separation of the elderly from their families like in circumstances of institutionalisation for medical reasons. Such separation of the elderly from their partners and other family members exerts emotional and psychological pressure which is detrimental to their health. Hence, the right of the elderly persons to family life has been recognised.

RIGHT TO FAMILY LIFE

Universal Declaration of Human Rights, 1948 – Article 16.3
International Covenant on Economic Social and Cultural Rights, 1966 – Article 10
Convention on the Rights of Persons with Disabilities, 2006 – Article 23
Convention on the Elimination of All Forms of Discrimination Against Women, 1979 – Article 16
International Convention on the Protection of Rights of All Migrant Workers and Members of their Families, 1990 – Article 44
UN Principles for Older Persons, 1991
Madrid International Plan of Action on Ageing, 2002

NOTE

General Comment No. 6 of the Committee on Economic, Social and Cultural Rights constituted under the International Covenant on Economic, Social and Cultural Rights, 1966 is a major human rights document at the international level under the auspices of the United Nations that comprehensively deals with the Rights of the Elderly especially with respect to the application and relevance of the human rights provided under the International Bill of Rights to the elderly persons.

6. SUMMARY

The human rights of the elderly can be summarised with the following chart:

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Reference

European Charter of Fundamental Rights was the first human rights document of the new millennium to include age in its non-discrimination clause. (Article 21) Gerontocracy is a type of social structure wherein the power is held by the society’s oldest members.
Geriatrics or geriatric medicine is a specialty that focuses on health care of elderly people. It aims to promote health by preventing and treating diseases and disabilities in older adults.
Senescence refers to the aging process, including biological, emotional, intellectual, social, and spiritual changes.
Dr. Robert Butler coined the term ‘Ageism’ in 1968, noting that ageism exists in all cultures (Brownell).
The Rights of Older Persons http://social.un.org/ageing-working- group/documents/fourth/Rightsofolderpersons.pdf
Human Rights of Older Persons http://www.ohchr.org/EN/Issues/OlderPersons/Pages/OlderPersonsIndex.aspx
Specific human Rights for Older Persons?, by Professor Dr. Paul De Hert and Eugenio Mantovani http://www.vub.ac.be/LSTS/pub/Dehert/388.pdf
Towards a regime of Rights for Older Persons, by Jacob, Alice, Journal of the Indian Law Institute 40 (01-04) 1998: 311-316
Right to health of poor elderly : International and national perspective, by Verma,Sudarshan, Saxena, Priti, Indian Bar Review 36 (01-04) 2009: 165-194 Chicago Declaration on the Rights of Older Persons
http://www.jmls.edu/braun/pdf/chicago-declaration-v11.pdf
http://www.ageuk.org.uk/documents/en-gb/for-professionals/equality-and-human- rights/older_people_human_rights__expert_series_pro.pdf?dtrk=true