Key Benefits:
( Plenary Assembly of 27 June 2013)
1. By letter dated 19 October 2012, the Delegate Minister for Older Persons and Self-Government referred the NHRC to the issue of the fundamental rights of older persons at the national, European and international levels.
2. The minister wanted a mapping of the fundamental rights of older persons to be carried out by highlighting the actual rights and those provided by the texts that suffer from a lack of readability or a lack of realization. On the international level, Ms. Delaunay had defended, at the UN ministerial conference held in Vienna on 19 and 20 September, the draft of an international convention for the elderly, under the auspices of the UN.
3. In response to this referral, CNCDH chose to focus its work on the issue of the effectiveness of the rights of older persons. As far as the international dimension is concerned, it presents an overview of the initiatives taken in the major international forums of the United Nations, the Council of Europe and the European Union.
4. It seemed necessary for the members of the Commission to present the outcome of their work on the issue of older persons in the context of the general context of population ageing in France and around the world, the increasing proportion of older and very elderly people in the population and to examine the definition of older persons.
5. Indeed, the issue of the rights of older persons has emerged as a priority issue in France but also at the international level, particularly because of the lengthening of life. Population ageing brings new social, economic and legal challenges globally or locally.
6. The notion of an elderly person is complex. Regardless of the country in question, age policies are still very focused on a group with a blurred contours, commonly referred to as seniors, retirees, elders or seniors.
7. In addition to this difficulty in terminology, these people tend to be grouped into a single category of the population. However, this is not a homogeneous category. In fact, it is possible to identify three distinct groups within the elderly: autonomous and healthy adults, fragile or vulnerable people who may become dependent and dependent or highly dependent persons requiring a third person to perform the acts of everyday life.
8. Moreover, there is no national or international consensus on the age defining the elderly, which is often associated with the legal age of retirement: 65 years in Europe, and 60 to 62 years in France. At this age, life expectancy is high, except for certain socio-professional categories (precarious, painful occupations).
9. The age of an individual is not the only criterion for dependency, because vulnerability implies the existence of other factors (health problem, disability, social environment, isolation). Although old age increases the likelihood of becoming dependent, it is not synonymous with loss of autonomy. It finds its translation by limiting the ability to perform essential acts of daily life (1).
10. Demographic ageing has long been seen as a brake on economic development due to public spending on pension financing and loss of autonomy. But this finding must be nuanced because ageing can also be a lever of economic growth in terms of consumption and innovation. Older people also provide a wealth of unrecorded contributions to society in terms of volunteerism, availability and participation in society.
11. The prevention of the negative consequences of aging, such as addiction, is a major political issue. The problem of advanced age can no longer be confined to a simple sectoral policy in the field of social and health services.
12. At the European and international levels, a great heterogeneity reigns in promoting respect for the rights of older persons and in their treatment, especially because of differences in life expectancy and lifestyles. The definition of the elderly person is closely related to the diversity of cultures.
I. ― Rights of the elderly
calls for specific protection
13. Although age does not necessarily result in the existence of a vulnerability situation, old age increases the likelihood of a dependency situation that calls for specific protection. A parallel can be made between the situation of the elderly and those of other persons with a loss of autonomy (psychial disorders, disability).
I-1. Civil and political rights, citizenship, participation in society
14. Abuse of older persons is a discreet phenomenon in France but present. This may be active or passive abuse by the family or the surrounding environment. In addition, abuse is not limited to persons residing at home. It is also observed in the institutions hosting older persons. With regard to physical abuse, the many complaints indicate that institutional control – especially that of regional health agencies – remains inadequate and that there are spaces that can escape the vigilance of those responsible.
15. Furthermore, it is necessary to resolve the issue of punishments that may be taken by staff against a resident because this phenomenon is unacceptable.
One of the legal difficulties posed by thearticle 311-12, first paragraph, of the Criminal Code, is the immunity granted by this article in the event of theft committed to the injury of the ascendant or descendant or to the injury of the spouse, except where the spouses are separated from or authorized to reside separately. Financial abuse is usually done by relatives. CNCDH recommends that criminal immunity be lifted in the event of theft on the person aged by a family member (2).
