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Launch Event
Human Rights & Older People Working Group
‘Human Rights and Older People in Ireland –
Policy Paper’
December 10, 2013. Dublin.
‘Age: From Human Deficits to Human Rights – Reflections on a Changing
Field.’
Professor Gerard Quinn,
Project Lifecourse,
Centre of Disability Law & Policy, NUI Galway.
www.nuigalway.ie/cdlp
Dedicated to my mother-in-law, Mary Motherway, whose radiant sunshine in old
age shines brightly for all in her family & community.
1
Today is a special day.
The Policy Paper launched this morning marks a watershed in the evolution of
thinking about older people and their rights in Ireland. Boundaries are being re-
set. New possibilities for positive change are coming into view.
I congratulate the organizers and all the members of the Human Rights and Older
People Working Group – the Alzheimer Society of Ireland, the Irish Council for
Civil Liberties, Age and Opportunity, Third Age, the Public Interest Law Alliance,
Age Action, Active Ageing in Partnership and Active Retirement Ireland – on your
sterling work which is both a turning point and a great beginning.
It is a great honour to speak at this launch. I think it altogether fitting that
Senator Fergal Quinn will respond – given the ambitious and even
entrepreneurial spirit of the Policy Paper. When I read the Policy Paper I kept
thinking to myself ‘here are the new policy entrepreneurs in Ireland on ageing.’
One of the true greats in law – Justice Oliver Wendell Holmes used to say that
whenever you confront new ways of thinking about things you should pour a
healthy dose of cynical acid over it and see if anything remains. I am very much
of his skeptical frame of mind. Yet I am glad to say both this Policy Paper and the
human rights approach its embraces passes the Holmes test with flying colours –
and offers new ways of framing issues.
I use the word framing advisedly. If we zoom out from age for a moment, it is
obvious, at least to me, that we are probably at the beginning of a large transition
in Ireland – and indeed in Europe – away from traditional ways of doing things.
Clearly our economic model needs to be fundamentally changed if we are to find
new and sustainable ways of generating wealth. But our social model too stands
in need of radical change. Wealth transfers alone will not bring about the kind of
social cohesion that lies at the bedrock of successful economies and societies.
2
This then is a period that entails deep structural change and a massive re-
imagination of our social model. The re-framing of age as a human rights issue
coincides with these underlying structural changes. There are many risks – but
there are also huge positive opportunities. You might say it is an opportune
moment to engage in a re-framing of age as it gives us the freedom to think
differently, to act differently, to solve the seemingly insoluble and to reframe
public policy accordingly. So a key moment has arisen today and we need to
take full advantage of it.
In this short presentation I want to:
Set out why I believe there is added value in the process of re-framing old
age from a human right perspective and comment in passing on some of
the key Recommendations of the Policy Paper that touch a raw nerve.
I want to briefly link your journey on re-framing age as a human rights
issue in Ireland to the journey taking place in the UN on the possible
drafting of a new UN Treaty on the rights of older people and invite you –
all of you - to get involved
And I want to make a few comments on the fit between your Policy
analysis with the Government’s Positive Ageing Strategy. There is much
in the Strategy that resonates with the human rights perspective and that
needs to be built on. And there are elements that might be added to
round it out and keep it going in the right direction. Ireland is one of the
few countries in the world to have such a Strategy and for that reason I
think we – as a Government and as a people – should be especially
motivated
to put our backs behind the drafting of a new UN treaty on the rights of
older people.
3
1. The Added Value of the Human Rights Perspective.
Taking the metaphor of the entrepreneur forward for a moment, the question
that immediately arises from the Policy Paper and its analysis is what exactly is
the added value of the move to the human rights frame? This is a fair question.
And indeed some might be interested in exploring not merely the added value
but also the risks moving to a rights framework since it is sometimes expressed
as confrontational – an upsetter of shared visions rather than the bedrock of
shared visions. That too is a fair question since every new frame has its own
blind-spots.
I have three ways of answering this core question.
Human Rights entails a Paradigm Shift away from Deficits-Thinking.
