Inter-American Human Rights Treaty on the Rights of Older People Defines a Broad Scale of (New) Health Rights: Precedent for a UN Treaty?

Marlies Hesselman, University of Groningen

On 15 June 2015, the member states of the Organization of American States (OAS) approved the  Inter-American Convention on Protecting the Human Rights of Older Persons  during the General Assembly of the institution. The resolution was not supported by Canada or the USA, but immediately attracted signatures from 5 members of the OAS (Brazil, Uruguay, Chile, Costa Rica and Argentina). The instrument needs two ratifications before it enters into force.

The document can already be taken as a landmark document, however, recognizing for the first time specifically the vulnerability of older persons and their specific rights. According to a press release of the OAS and the new Convention itself, ‘the purpose of the Convention – the first regional instrument of its kind in the world -, is to promote, protect and ensure the recognition and the full enjoyment and exercise, on an equal basis, of all human rights and fundamental freedoms of older persons, in order to contribute to their full inclusion, integration and participation in society. The starting point of the Convention is the recognition that all existing human rights and fundamental freedoms apply to older people, and that they should fully enjoy them on an equal basis with other segments of the population.”

One of the questions that this new regional convention raises is whether it supports and “strengthens the case for a new international UN convention on the rights of older people” as well. We very much like to invite you for a discussion on this question! Is it opportune to recognize a right to healthy and active ageing for the elderly internationally as well, or in a European document? Are these rights currently sufficiently protected? Please share your thoughts in the comment box.

To illustrate the scope of rights to health recognized in the Convention, the convention seems to underscore a range of rights not normally explicitly included in treaties, such as acces to ‘palliative care’, or the concept of ‘active and healthy ageing’. The Convention inter alia includes the following definitions and provisions on the right to health:

Art. 2 (definitions:)

“Palliative care”: Active, comprehensive, and interdisciplinary care and treatment of patients whose illness is not responding to curative treatment or who are suffering avoidable pain, in order to improve their quality of life until the last day of their lives. Central to palliative care is control of pain, of other symptoms, and of the social, psychological, and spiritual problems of the older person. It includes the patient, their environment, and their family. It affirms life and considers death a normal process, neither hastening nor delaying it.
[…]

“Multiple discrimination”: Any distinction, exclusion, or restriction toward an older person, based on two or more discrimination factors.

“Age discrimination in old age”: Any distinction, exclusion, or restriction based on age, the purpose or effect of which is to annul or restrict recognition, enjoyment, or exercise, on an equal basis, of human rights and fundamental freedoms in the political, cultural, economic, social, or any other sphere of public and private life.

“Active and healthy ageing”:  The process of optimizing opportunities for physical, mental, and social well-being, participation in social, economic, cultural, spiritual, and civic affairs, and protection, security, and care in order to extend healthy life expectancy and quality of life for all people as they age, as well as to allow them to remain active contributors to their families, peers, communities, and nations. It applies both to individuals and to population groups.

“Integrated social and health care services”: Institutional benefits and entitlements to address the health care and social needs of older persons with a view to guaranteeing their dignity and well-being and to promoting their independence and autonomy.

[…]

Article 11

Right to give free and informed consent on health matters

Older persons have the inalienable right to express their free and informed consent on health matters. Denial of that right constitutes a form of violation of the human rights of older persons.
[read rest of article and specific obligations here: OAS Human Rights Treaty on Older People -2015]

Article 12

Rights of older persons receiving long-term care

Older persons have the right to a comprehensive system of care that protects and promotes their health, provides social services coverage, food and nutrition security, water, clothing, and housing, and promotes the ability of older persons to stay in their own home and maintain their independence and autonomy, should they so decide.

[read rest of article and specific obligations here: OAS Human Rights Treaty on Older People -2015]

The Right to Health itself has also been comprehensively defined in article 19 of the new Convention, reading in full:

Article 19

Right to health

Older persons have the right to physical and mental health without discrimination of any kind.

States Parties shall design and implement comprehensive-care oriented intersectoral public health policies that include health promotion, prevention and care of disease at all stages, and rehabilitation and palliative care for older persons, in order to promote enjoyment of the highest level of physical, mental and social well-being.  To give effect to this right, States Parties undertake to:

1. Ensure preferential care and universal, equitable and timely access to quality, comprehensive, primary care-based social and health care services, and take advantage of traditional, alternative, and complementary medicine, in accordance with domestic laws and with practices and customs.
2. Formulate, implement, strengthen, and assess public policies, plans, and strategies to foster active and healthy ageing.
3. Foster public policies on the sexual and reproductive health of older persons.
4. Encourage, where appropriate, international cooperation in the design of public policies, plans, strategies and legislation, and in the exchange of capacities and resources for implementing health programs for older persons and their process of ageing.
5. Strengthen prevention measures through health authorities and disease prevention, including courses on health education, knowledge of pathologies, and the informed opinion of the older person in the treatment of chronic illnesses and other health problems.
6. Ensure access to affordable and quality health care benefits and services for older persons with non-communicable and communicable diseases, including sexually transmitted diseases.
7. Strengthen implementation of public policies to improve nutrition in older persons.
8. Promote the development of specialized integrated social and health care services for older persons with diseases that generate dependency, including chronic degenerative diseases, dementia, and Alzheimer’s disease.
9. Strengthen the capacities of health, social, and integrated social and health care workers, as well as those of other actors, to provide care to older persons based on the principles set forth in this Convention.
10. Promote and strengthen research and academic training for specialized health professionals in geriatrics, gerontology, and palliative care.
11. Formulate, adapt, and implement, in accordance with domestic law, policies on training in and the use of traditional, alternative, and complementary medicine in connection with comprehensive care for older persons.
12. Promote the necessary measures to ensure that palliative care services are available and accessible for older persons, as well as to support their families.
13. Ensure that medicines recognized as essential by the World Health Organization, including controlled medicines needed for palliative care, are available and accessible for older persons.
14. Ensure access for older persons to the information contained in their personal records, whether physical or digital.

Promote and gradually ensure, in accordance with their capabilities, coaching and training for persons who provide care to older persons, including family members, in order to ensure their health and well-being .

Article 24

Right to housing

Older persons have the right to decent and adequate housing and to live in safe, healthy, and accessible environments that can be adapted to their preferences and needs.

States Parties shall adopt appropriate measures to promote the full enjoyment of this right and facilitate access for older persons to integrated social and health care services and to home care services that enable them to reside in their own home, should they wish.

[read rest of article and specific obligations here: OAS Human Rights Treaty on Older People -2015]

Article 25

Right to a healthy environment

Older persons have the right to live in a healthy environment with access to basic public services.

[read rest of article and specific obligations here: OAS Human Rights Treaty on Older People -2015]

Again, we are looking forward to hearing your opinions on this new and unique Convention! How can we strengthen the opportunities for active and healthy ageing in both developed and developing countries? What can European countries take away from this Convention?
Sources:
– https://www.opensocietyfoundations.org/voices/human-rights-treaty-finally-recognizes-right-palliative-care

– http://www.rightsofolderpeople.org/inter-american-convention-on-protecting-the-human-rights-of-older-persons/
www.theguardian.com/global-development/poverty-matters/2013/jul/31/ageism-human-rights-older-people
http://social.un.org/ageing-working-group/index.shtml

One of the multi-disciplinary focus areas at the University of Groningen and the UMCG is ‘healthy ageing’.