16. Encouraging the social participation of seniors is paramount because it is proven that there is a correlation between the decline in physical capacity and the subjective feeling of isolation. Interesting initiatives have emerged, including the formation of councils of seniors, consulted by municipalities on issues related to improving the quality of life of older persons and strengthening the social link between generations.
With regard to the right to vote of older persons in France, there are no specific provisions. In some municipalities and institutions (EHPAD) (3), initiatives were undertaken to facilitate the voting of seniors. Some institutions have raised awareness of the vote by proxy. CNCDH recommends that the implementation and development of these devices continue.
I-2. Social and economic rights
17. From an economic point of view, the elderly are not part of the most disadvantaged category. However, some older persons face great financial difficulties. Older women are proportionally poorer than men in France (4).
18. Older people are faced with a set of difficulties in accessing goods and services on an equal footing and other discriminatory practices, whose rights defender (DDD) is regularly seized (5). It is recalled that all age-based discrimination is sanctioned, both by the Criminal code only by Labour codein accordance with the provisions of the Charter of Fundamental Rights of the European Union (art. 21) and that the right of older persons to social protection is guaranteed by Article 23 of the European Social Charter.
19. With regard to employment, the largest number of age-related discrimination occurs in the public and private sectors. Age is thus an important criterion of referrals that most often involve access to employment (recruitment criteria) and career development (6).
20. Access to goods and services may be restricted to persons who have spent a certain age, in connection with bank borrowing, insurance and mutual contracts, or even in the rental of goods (car rental, etc.). Banks often practice policies that discriminate against older persons, causing difficult access to borrowing. With regard to insurance and mutual benefits, there is a gradual shift in the elderly. Mutuals rely on actuarial data, epidemiological studies to rate the risk covered in contracts. It would be necessary to review the criteria used in view of the longer life span.
21. The equal access of older persons to hospital care is sometimes jeopardized in the admission of emergencies. Some institutions provide special channels to better address the vulnerability of older persons, but these mechanisms are still in place. It is necessary to encourage their development.
22. Access to compensatory benefits can be a source of discrimination as part of the eligibility criteria for disability compensation and personal self-reliance (from 60 years). The amounts allocated may vary depending on the date of birth of the person and not on his or her needs. Section 13 of the 2005 Act (7) provided that, within a five-year period, the public authorities should have reduced age barriers in access to disability compensation benefits. CNCDH recommends that the necessary measures be taken.
23. In terms of access to housing, older persons must face inadequate housing supply and sometimes discriminatory practices by donors. La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La Act No. 89-462 of 6 July 1989 to improve rental reports and to amend Act No. 86-1290 of 23 December 1986 had a perverse effect.
The CNCDH therefore recommends that the 1989 law be reformed, as currently advocated by the Ministry of Housing, while recalling the need to be vigilant in order not to create another counter-productive effect resulting from a new obligation to the lessor that could induce him not to rent his property to an elderly person.
I-3. Cumulative age discrimination
and other forms of discrimination
24. Older women may be subjected to double discrimination on the basis of both sex and age, given the existence of significant pay gaps between men and women (8).
25. Older migrants are faced with many obstacles that affect them particularly in terms of access to care, access to nationality and social rights, as many obstacles that affect their right to normal family life. In fact, the conditions of residence for the benefit of the minimum age as well as the conditions of residence for access to non-contributory social benefits sometimes result in a discriminatory situation in practice.
CNCDH recommended increasing attention to the specific challenges faced by older women and migrants and called on the authorities concerned to ensure equal access to their rights in law and practice.
I-4. Rights and freedoms in EHPAD
I-4.1. Right to consent to entry to EHPAD
26. Article L. 311-3 of the Code of Social Action and Families, derived from the 2002 Act (9), lays down the principle of the free choice of persons between the benefits offered subject to the powers recognized to the judicial authority and the needs related to the protection of majors. The informed consent of the person must be sought, by informing the person by means appropriate to his or her situation of the conditions and consequences of his or her care and by ensuring his or her understanding (recorded on 8 September 2003 [10], article 4 of his or her annex). This consent can be sought through the development of a transparent and harmonized standard residence contract. A review of residence contracts, as advocated by the Rights Ombudsman, could be considered (11).
27. This principle of free choice is widely violated in reality. Many older people return to institutions because of the lack of alternative measures or choices in the old age support system. Families, too often confronted with one of their loved ones with a loss of autonomy and living alone in an apartment, are sometimes led to a contract of residence with an establishment, without necessarily obtaining the free and informed consent of the individual.