First of all, the move to the human rights frame is – as we say in public policy - a
true paradigm shift – one that demands that future policy – whatever it is –
should not be deficits-based or fixated. Frameworks of reference are
inevitable – we cannot make sense of the world without them. They give you a
way of seeing reality, a new way of judging reality and a departure point for
articulating a different vision of what might be. Needless to say, new
frameworks of reference or new paradigms will also be defined by what they
exclude as well as by what they include. So the question on balance is always
whether the move to the new paradigm adds anything significant over what
preceded it. And, if there are risks with the move to the new frame are they
worth it and can they be mitigated?
I believe that it does add much of significance. Why?
To grasp the significance of the shift and its power to point in new directions lets
just recall where we are coming from. Lawyers love to talk in terms of group
identity and grounds of exclusion or discrimination. The way we treat certain
groups says a lot about the quality of our democratic life – whether it is truly
open and tolerant to the ‘other.’ And it says a lot about our attitude to the ‘other.’
4
Exclusion, marginalization and discrimination against people on account of their
race or religion or ethnic original probably reveals a deep animus bordering on a
hatred and fed by stereotypes.
Yet the ‘discounting’ of older people is a bit different. I say ‘discounting’ because
it sometimes feels as if older people are viewed and treated as being somehow
less human, less deserving of respect and less part of the mainstream. And this
unbelonging can be easily portrayed as somehow natural or inevitable and not
the result of human or social choices. This ‘discounting’ seems deeply etched in
our collective responses to old age and to indeed to disability. The deficits
mentality is all the harder to dislodge since it is often portrayed or experienced
as ‘natural’ or ‘inevitable.’
To put the matter more bluntly, this hidden ‘discounting’ of the humanity of
older people has led to public policy based in the past at least implicitly on a
deficits-based view of older people. Older people are not expected to work –
regardless of their ability to work. Older persons are assumed to have declining
faculties – so protective measures are put in place to guard their interests –
measures which tend neither to protect nor advance their interests. Note how
easy it is for ‘protective’ measures to themselves become engines of oppression.
Even if capacities are in decline they certainly accelerate with inappropriate
public policy responses such as needless and indeed costly institutionalization.
Even if institutions are intended as protective measures they have tended in the
past to simply expose people to abuse. Part of the discounting is the seeming
impunity that atached to what happens behind closed doors. The decline in an
older persons’ social network is often seen as inevitable as one’s friends and
acquaintances pass away. This is despite the fact community for many of us is
intentional and can be created and not just confirmed by appropriate social
policy.
To all intents and purposes, public policy over the decades since the foundation
of the State has tended to be built on a premise of deficits. In a way this just
5
serves to copperfasten the ‘civil death’ of older persons. Think of the public
policy priorities of the past:
Silence: the imposition of vastly over-reaching guardianship laws
that took voice away and needlessly eroded capacities instead of
augmenting them.
Passive dependency through the welfare system: A reliance on wealth
transfers through the social welfare net with associated benefit traps that
needlessly impoverished.
Removal from community: institutionalization and the expansion of
nursing homes without innovative options to maintain people in their
communities.
The Overhang of the Medical Model - Health and Not Justice as the
Primary Policy Default: the further medicalization of the person
building on ‘deficits’ leading to ‘needs’ leading to ‘services.’
Funnily enough, we express the journey to human rights in the context of
disability as a trip from a ‘medical model’ of disability which problematizes the
person to a social model of disability which locates the ‘problem’ in the lack of
responsiveness in social policy. It seems you still have – at least implicitly - a
medical model in the field of ageing. This really stands out in the analysis in your
Policy Paper. There is a plethora of policy papers, laws, programmes on health,
wellbeing and related health services on age. Who can be against wellbeing! Yet
in a way – whether unintentional or not – this emphasis seems to reinforce the
fear of deficits which has further negative implications for policy development.
