WORKING PAPER DRAFT INTER-AMERICAN CONVENTION ON THE HUMAN RIGHTS OF OLDER PERSONS SUMMARY: The text of the draft

Inter-American Convention on the Human Rights of Older Persons, developed by the Working Group on Protection of the Human Rights of Older Persons of the Organization of American States (OAS), contains provisions that contradict the International Convention on the Rights of Persons with Disabilities and the Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities. I. INTRODUCTION

The Organization of American States (OAS), at the fourth plenary session of its XLI General Assembly June 7, 2011, adopted resolution AG/RES. 2654 (XLI-O/11) "Protecting the Human Rights of Older Persons", through which it requested that the Permanent Council establish a Working Group composed of national representatives and experts to prepare a report to analyse the situation of older persons in the region and the effectiveness of binding universal and regional human rights instruments with regard to protection of the rights of older persons.1 The resolution also requested that the Working Group take into account the findings of the report to "prepare a draft inter-American convention for the advancement and protection of the rights of older persons."2 In this context, the Working Group on the Protection of the Human Rights of Older Persons (hereinafter, the Working Group), established on 22 September, 2011, agreed to prepare the "Report on the situation of older persons in the Hemisphere and the effectiveness of binding universal and regional Human Rights instruments with regard to the protection of the Rights of Older Persons"3 and prepared a Draft Inter-American Convention on the Human Rights of Older Persons4 which was submitted to the Permanent Council on 26 April, 2012. Subsequently, through resolution AG/RES. 2726 (XLII-O/12) of 4 June, 2012, the OAS General Assembly requested that the Permanent Council extend the mandate of the Working Group to enable it to conduct, with technical support from the Department of Social Development and Employment, the process of formal negotiation of the draft inter-American convention on the human rights of older persons, and "present it to the General Assembly of the Organization of American States (OAS) for adoption at its forty-third ordinary period of sessions" 5 from 4 to 6 June, 2013 in Antigua, Guatemala. The Working Group has scheduled seven two-day meetings for this new period in accordance with a calendar which ends on 15 and 16 April, 2013.6

Operative paragraph 1. The Permanent Council delegated the implementation of this mandate to its Committee on Juridical and Political Affairs (CAJP). 2 Operative paragraph 2. 3 Doc CAJP/GT/DHPM 14/11 rev. 1 of 5 December, 2011. 4 CAJP/GT/DHPM-30/12 rev. 6 corr. 1, of 17 April, 2012. 5 Operative paragraph 1. 6 CAJP/GT/DHPM-51/12 rev. 2, of 18 October, 2012.

II.

ANALYSIS OF THE DRAFT INTER-AMERICAN CONVENTION ON THE HUMAN RIGHTS OF OLDER PERSONS

The Draft Inter-American Convention on the Human Rights of Older Persons (hereinafter CIDPM)7 contains a number of points that contradict the principles and rights recognised in the International Convention on the Rights of Persons with Disabilities (CRPD), which has been signed and ratified by a significant number of OAS member states.8 The contradictions are in relation to the rights to equal recognition of legal capacity, to personal freedom, and to live independently and be included in the community, which are based on the principles of individual autonomy, the independence of persons, non-discrimination, and full and effective participation and inclusion in the society. This paper focuses on the most inconsistent aspects of the CIDPM in relation to the CRPD. However, there are other sections that may also be improved from a human rights perspective (such as the definition of "discrimination" and "affirmative measures", the concept of "vulnerability", the co-responsibility of State and family, or protection against exploitation, violence and abuse) and that should be analysed further. Equal recognition of legal capacity The CIDPM allows restrictions on the exercise of legal capacity by older persons. Article 33, entitled "Judicial guarantees in processes to determine the legal capacity of older persons", states:
Older persons have the right to recognition as persons before the law. Older persons have the same legal capacity as others in all aspects of life. If necessary, appropriate means should be made available to enable older persons to exercise their legally recognized rights. Any and all restrictions on legal capacity must be properly substantiated, limited in time, subject to periodic review, and applied solely to specific decisions in which a lack of capacity and the need for proxy consent has been determined. An older person whose legal capacity is at issue shall be entitled to representation by legal counsel and to be provided with a translator, if necessary. If they lack such representation, they shall be provided with counsel without charge if they cannot afford such services. The counsel may not represent a long-stay facility or its staff in the same proceedings, nor represent a relative of the older person whose capacity is at issue. Decisions on legal capacity and the need for legal representation shall be reviewed at reasonable intervals via procedures established by law. An older person whose legal capacity is at issue, their counsel, and any other person with a direct, personal, and legitimate interest shall be entitled to appeal to a competent tribunal against the decisions of a competent authority or review body, if any, concerning their legal capacity and the need for representation.9
7 8