CNCDH recommends that entry into EHPAD be conditioned to the free and informed consent of the elderly. In addition, CNCDH considers that it would be appropriate to create a "revocation period".
I-4.2. Right to freedom to go and come to the EHPADs,
to reconcile with the security of the resident and respect for his or her privacy
28. Security measures in EHPADs have tended to increase in recent years, under the impulse of families but also at the initiative of the directors of institutions facing increasing responsibilities. Thus, the freedom to go and come from the elderly is becoming increasingly restricted, which calls into question this fundamental right. In practice, this observation is manifested in various ways that constitute as many gradual infringements of freedom. These restrictions are reflected in their most striking expression by closed services in some establishments or by contention and to a lesser extent by laying digicodes at the entrance of establishments that some residents cannot or cannot use. In addition, in the news, new debates emerge regarding the development of techniques such as electronic bracelet or video surveillance. It is necessary to avoid too much intrusion in the privacy of the resident. Conciliation between security and freedom to go and come becomes increasingly complex and necessarily calls for a better adequacy between the will to protect and the risks.
29. Accordingly, an extension of the competence of the Comptroller General of Places of Deprivation of Liberty at EHPAD was proposed (12).
CNCDH recommends increased vigilance by the public authorities to ensure that the freedoms and rights of older persons are effectively guaranteed, including a better alignment between restrictions on their freedom to go and come and their privacy and security requirements. CNCDH is advocating to broaden the competence of the Comptroller General of Places of Deprivation of Liberty to ensure respect for the fundamental rights of older persons.
I-4.3. Living conditions in EHPAD
30. In these institutions, older persons are confronted and suffer from the constraints of collective life imposed at an advanced age (13) where change is particularly difficult (14). EHPADs must better reconcile places of care and places of life and take into account the personal life project of each resident. In this sense, a major step forward would be achieved if better dissemination of good practices between EHPAD could enable establishments to optimize their know-how with the means they have.
In order to address the trend of placing an elderly person directly into EHPAD as soon as it presents a loss of autonomy, the CNCDH recommends that the intermediary forms between EHPAD and home care initiated by local authorities, social welfare agencies and associations, in close consultation with families, which constitute the first social relay of older persons, be further encouraged and developed.
I-4.4. Respect for privacy and family life in EHPAD
31. In order to respect the right to privacy and the right to respect for privacy and family life, the CNCDH proposes that certain measures be effectively implemented: installation of specific places of visits for meetings with families, provision of rooms for remote families, schedules of visits compatible with the possibilities of families, right to the telephone. Similarly, people are sometimes infantilized (killing by staff or using the third person) and their privacy is not sufficiently protected.
32. In addition, the emotional and sexual life of older persons must be respected. The sexuality of the elderly, especially those in institutions, is still a taboo, even though it is an important issue for the people concerned. The right to privacy in EHPAD is specifically recalled in the Charter of the Rights and Freedoms of the Dependent Old Person (15). This intimacy includes sexuality. Section 4 provides that an elderly person "must be protected from actions to separate it from a third party with whom, in a mutually agreed manner, maintains or wishes to have an intimate relationship". So the staff has no right to oppose it. If the family can be informed of the emotional life of the elderly person, their agreement does not have to be collected.
Finally, it is necessary to take into account the recommendations of the Charter of the Rights and Freedoms of the elderly in situations of disability or dependency (16), especially with regard to the person's access to the religious and spiritual activities of his or her choice. While efforts in this direction have been noted to the breasts of public institutions, the CNCDH recommends encouraging private institutions to do the same.
33. The influence of sects in institutions is consistent. They use the isolation of older people to influence them. The sects manage to return to institutions and to interfere with the elderly in a number of ways: by training organizations (20% of these bodies belong to or are influenced by sectarian movements), by agents or by volunteers. The effectiveness of sectarian circles can be explained by a lack of affection and a great loneliness among the elderly, by the greatest distance granted, over time, the elderly to material property, but also by the alteration of the physical and intellectual capacities they suffer.
The influence of sects in institutions is also denounced by MIVILUDES in its last report of April 2013 (17).