It is clear that the menu of traditional responses is too meager – too much based
on deficits thinking. Now, let me anticipate a possible response. Why not build
public policy on a theory of deficits since deficits do exist? Lets not allow
ideology cloud reality. Well, human deficits are of course real. And policy
6
makers must build policy not on ideology but on reality. But actually, deficits are
fairly evenly spread throughout life. The truth is that deficits form part of the
universal human condition and are not confined to older people. They are not
peculiar to older people. And many, if not most, older people live fairly healthy
lives – certainly relative to the past.
There seems to be an implicit policy fatalism in the sphere of ageing – aging is
too quickly equated with the inevitability of declining faculties. The resulting
deficits are attributed regardless of the facts. A form of social determinism takes
hold which foregrounds something that is actually background to the human
condition –namely the deficits we all have. They may become accentuated at a
particular point in our life’s journey – but why make deficits the foreground
consideration in policy formulation? It is this link between deficits-thinking
and policy making for older people that simply has to be broken. And thats
the key to understanding the real added value of human rights.
Isn’t it funny - or at least strange - that the logic of human rights which is
supposedly universal and is therefore applicable to all persons (and all should
mean all) has in fact played only a marginal role in the evolution of elder policy
in Ireland and indeed throughout the world! Its a bit like the American
Declaration of Independence that declared all men to be free but then continued
the institution of slavery – and without any acknowledgement of a contradiction.
It is equally strange that policy makers did not see the link and indeed that older
people themselves did not conceptualize their just claims as having a human
rights home. Curiously, the more older people argue for marginally more
resources the more they unwittingly reinforce the deficits mentality and the fear
of uncontrollable claims on resources.
Which leads me to suspect that the logic of human rights has often been
deflected by inherited cultural assumptions that somehow the ‘other’ is different
and that the treatment of the relevant issues outside the human rights domain is
somehow ‘natural.’ It often seems to me that the history of human rights is really
a history of gradually admitting all of humanity – group by group - into its fold.
7
The latest group to be specifically embraced are people with disabilities and
largely on account of the new UN disability treaty. This has yet to happen for
older people – but it is inevitable as cultural assumptions especially about
deficits are being eroded in the 21st century.
The New Frame is anchored on Voice, Choice and Flourishing – and leads to
radically different policy prescriptions.
Secondly, the underlying postulates of the human rights framework not only
point away from deficits thinking but help paint a powerfully transformational
future for older citizens.
If policy making on deficits is not allowable – which is not the same thing as
saying that deficits don’t exist and should not be accommodated – then what is
the alternative?
All law and public policy is inevitably based on some choice of postulates or
underlying ethics. To paraphrase Justice Holmes again, it is the external deposit
of out communities’ deeply felt needs and morality. Well, what are the core
moral postulates of the human rights frame and how do they enable us to view
the issue of age differently? Your Policy Paper expertly slices through the
various legal distinctions that must always be borne in mind like the difference
between civil and political rights on the one hand and economic, social and
cultural rights on the other. I will not bore you with a parsing of the law –
whether international or constitutional.
To get at the heartbeat of the value of the human rights frame I want to leave
legalese to one side. I bundle these core postulates of the human rights frame –
postulates the animate the various rights and help drive change - around Voice,
Choice, and Human Flourishing.
Voice: Take voice. Jean Jacques Rousseau once said no one can speak for you –
meaning no one has the moral authority to speak for you – you have to be
allowed space to speak for yourself. Lets be honest and lay out the various
8
rationales we all fall back on to justify silencing or taking voice away from many
groups of people including older persons. These rationales are deeply encoded
in our culture. Slowly the person morphs into an ‘object’ – not a ‘subject’ with
equal rights of self-determination. And of course the more inured a person is to
the process of objectification the more they internalize its signals about
deficiencies, incapacity and ultimately dependence – a neat self-fulfilling cycle.
In the clinical dryness of the literature this is known as ‘spoilt identity.’ Having
and keeping your own voice to shape your own personal destiny in matters big
and small – and often the small ones are the most important or constitutive of
who you are as a person – is important for everyone – and that includes older
people. But is remarkable about how quickly we tend to reach for the opposite
conclusion.
If I may be allowed to digress, this is why the debate in the Oireachtas at the
moment on the Assisted Decision-Making Bill is so important to older people and
not just to people with disabilities. Indeed, your Policy Paper rightly highlights
this. This Bill is all about taking back ownership and direction in your own lives.
