Blog post by the Garden Court Chambers Court of Protection Team.
We mark the date by welcoming moves towards a UN Convention on the Rights of Older People and highlighting the day-to-day work that goes on in our courts to realize people’s human rights.
Article 5 of the European Convention on Human Rights - in the form of the Deprivation of Liberty Safeguards (DOLS) and s 21A Mental Capacity Act 2005 (s 21A )- provides vital protections for individuals who lack mental capacity and whose care arrangements, in care homes or other care settings, mean they are deprived of their liberty. These legal protections provide scrutiny of whether requiring a person to remain in a care setting against their wishes is truly justifiable as in their best interests. It is not that our systems and decision-makers deciding how people should be cared for are not benign in their intentions but they are fallible: a person lacking mental capacity, whether because of dementia or other condition, who cannot speak up for themselves, and who may literally have no friend nor relative to speak up for them, can fail to have their voice heard and become “lost in the system”; breakdowns in communication or a lack of information and effective support for the individual’s family or other factors can mean that a cared-for person ends up avoidably and unjustifiably deprived of their liberty in a care setting against their wishes.
We are regularly involved in cases in the Court of Protection where this human rights-based law is at work to secure people’s right to respect for their liberty and to their real practical benefit. Examples of s 21A outcomes are: an older person who was wrongly assessed as lacking mental capacity due to degenerative illness is accurately re-assessed as having capacity and able make their own decision about where to live; an older person lacking mental capacity due to dementia is able to return to live in the family home, having been told there was no suitable home care package to support them there (the court rules that the only affordable home care package is good enough: the physical risk is an acceptable price for liberty in the circumstances of the case); recognition of the right of an incapacitous older person to be supported and facilitated to have their wishes realized to leave the care home to return to their home country. The mechanisms referred to are not without their flaws - but that is a discussion for a different article.
Work towards an international legal instrument to protect the rights and dignity of older people not addressed sufficiently in existing UN mechanisms has been underway since 2011.[1] The UN Secretary-General’s recent policy brief on the impact of Covid-19 on older people setting out key priorities for action is a significant pronouncement, supported by 146 member states[2]. It includes as a key priority for action to address age discrimination faced by older people in accessing healthcare; it highlights the digital divide worldwide[3]; that older persons have long been subject to inadequate protection of their human rights and overlooked in national policies and programmes; and that there is now an opportunity to set the stage for a more inclusive, equitable and age-friendly society anchored in human rights. We agree with these aims. With the world population set to become older (by 2050, 1 in 6 people will be over 65 and there will be a tripling of people over 80[4]), combined with the multiple impacts of climate change, we need human rights now more than ever.
During Covid-19, for reasons that have been all too clear in the last few months, a human rights-based framework of checks and access to the courts is more relevant than ever for individuals requiring residential/high levels of care. As regards restrictions on contact with family and other loved ones – one of the most cruel of the ongoing impacts of the pandemic – everything that can be done must now be done to minimize any such ongoing restrictions as a matter of priority.
Garden Court Chambers Court of Protection Team
[1] Through the Open-ended Working Group on Ageing (OEWG), set up by the UN General Assembly. Its work is explained in Age International’s publication: A UN Convention on the rights of older people: time for the UK to lead.
[2] Policy Brief: The Impact of Covid-19 on older persons, May 2020
[3] See also the work being done on “Strengthening Older People’s Rights in Times of Digitalisation – Lessons learned from Covid-19” https://www.un.org/development/desa/ageing/news/2020/09/oewg-event/
[4] Data from World Population Prospects referred to at https://www.un.org/en/sections/issues-depth/ageing/