Faced with these risks, the intervention of neutral external control is required. This control in public and private health, social and social health facilities could intervene unannounced (without necessarily filing complaints or reporting). It would be an effective way to combat sectarian powers, more generally to see any violation of freedom or dignity. CNCDH recommends that measures be taken to combat the right of sectarian movements.
I-5. Mechanisms to strengthen the effectiveness of rights
I-5.1. Supporting caregivers
34. Family caregivers are those who help a loved one, on a non-professional basis and on a regular basis, for health or disability reasons. They play an essential and increasingly recognized role in supporting the autonomy of older persons and persons with disabilities. In France, eight million people assist and aid financially or morally from sick or dependent relatives. The current system raises the problem of articulation between family caregivers and professionals and disproportionately weighs on family members, especially women.
The CNCDH recommends a better recognition of the role of caregivers in drawing on article 26 of ILO Convention 168, although France has not ratified it to date (18). Aids exist, but they are not sufficient, and especially they are often unknown to dependent persons and their families.
Inform and disseminate existing rights.
35. Older people and their families face a problem of access to rights due mainly to a lack of information on their rights. These barriers lead to a risk of non-remediation and non-compliance, particularly when the person is in a vulnerable situation. Thus aid devices such as personalized self-help (APA), assistance in the acquisition of complementary health (ACS) or remedies such as "skilled people" are not mobilized because of lack of knowledge. This lack of information is likely to place the elderly "out of their rights".
CNCDH recommends better information on the rights that older persons and their families can enjoy and better dissemination of these rights. It also recommends that the right to appeal against decisions of older persons be further promoted. To this end, CNCDH therefore recommends the development of forms of mediation by third parties between the elderly and their families.
The role of agents and reform on the protection of majors.
36. La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La Act No. 2007-308 of 5 March 2007 Reform of the legal protection of majors entered into force on 1 January 2009. It is the culmination of several years of work with the main actors in the sectors concerned.
This law has made real progress, but there are still difficulties in implementation. In particular, it was able to organize in advance the protection of majors by creating the future protection mandate. This is a contract by which the individual chooses the person who will be responsible for his or her business on the day that he or she can no longer do it himself, because of his or her age or state of health. But the number of mandates remains low, although it is increasing (19). CNCDH recommends that information be developed on the future protection mandate.
37. TheArticle 450 of the Civil Code provides that legal protection measures for adults must be prioritized by a family member or a family member, whenever possible (20). This is still an assistance provided by the family, so it is important to help family guardians, given the complexity of this mission.
A provision of information and assistance provided by a judicial agent for the protection of majors (MJPM) exists but is still too little developed. CNCDH therefore recommends increasing information and assistance to family guardians.
Provide better training and support to institutional staff.
38. More than anything else, EHPAD personnel are recurringly confronted with addiction, illness, disability. In addition, the number of staff in question is less and less, the work is increasingly being done with "tense flow". Thus, this situation increases over time fatigue, stress and allows for wear for staff, which can sometimes lead to depression or abuse.
39. In this regard, it is necessary to add that the functions are unpaid and are not valued. All of these findings sometimes lead to a significant turnover of staff in structures, thus mitigating the quality of services.
CNCDH recommends support to the closest teams, by qualified professionals, who can provide listening and support, and can identify or prevent the risks of expressed or underlying suffering.
CNCDH also recommends that greater importance be given to the need to provide training throughout the staff's career, in order to update professional practices. Staff employed for a short period of time must also be trained.
II. ∙ The Place of Older Persons in International Law
40. To date, there is no international instrument on the protection of the rights of older persons, but the main human rights instruments refer to "old people" implicitly or explicitly (21).
41. In addition, a series of non-binding texts or devices within the framework of the United Nations General Assembly directly addressed the issue of older persons, devoting it as a global political priority (22).
42. The Second United Nations World Assembly on Ageing, held in Madrid from 8 to 12 April 2002, adopted a strategic document to guide action on ageing during the 19th century, known as the "International Plan of Action on Ageing, 2002".
43. The " Madrid Plan" includes recommendations, grouped into three priority directions: seniors and development, promotion of the health and well-being of older persons and creation of a supportive and supportive environment.