A human rights-based public policy should not respond to deficits in decision
making by taking away the right to make decisions – it should respond with
appropriate supports to augment and maintain capacity and enable people to
continue to express their own will and preference – and crucially – to have that
will and preference respected.
I have often referred to legal incapacity law as a cloaking device that indecently
conceals the person. Some times – its opposite – guardianship which entails
placing decision-making in the hands of third parties is justified as a form of
protection. But reflect on this. The need for protection (which we all have from
time to time) is being used to take away voice from the person – surely a
profoundly disproportionate response. A better way of responding to decision-
making frailty is needed short of silencing the voice of the person. Once voice is
denied it is hard to re-ignite it.
9
The Government deserves credit for re-framing the Assisted Decision-Making bill
away from the guardianship Bill which surfaced in 2007. But the new paradigm
– assisted decision-making – still sits uneasily in the existing Bill alongside an old
one – guardianship. Amendments will be needed in the Parliamentary process to
clarify the assisted-decision making regime, to place parameters around the
duties of the supporters and to ensure that the new institutional architecture
that emerges to oversee and grow assisted decision-making is fit for purpose.
Certainly it will not do to place this oversight responsibility in a body narrowly
tasked with more traditional protective functions like the Office for Public
Guardian.
This process of reform directly affects you. I know that the Alzheimer Society
of Ireland and Age Action are closely involved among others in the civil society
group working on the Bill. This is as it should be and fits perfectly with a new
human rights based agenda of work. I cannot praise the Society and other age
groups highly enough for putting its shoulder behind the wheel. This is human
rights work at its most constructive.
Voice is not only individual but also collective. We have a useful slogan in the
disability sphere – ‘nothing about us without us.’ Much has been observed and
written about the emergence of social action groups on disability over the past
30 year in many countries including Ireland. It seems to me that social action
groups on older persons are just beginning to find their voice and their feet. This
is as it should be. You are the experts in your own lives live – not us in academic
institutions and not us in NGOs. Without a doubt the UN disability treaty turned
out so well because of the the massive input of DPOs – disabled persons
organizations run by and for disability people - and not just NGOs. Hopefully we
will now see the growth of OPOs – older persons organizations. – run by and for
older people! Finding a collective voice gives you a chance to nudge the re-
framing of public policy. And finding a voice helps to valorizes your own
perspective as well as grow in confidence and competence to engage with policy
makers. Your Policy Paper talks of the emerging trend of older persons doing
their own research, formulating their own policy changes and advocating
10
accordingly. This is fabulous – always remember Rousseau – no one can speak
for you – you should speak for yourselves.
And voice means having a say in matters that directly affect you. This does not
mean you have a veto: for to govern means to choose and Governments have to
balance many competing interests. But you have to be at the table when matters
directly affecting you are being discussed. By the way, some Governments
around the world require their civil servants to engage with empathy
programmes which could mean living with a family with an older relative before
embarking on a policy writing exercise affecting older persons. The much
heralded shake-up of our public services should be about more than just
squeezing more from less – but should entail radically different ways of doing
buainess. What better way than through empathy programmes for senior civil
servants.
Speaking of collective voice, I hope at least some of you have taken up the
invitation of the Constitutional Convention to make a submission on the rights of
older people. I know Age Action have. More of you should.
A word of caution – with rights comes responsibilities. When in anger it is
always useful to paint your grievance as a violation of a right. This is the classic
lawyers’ approach. However, I would encourage you to think beyond the
crabbed worldview of the lawyer whose natural (and healthy) reflex is to
directly challenge power. That is needed but you have to go beyond it. The
deeper logic of rights points to a joint effort to create and continually re-create
public policy. It is never enough to march into a Ministers Office (or picket it)
demanding that X practice ends as it violates Y right. That's the easy part. If you
are serious about rights – and the politics of rights - you will need to take the
next step and increasingly see yourselves as policy entrepreneurs – people who
come forward with practicable and positive blueprints for change. By and large,
Ministers know whats wrong – they don’t need to be told by you. But they are
starved of ideas about change and how to make change happen. Think-tanks can
do this – but then they don’t represent you. Academics can do this – but then
11
they don’t represent you. Only you can represent you. This is a new space
opened up by the human rights frame – don’t rest content with the easy job of
showing a gap between the ideal and reality – help push forward toward the
ideal. Don’t wait to respond to a Bill – put forward your own ideas about future
legislation and policy – and put flesh on them. I see this ambition shining
through in your Policy Paper – and it is a breath of fresh air far from the
formulaic incantations of the lawyers.
