Going Grey and Facing Age Discrimination: Moving Towards an International Treaty on the Rights of Older Persons

Concerns for the wellbeing of older persons are rarely framed as human rights issues entrenched in age discrimination. This may now be changing after the shocking revelations of maltreatment and excess deaths of older persons in Canadian care homes in 2020.

The abuses exposed in 2020 were predictable consequences of Canada’s longstanding neglect of older persons’ fundamental rights. Decades of efforts by Canadian civil society organizations (CSOs) along with international CSOs, and UN human rights bodies may now be gaining traction in a drive for a United Nations (UN) treaty to spell out and guarantee the fundamental human rights of older persons around the world. But efforts may continue to stall until leaders in Canada and other countries come to grips with the root cause of the abuses – endemic ageism.

COVID-19 exposed Canada’s human rights abuses against older persons

Age discrimination has been called “the last acceptable prejudice.” Older people are familiar with quips about “senior moments” and “hey boomer” jibes. Those who object to the wisecracks are dismissed as not being able to take a joke.

The one-liners became darker in 2020 when COVID-19 was dubbed the “boomer remover” because of its disproportionate effects on those who were “going to die anyway.” Canadians stopped laughing when Canadian Armed Forces (CAF) health professionals were deployed in April 2020 to assist with COVID-19 outbreaks in several Ontario care facilities. The CAF report exposed dismaying maltreatment of older people who had been locked in, isolated, neglected, denied access to contact and care from relatives and friends, or even abandoned to suffer and die alone. More than two dozen care home residents died of dehydration prior to the arrival of the CAF “due to the lack of staff to care for them. They died when all they need[ed] was ‘water and a wipe down.’”

Canada’s death rate for older persons was nearly double the average for developed countries in the Organization for Economic Co-operation and Development (OECD) according to a report by the Canadian Institute for Health Information (CIHI).

Not all older persons in care homes suffered so dramatically. Nevertheless, families across Canada reported varying degrees of neglect, isolation, misuse of chemical restraints (drugs), and other inhumane confinement of their older relatives in understaffed care homes as visits were severely restricted or denied. The maltreatment of older persons in Canadian care homes was framed as “sad,” “deeply disturbing,” and even “gut wrenching” by Canadian and Ontario political leaders, but not as human rights abuses rooted in age discrimination.

Growing calls for global action to respect, protect, and fulfil the rights of older persons

Canada is not alone. The coronavirus pandemic has magnified and spotlighted longstanding age discrimination around the world. Since 2020, there have been intensified calls for action by civil society organizations as well as the UN Secretary-General, the UN High Commissioner for Human Rights, then Michelle Bachelet, and the UN Human Rights Council’s Independent Expert on the rights of older persons, Claudia Mahler.

What are the rights of older persons? Gaps in international law and Canadian law

Older persons have the same rights as everyone else, guaranteed by the following UN human rights treaties:

  • the International Covenant on Economic, Social and Cultural Rights (ICESCR);
  • the International Covenant on Civil and Political Rights (ICCPR);
  • the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); and
  • the Convention on the Rights of Persons with Disabilities (CRPD).

These treaties have been ratified by Canada. Canadian authorities at all levels of government are obligated to implement them by ensuring that laws, policies, and practices comply with the treaties.

However, gaps in the language of these treaties have led to calls for a specific treaty to clarify the rights of older people.

The ICESCR and ICCPR prohibit discrimination on the basis of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” These treaties do not specify age as a prohibited ground of discrimination, although “other status” has been construed by some as including age.

The CEDAW is silent about the rights of older women, except to assure women the right to “old age” social security. The CRPD has no operative language protecting the rights of older persons, although its preamble mentions age in its expression of concern about “the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status…” (also referred to as intersectional discrimination).

Canada is perceived to have a “robust legal framework” for protection of the rights of older persons, but there are gaps.

Canada’s Charter of Rights and Freedoms, Section 15, protects civil and political rights, prohibits discrimination based on age or disability, as do the Canadian Human Rights Act and provincial human rights codes. However, the Charter does not specifically protect economic and social rights set out in the ICESCR, such as rights to adequate housing, health care, or standard of living.

In Canada, Charter arguments about economic and social rights are squeezed into case law interpreting the right to life, liberty, and security of the person (Section 7) or equality rights (Section 15). Canadian human rights researcher Bruce Porter has long advocated that Canadian governments better integrate economic and social rights into law and policy.

The Canadian Human Rights Commission addresses issues of discrimination related to older persons. Three provinces have official advocates for older persons, including British Colombia, Newfoundland and Labrador, and New Brunswick.

Four decades of international advocacy for a rights-based approach: A brief chronology

For decades, advocates in many countries have been seeking a UN treaty to spell out the obligations of States to respect, protect, and fulfil the human rights of older persons.

The 1982 World Assembly on Ageing resulted in the first international instrument, the Vienna International Plan of Action on Ageing. Twenty years later, the 2002 World Assembly saw the adoption by 160 countries, including Canada, of the Madrid International Plan of Action on Ageing and the Political Declaration. That year, the World Health Organization (WHO) developed an Active Aging Policy Framework as a contribution to the Madrid assembly.