44. This international action plan has been declined in regional implementation strategies. The regional implementation strategy for Europe was adopted in Berlin in September 2002 at the Pan-European Ministerial Conference on Ageing. The follow-up to this strategy was entrusted to the United Nations Economic Commission for Europe (UNECE or UNECE), which has a working group on ageing, whose mandate was renewed in 2011 for three years. France participates in the plenary meetings of this group but is not a member of the office.
45. The second cycle of evaluation of the implementation of this regional strategy was completed on 19 and 20 September 2012, at a ministerial conference held in Vienna, to which France was represented by the delegated minister for the elderly and self-government. On that occasion, each Member State had submitted a report on the follow-up to the plan for the period 2007-2012. These reports, as well as the synthesis report, provide valuable information on the ageing policies implemented in each country. For example, information on the Federal Plan for Senior Citizens (2008-2010) adopted in Austria is available. This plan provides guidance and objectives to be followed, at all levels of governance, for the social integration and quality of life of older citizens and was presented by the EU as a unique example of good governance of active aging in Europe.
46. The declaration of ministers published at the end of the conference has refocused the follow-up activities of the strategy around four priority areas:
encourage the continued employment of seniors;
- to develop solidarity between generations;
- promoting the participation, non-discrimination and social inclusion of older persons, especially women;
– promoting the dignity, health and independence of the elderly.
47. The jurisprudence of the European Court of Human Rights on the rights of older persons is not abundant, in part because the European Convention (1950) contains no explicit provision on older persons. the Court often relies on specific situations, disability, vulnerability or dependency, particularly economic, that have a direct impact on the rights of older persons. Thus, the Court takes into account the special conditions of older persons in its implementation of the Convention (23).
48. At the international level, some countries support the development of a specific international instrument on older persons. This idea has already begun to materialize within the United Nations. Conversely, the strategy adopted at the regional level (European Union and Council of Europe) is to strengthen the effectiveness of existing rights.
49. At the UN level, following General Assembly resolution 65/182 of 21 December 2010, a working group on the protection of the human rights of older persons was established. This working group was tasked with developing an international convention despite an atypical vote that was not favourable (24). The themes envisaged are those of social development, human rights, non-discrimination, gender equality and the empowerment of women.
50. In addition, Human Rights Council resolution 21/23 of 24 September 2012 calls upon the Office of the High Commissioner for Human Rights to organize, in Geneva, intersessional public consultations on the promotion and protection of the human rights of older persons.
51. At the European level, the Council of Europe's Steering Committee for Human Rights (CDDH) decided in February 2012 to establish a drafting group (CDDH-AGE) to develop, under the authority of the CDDH, a non-binding instrument of the Council of Europe on the promotion of the human rights of older persons. Beyond the general principles, the Council of Europe instrument will include a collection of good practices. The future recommendation will address States and civil society actors and the general public.
52. The European Commission supports the development, under the auspices of the Social Welfare Committee, of a voluntary framework for the quality of social services providing guidance on how to establish, supervise and evaluate quality standards. This initiative is part of a strategy that includes funding (through the PROGRESS) of transnational projects, with an upward approach, to develop mechanisms to define, measure, evaluate and improve the quality of social services. Among the projects funded under this framework are the We do project (well-being and dignity of older people), which was closed on 14 November 2012, and involved 18 partners from 12 countries and has provided good practices in preventing abuse of older persons.
53. The EU considers that the effectiveness of the rights of older persons is a better application of the existing normative corpus. According to the EU, "from a human rights perspective, existing human rights standards and principles are the framework for the exercise of human rights by all, including the elderly. The current international framework addresses many aspects of today's discussion and the implementation of these standards should be the main tool for the protection and promotion of the human rights of older persons (25)".
The development of an international instrument on older persons poses practical and legal difficulties. The problem of defining the concept of an elderly person, cultural differences and demographic differences are all elements that do not facilitate the development of an international instrument. Therefore, the CNCDH does not advocate for the development of an international instrument.
Conclusion
54. CNCDH considers that fundamental rights must be respected at any stage of life. It considers that the approach to effective implementation of the rights of older persons is to combat discrimination. Indeed, the rights of older persons are neither contested nor ignored, but they encounter persistent obstacles in the effective exercise of their rights. For the CNCDH, it is therefore necessary to ensure better application of common law and to combat all forms of age-related discrimination in order to make the rights of older persons effective.
(Not unanimously adopted.)