Of course you want voice to have political impact. Lets be frank. Here you have a
huge communications problem here. Because of the deep roots the deficits
philosophy has sunk in our collective imagination – and the resulting and
constrained imaginative boundaries of policy keepers – all your arguments and
pleas for change are likely to be almost instantly deflected. The narrative of
policy makers tends to be narrow and in the elder field it amounts to a simple
and crude equation of old age with costs to the Treasury. Even if there are no
immediate costs it might be seen as setting in train a process that leads to costs.
And the deflector shield will be all the more strong if the costs are unpredictable,
potentially unmanageable and might have an allegedly distorting effect on other
policy goals. And even if it has no conceivable costs it might embolden others to
bring forward claims that will have future costs. Set against this impervious wall
you may win some victories – but unless you alter the way the policy narrative is
framed you will never advance on a broad front.
Strangely enough – or maybe not- your task is to demonstrate that the human
rights approach to old age is not primarily about costs. It often seems that the
default setting in policy debates about ageing are that we are speaking of deficits
and somehow these deficits have to be handled which inevitably means costs.
You have to turn that around. The primary objective of public policy should be to
find ways to enable people to flourish – to remain in charge of their own lives in
the community with an engaged and engaging life of social connectedness.
Sometimes that costs – sometimes it doesn’t. More often than not it requires
smart Government policies and nudges to stitch back together the social web
that makes our individual lives meaningful – and not so much direct wealth
12
transfers. Lobbying hard on the Assisted Decision-Making Bill for example
demonstrates how you are seeking real change that transforms lives without
drawing directly on State funds. The more you do that kind of lobbying the
weaker becomes the chain link between of age, human deficits and costs.
Of course, there are still costs. And here we come to the vexed issue of economic,
social and cultural rights – which has been a major source of input to the
Constitutional Convention from a wide range of social actors. It has often struck
me that our understanding of economic, social and cultural rights are undergoing
a transformation and that groups like the elderly can be prime beneficiaries of
this change. I think these rights should increasingly be seen less as ends in
themselves and more as a means to an end which is personal flourishing and
civic connectedness. Indeed, our President, Michael D. Higgins, has spoken
recently about the need to break away from the binary metaphor of ‘services
meeting needs’ and talk instead of the material underpinnings to citizenship. I
think he is entirely right. Be careful in your enthusiasm and advocacy of
economic, social and cultural rights. The more you press the argument for even
marginally more resources you tend to unintentionally reinforce the deficits
default. That is, regardless of your intentions, the arguments will be refracted
through a prism of deficits that incur costs. Argumentation for these rights has
to be much more nuanced to get away from deficits -and the compensation of
deficits.
What might be interesting to you is how we – in the European Social Rights
Committee in Strasbourg – conceptualized these rights in the context of inclusive
education for autistic children:
The underlying vision of Article 15 [pof the European Social Charter] is one of equal citizenship for persons with disabilities and, fittingly, the primary rights are those of “independence, social integration and participation in the life of the community”. Securing a right to education for children and others with disabilities plays an obviously important role in advancing these citizenship rights.
Note, we foregrounded a positive philosophy of the rights which was to underpin
equal citizenship – and backgrounded the material provision to meet a need.
This is a much better way of arguing for the rights. Furthermore, it brings out an
13
essential truth hidden in the thicket of economic, social and cultural rights which
is that when applied properly they aid States in identifying inefficiencies
and inequities. So instead of being a side-constraint on the jealously guarded
spending prerogatives of Government, when used properly, they assist
Government in increasing equity and efficiency.
