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.
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.
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.
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.’ 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 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 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. 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.