The 2002 WHO framework called for a shift from a needs-based approach that views older people as “passive targets” to a rights-based approach that “recognizes the rights of people to equality of opportunity and treatment in all aspects of life as they grow older,” including “participation in the political process and other aspects of community life.” The WHO framework set out three pillars in its calls for action:

  • Health, including access to health care and appropriate housing and social support;
  • Participation, including education as well as income generating and voluntary activities; and
  • Security, including social, financial and physical security.

In 2010, the UN General Assembly created an Open-Ended Working Group on Aging (OEWGA) with a mandate to consider ways to strengthen the protection of rights of older persons including consideration of the “feasibility of further instruments and measures.”

In 2013, the UN Human Rights Council created the mandate of the Independent Expert on the Rights of Older Persons. The Independent Expert is among those calling for a binding treaty.

In 2015, world leaders adopted the UN Sustainable Development Goals 2015-2030 (SDGs), which insist that States “leave no one behind.” The SDGs have a particular focus on the rights of vulnerable persons, including older persons.

Meanwhile, regional human rights bodies have acted. In 2016, the African Union (AU) adopted the binding Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons, now ratified by six AU members. In 2017, the Organization of American States (OAS) adopted the Inter-American Convention on Protecting the Human Rights of Older Persons, now ratified by nine OAS members. Canada is a member of the OAS but has not ratified the Convention.

In 2020 the WHO announced a 2021-2030 Decade of Healthy Aging, which is aligned with the SDGs and sets out to combat ageism, encourage healthy environments for older persons, assure access to good health care and good quality long term care when required.

In April 2022, at the 12th annual session of the UN OEWGA, several UN member States and most civil society and national human rights institutions stressed the need for a binding treaty to remedy the fragmented and inconsistent international coverage of human rights for older persons.

In September 2022, the annual report of the UN Independent Expert on human rights of older persons, Claudia Mahler, to the UN Human Rights Council focussed on human rights violations in contexts where older persons are deprived of their liberty, not only in prisons but in care homes. Mahler noted that in some countries, “older people are more likely to be de facto deprived of liberty in care facilities than in prisons.” She noted that deprivation of residents’ liberty in care homes during the COVID-19 pandemic included abuse of psychotropic drugs to restrain residents, singling out the United Kingdom and Canada.

Calls for Canada to take decades of unimplemented recommendations off the shelf

Here in Canada there have been calls for national or provincial inquiries into the treatment of older people during the pandemic, but systemic neglect of older persons in Canada has been well-documented for decades. Globe and Mail health reporter André Picard points out that there have been at least 150 task forces, inquiries, parliamentary hearings and reports” since the advent of Canada’s health care system in the 1950s and 1960s. Their recommendations remain largely unimplemented. “We don’t need any more sprawling judicial inquiries that produce weighty tomes to be shelved or forgotten,” says Picard. Canada needs to take action in key areas.

Chronic underfunding and underemphasis on supportive care at home

A November 2020 report from Queen’s University, Aging Well, noted that Canada spends less on care and services for older persons than most other developed countries. The report identifies four interrelated needs of older persons related to housing, health and personal care, socialization, and recreation. Most older persons have a “strong preference” to stay in their communities “with familiar neighbours, surroundings and amenities… as long as they possibly can, receiving the care and support services they need at home.”

In addition to overall under-funding, the main obstacle to fulfilment of the rights of older persons in Canada is over-emphasis on housing older persons in institutions, and under-emphasis on supportive at-home living arrangements preferred by most older persons. Canadian research and experience in Europe, notably Denmark, shows that supportive home and community living arrangements also cost less than institutionalization. Lack of affordable housing and supports for older persons to remain at home leads to the coercion of older persons to move to institutions – often with long waiting lists for preferred institutions.

Negative impact of recent legislation: MAiD and Ontario’s More Beds, Better Care Act

There are fears that some recent legislation is having negative impacts on older persons in the absence of adequate economic and social supports.

Ontario’s More Beds, Better Care Act, 2022 was rushed through the legislature in under two weeks in August 2022 with no committee consideration. Critics fear that the Act may result in older persons being pushed into “consenting” to hasty transfers from hospitals to care homes that may be hundreds of miles away from their families and communities. Patricia Hughes, founding Executive Director of the Law Commission of Ontario (2007-2015), commented in August 2022 that the Act will allow older persons to be “potentially sacrificed in efforts to rescue the Ontario healthcare system.”

Amendments to Canada’s Medical Assistance in Dying (MAiD) legislation have also been criticized as potentially resulting in violations of older persons’ fundamental right to life due to lack of fulfilment of their economic and social rights. In 2017, the UN Committee on the Rights of Persons with Disabilities raised concern about lack of protocols to ensure alternatives to MAiD such as “appropriate palliative care, disability support, home care and other social measures that support human flourishing.”