Choice: A much more positive vision for social justice and rights comes through
when we invoke the second postulate in my trilogy of human rights values I want
to focus on – which is choice. When I say choice I don't mean the right to make
decisions – that is covered by voice. I mean choice about the big decisions we all
face which is the context we choose – the home we choose – to be ourselves and
to interact with the world.
Our homes are not just bricks and mortar. They express who we are. They hold
memories – the ‘mystic chord of memories that bind us together.’ They are
portals into our community. We are constantly in a process of individuating
ourselves – but this process of acquiring and to a certain extent changing identify
is a profoundly social process. Its funny how legal theorists prize the forum
internum – the world of the free conscience of the person where lifeplans are
freely formed – and the forum externum – the interaction of the person in the life
world whether employment or sports, etc. But they miss out on the important
bit in the middle – that bit that enables us to be who we are in interaction with
our environment and on our own terms. Home.
Now here is where the human rights frame is both real and radical and
genuinely adds value. Let me switch track for the moment to bring this out in
the context I know best – disability. By the way, I am not to be taken as viewing
older people as disabled. I am just trying to tease out what the disability treaty
tells us about community living and its cross-over value in the context of old age.
The UN disability treaty – a treaty that seeks to reveal the person behind the
mask of disability and that seeks to place disability policy on an entirely different
pedestal than deficits - is a case in point. Famously, Article 19 of that treaty
14
affords people with disabilities a right to chose where to live and with whom and
an associated right against being forced to live in particular living arrangements.
Now of course this doesn’t guarantee me a house in Ballsbridge – much less
Kinvara. But it does go a long way toward centering the person in the choice of
their own home – which is their main portal to the community. We still have a
long way to go on this in the disability field. But the bar is now set very high.
Institutions – including mini-institutions - are presumptively incompatible with
the treaty. The Governments 2011 ‘Ending Congregated Settings’ Report is
admirable in its goal to close down even mini-institutions in this country in the
field of disability. This is happening throughout Europe.
But as the right to live in the community is being afforded to people with
disabilities in the community it seems that institutionalization is enjoying a
revival in the field of old age. What an interesting and obvious disconnect. And if
the argument is that we need these institutions to handle deficits then why seek
to abolish them on the ground of disability and, at one and the same time, expand
them on the ground of age. It makes no sense.
Parenthetically, your Policy Paper emphasizes the lack of legislation
underpinning the right to live in the community and access community-based
services for older people. This is as true for other groups as it is for older
people. I think the time is right for several such groups to come together and
actually draft a model statute to present to Government on the right to
community living for all including older persons.
Choice does not come in a vacuum. Our choices are bound by many hard
variables like cost and practicality. But choice is also skewed by how services
are designed and implemented and monitored (or not monitored as the
case may be). Depending on how they are designed and managed we may be
left with little or no choice. You specifically highlight this in your Policy Paper.
Article 19 of the UN disability treaty is again an interesting case in point. It
ensures – and I paraphrase – a right to have services personalized. You go out of
15
your way in your Policy Paper to say that older persons are not a homogenous
group. How true and how equally true for others like persons with disabilities.
Yet here again we see the pernicious effects of deficits-based thinking prevail at
least in our history up to now. The service model we built from the 1950s
onwards is – to put it politely – unfit for purpose. Again, there does seem to be a
deeply ingrained patronizing air in the very binary logic of ‘services to meet a
need.’ Needs met – job done. This is especially so when you remember that
services were designed with broad proxies of need in mind – not real people.
And the services of course grew a momentum of their own – a resistance to
change – and a preference for tying resources to institutions with the added
difficulty – or accountants nightmare - of unbundling the funding.
Silos seem to have a particularly pernicious effect on older people as well as
others. I recently went on public record to criticize a situation whereby a family
whose disabled child had their transport support removed had to end up placing
that child in an expensive institution. We – the taxpayers – end up paying more
for an outcome that was clearly not desired. I portrayed this as highly irrational
– until an economist friend said it was highly rational since the cost was passed
from one silo (transport) which couldn’t afford it into another one (residential
service) that could. But this is a perverted form of rationality and a symptom of
how the legacy way of doing things needs to be radically reshaped – with clear
benefits to all including the taxpayer.