In early 2021, disability activists and human rights experts, including Canadian Senator Marilou McPhedran and several UN independent experts, expressed grave concern about the discriminatory potential of legislation extending MAiD to non-terminal situations of disability or mental health. The amendments may push people into opting for death when they are denied alternatives such as adequate financial assistance, housing, health care, pharmaceutical, or other supports to alleviate suffering and improve their quality of life. Marie-Claude Landry, Chief Commissioner of the Canadian Human Rights Commission also shares the UN experts’ concerns, saying that MAiD “cannot be a default for Canada’s failure to fulfill its human rights obligations.”

There are continuing reports about lack of adequate safeguards amid anecdotes about people being pressured to accept MAiD by health care professionals or family members. Stories continue to emerge about people with disabilities, including older persons, experiencing coercion to have their lives ended through MAiD when their problems are attributable to lack of availability of resources to address poverty or to ensure affordable housing and social support.

Canada’s misplaced priorities result in severe violations of older persons’ fundamental rights

It is difficult to deny that Canada’s misplaced priorities have resulted in violation of fundamental human rights of older persons to adequate standards of living, housing, and health care. The pandemic has also drawn attention to violations of the rights of older persons to be free from unlawful deprivation of their liberty, ill-treatment, violence, and untimely deaths.

Older persons face chronic discrimination, particularly older women, Indigenous people, LGBTQI persons, and members of other minority or marginalized communities who already experience disproportionate levels of poverty, inadequate housing, ill-health, neglect, gender-based discrimination, violence, and imprisonment. These issues have been well-documented by Canadian civil society organizations and academics, and were summarized in André Picard’s 2021 book, Neglected No More.

It may be time to call for a country visit to Canada by the UN Independent Expert on older persons to jolt Canadian governments into concentrated action on several key priorities.

The root cause of neglect of older persons: Systemic age discrimination

For years, ominous headlines have predicted a “silver tsunami” of older persons – a grey tidal wave overwhelming the health care system as housing and health care needs outstrip people’s opportunities to live with adequate support in their homes and communities. Older persons have been called hospital “bed blockers.”

The implication is that there are “too many older people,” yet the real source of the problems is poor planning, underfunding, and misplaced priorities over decades. Entrenched age discrimination contributes to societal toleration of this neglect. Stereotyped notions about older people are disguised by golden and silvery sentiment that is difficult to expose and uproot.

Even though capable older persons are the norm, they are stereotyped as anomalies. Capable older persons are often described as “looking good for their age,” “active,” or surprisingly “with it.” In fact, the majority of older people are productive, astute, and experienced contributors to their communities and workplaces. This includes older persons with disabilities.

Despite evidence to the contrary, older persons are stereotyped as vulnerable, frail, prone to dementia, and in need of charitable care. Older persons may be infantilized and denied participation in decisions that affect them. The habit of excluding older persons from policy making and family decisions is part of a pattern of human rights abuses ranging from lack of informed consent to denial of freedom of expression and information; inadequate housing, nutrition, or health care; ill-treatment including violence; and even deprivation of liberty, security and life.

No one left behind? The glacial pace of progress

The pace of progress to ensure the rights of older persons in Canada and around the world has been glacial. Decades of incremental, piecemeal approaches have not been enough to remedy the pattern of discrimination against older persons.

Canada’s governments need to shift to a rights-based approach that ensures full inclusion of older persons in the development of laws, policies, practices, and funding priorities. A radical change is needed from Canada’s current approach in which “supports and services for elders skew toward institutional homes, with 80% of public spending allocated to institutional care, while only 20% is directed to home and community care.”

Urgent measures are required to address the roots of discrimination, including an international treaty that will set clear norms, standards, and expectations for concrete action. Canada does not need to limit itself to being “open to discussion.” Canada could lead the way to the drafting of a treaty.

For decades, civil society organizations, including Canada’s HelpAge, and the International Longevity Centre Canada (ILC) have advocated for a treaty. So far there is no global consensus among States to start drafting a treaty. At ILC’s side-event at the OEWGA’s 12th session in September 2022, Canada’s UN Ambassador Bob Rae said the Canadian government is open to discussion as to “what such a document would look like,” and how to build support from other States for a treaty.

There can be no further delays. Older persons now constitute nearly one in five people in Canada. Worldwide, the number is just over one in ten. The WHO expects that by 2030, one in six people will be over 60. Statistics Canada projects that one in four in Canada will be over 65. By 2046, the number of people in Canada over 85 could triple.

This article first appeared on 21 November 2022 in Slaw: Canada’s online legal magazine. Note that the ICCPR has been ratified by the United States (US), which has signed but not ratified the ICESCR, the CEDAW and the CRPD. US authorities are obligated to implement the provisions of the ICCPR. While the ICCESCR, the CEDAW and the CRPD are not binding on the US, the Vienna Convention on the Law of Treaties obligates the US “to refrain from acts which would defeat the object and purpose” of the treaty.

Posted in: Civil Liberties, Elder Law, Government Resources, Healthcare, Legal Research