Your recommendations focus on transforming service delivery from within
though for example, the incorporation of human rights standards within service
Level Agreements. I would be even more ambitious and call for a complete
overhaul of the present system.
Zooming out of age and disability for a moment - it has often struck me that this
mid-20th century model of welfare is way past its due date. A new kind of
imagination is needed to re-create a different social model – one that underpins
older people as active citizens. Again the disconnect with disability is striking.
In disability all the talk is about demand-side solutions which means devolving
16
resources to the person with appropriate support. IT now makes that possible.
And an equal amount of talk is given over to a new support landscape – one
where tendering for contracts is the norm and not the exception and where
persistent failure to perform entails a proscription from bidding. Indeed, many –
including myself - take the demand-side solution so far as to enable the person
purchase services which are not necessarily sourced from the usual sources. It
follows that the main purpose of services should not be to passively maintain
people – ‘squatting anxiously at the edge of society’ but to help build bridges into
the community. The challenge to the services sector is huge and I often have my
own doubts about the ability of the service sector to turn around and totally re-
engineer what they do and how they do it. It would be interesting to hear
Senator Quinn’s take on how to re-imagine the service sector to really serve
people.
Either way, a major shake-up is needed in both the disability and old age service
sector. Eddie Molloy has been saying this for years. The great merit of your
Policy Paper is that you bring this right to the surface of debate. There has been
a lot of talk on this service revolution over the past 20 years in disability. The
difference between disability and old age is we now have a model for
Government to pursue on disability. Government just needs the courage to say
to the service providers – shape up in 5 years or else you are out. Its not
primarily a matter of money. Several billion are spent every year on disability. I
am personally impatient for the Government to pull the trigger on the service
sector. You too need to develop new models of services in the age field. Again, it
would be really useful to combine forces and draft an Act on the right to
community living with all that that entails for services.
Voice and choice are ends in themselves – but they also enabling human
flourishing to take place.
Flourishing: It is not often you will hear a lawyer talk about flourishing. It is
often said half in jest that a lawyer’s mind is generally sharp but often at the cost
of narrowing it. The sum of the various rights, the right to life, freedom for
17
inhuman or degrading treatment, freedom of expression, due process, education,
social protection points to a vision of human fulfillment and flourishing in civil
society. This entails a concession of human agency – everyone is to take charge
of their own lives – as well as space for human expression in the world.
Protection yes – but protection on an equal basis with others and not as an
aspect of the inevitable deficits of ageing. Social protection yes – but not social
protection to cushion people outside the mainstream (a form of State funded
apartheid) but protection to enable social engagement to take place.
The thing about flourishing is that it brings out not just our individual selves but
also our social selves. It is self-evidently true that the more socially embedded
we are the more we flourish as persons and as citizens. The best protection of
persons is not done through health & safety laws which tends toward the over-
regulation of the person – it is having friends. The best preserver of memory is
conversation. Our sense of self depends on the quality of interaction with the
other. Starved of this it is no surprise that the human spirit flags. We all go
through cycles with different people in our lives – different communities
whether intentional or not - that provide the scaffolding to our identity. It
seems what we now need most is not just wealth transfers to compensate for the
inevitable deficits that arise when our social fabric decays but also smart
interventions to connect community to the person. Its strange how our inherited
social model cannot seem to get to this.
So the Human rights framework is just that – a completely new way of viewing
age that, while not ignoring human deficits, does not use the reality of deficits as
its starting point. It offers new vistas by focusing on the restoration of voice,
embeddedness in community as an aspect of the right to community living and
which sees compliance less in terms of formal adherence to rules and more in
terms of human flourishing as an outcome. All of which point toward a
revolution in how services are imagined and delivered in Ireland. Much of this
has been said before – but never with the moral force that your Policy Paper
commands today.
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2. The Process for drafting a new UN treaty on the rights of older
People.
Zooming out even more, your Policy Paper alludes to the process for drafting a
new UN treaty on the rights of older people. Very few people know that there is
a process underway in the UN system for reflecting on human rights and older
people and specifically whether a thematic or specific treaty on the rights of
older people might be required. Few know that our EU Governments are mainly
opposed to this treaty.
This affects you – and the opposition to it in the UN is being done by our EU
Governments in your name. Make your own views known – whether for or
against. Get involved.
Personally I favour such an instrument. One of the arguments used against a
new treaty is that the existing treaties are sufficient to handle the rights of older
people. In the dry language of the international lawyers it is said there are no
‘normative gaps’ and therefore no need for a treaty. This is misconceived for it
sets one off on a wild goose chase. Of course there are no normative gaps! There
never were. But having the norms in the existing treaties – e.g., the covenant on
civil and political rights - does not mean that they are applied. Older peoples
rights are often relegated to social rights – and social rights means (at least in
practice) compensating for deficits. It isn’t as if older people were explicitly
denied the benefit of the right of freedom from inhuman or degrading treatment.
It was just that their discounting meant that their treatment behind closed doors
was shuttered away from view. Likewise, in the disability context the problem
was never the existence of normative gaps – it was deep inconsistency in the
application of existing human rights – all stemming from the discounting of the
humanity of persons with disabilities.
So we drafted the disability treaty not to fill ‘normative gaps’ but to make it plain
that all the norms had equal relevance and applicability to persons with
disabilities. This means identifying the various barriers in the way of voice,
choice and flourishing and the crafting of obligations to remove those barriers.
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And we did not draft it so that it would stand in splendid isolation from the other
UN instruments but so that it would inform all of those instruments. Most
importantly we drafted it to underpin positive reform and to ignite reform where
it wasn’t happening throughout the world. On all counts it has been a
spectacular success. You need to think about the drafting of the UN treaty on the
rights of older people in the same way. Having such an instrument will provide
ever clearer guidance and impetus for change here in Ireland. This is your
process – you should own it. Don’t allow the key decisions to be taken behind
closed doors by EU Governments in Brussels.
To its great credit the Senate hearings last year on the rights of older people
concluded that a treaty was necessary. You should build on that.
3. The Positive Ageing Strategy.
Many criticize the Positive Ageing Strategy. I am not so harsh. Benjamin
Franklin once said that he had an aversion to drafting anything that would be
later revised by a committee. Well, the positive Ageing Strategy has all the
hallmarks of having gone through several committees. There are however,
several nuggets that connect well with human rights and that bear further
development. In a way your Policy Paper re-frames some of the positive pillars
of the Positive Ageing Strategy and foregrounds them. I am thinking particularly
of the commitment to remove barriers to participation and the commitment to
enable people to age with confidence, security and dignity in their own homes. I
did find it surprising that the second overall goal related to health and wellbeing
– only because similar goals – through laudable – are absent from similar
strategies dealing, e.g., with disability. Not being too close to the drafting history
I am not sure where this comes from. But it looks suspiciously to me like a
hangover from a medical model of ageing rather than a social model. Thats not
to say that the medical dimension is not important. But I wonder aloud that if
the document were written from the outset as a human rights charter whether
the medical dimension would enjoy so prominent a place.
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In conclusion, by helping to re-frame age from a human rights perspective you
have done a great service. It will strike many as unfamiliar. But this
unfamiliarity is itself a striking illustration of the reality that universal human
rights have yet to be made genuinely universal. It will strike some as utopian.
Yet it is this turn that will enable Ireland to re-imagine its service architecture
into the future and which will yield tangible outcomes and possibly greater cost
efficiencies. And it will strike some as confrontational. Yet it will no longer to do
to argue for marginally more resources. You will need to push the logic of rights
to contribute your own ideas about future law and policy and help craft
blueprints. For rights open up the door to policy entrepreneurship and the chief
merit of your Policy Paper today is you nudge the door open further and create
that space.
I salute the entrepreneurial spirit of this Policy Paper to re-invent and urge you
to take advantage of the new space it now opens up.
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