Version of 8 March, 2013. Doc CAJP/GT/DHPM-37/12 add. 7 rev. 1. See: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en

Article 33 of the CIDPM provides, first, the possibility of restricting the legal capacity of an older person10 in cases in which "lack of capacity" to make certain decisions has been determined. Thus, a correlation is established between the "mental capacity" (fitness) of the person and their "legal capacity" (understood as the capacity to act, that is, the ability to perform legal acts directly and appropriately) in line with what is known as the functional model or method (functional test).11 Furthermore, due to its configuration, the restriction will specifically affect older people with intellectual or mental disabilities. Second, the proposal provides for the possibility of "proxy consent" in cases in which the "incapacity" or "inability" of the person to make decisions is determined. Thus, for decisionmaking Article 33 legitimises substitution of the person by a third party or legal representative. Furthermore, the text provides a number of safeguards for surrogate decision making (temporality, periodic review, legal counsel, conflict of interest). Moreover, Article 10 of the CIDPM, on the right to give prior and informed consent, 12 states that States Parties shall establish a procedure through which older persons, through legally binding documents, can express their will and preferences with regard to health care interventions at the end of their lives. As minimum content for these "advance directives" on health, however, the attorney or legal representative -who "shall guarantee the legal content of the information"- may request an "evaluation of the older persons ability to make decisions." There is an apparent contradiction between Articles 33 and 10 of the CIDPM and Article 12 of the CRPD. According to the latter, persons with disabilities (including older persons) enjoy legal capacity on an equal basis with others in all aspects of life, and States Parties are required to take appropriate measures to provide access for people with disabilities to the support they may require to exercise their legal capacity. As highlighted by the United Nations Committee on the Rights of Persons with Disabilities, 13 in all final observations on the reports submitted by States parties issued so far,14 Article 12 of the CRPD presents a "a scheme of supported decisionmaking for people with disabilities."15 This means abandoning surrogate decision-making schemes (such as guardianship or protection), which fully or partially deprive people of their legal capacity. In this regard, the Committee has expressed concern over the existence of surrogate decisionmaking models that allow the suspension of the civil rights of persons with disabilities.
9

This article was included in the initial draft, based on the document sent by ECLAC "Guidelines for a Convention on the Rights of Older Persons / Adults" (Doc. CAJP/GT/DHPM-23/12, 24 January, 2012). 10 An "older person" is considered to be a person of 60 or more years of age (Article 2 of the CIDPM). 11 Persons are considered to be incapable if they are unable to perform a specific function because of their mental capacity. See: Bach, Michael. "The right to legal capacity under the UN Convention on the Rights of Persons with Disabilities: key concepts and directions for law reform." In: Palacios and Francisco Bariffi Agustina (ed.). Legal capacity, disability and human rights. Buenos Aires: EDIAR, 2012. 12 Title approved on 28 January, 2013. 13 Body that monitors implementation of the CRPD. 14 Tunisia, Spain, Peru, Argentina, China and Hungary. See: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Sessions.aspx 15 Along the same line the Office of the United Nations High Commissioner for Human Rights has issued comments. See: Thematic study by the Office of the United Nations High Commissioner for Human Rights to improve knowledge and understanding of the Convention. Doc A/HRC/10/48.

Moreover, in the specific cases of Peru and Argentina, both members of the OAS, the Committee has recommended the "immediate review of all existing legislation which, based on surrogate decision-making, deprives a person with disabilities of his/her legal capacity" 16 and "the adoption of measures to replace surrogate decision-making by supported or assisted decision-making for persons with disabilities, respecting their autonomy, will and preferences"17. Furthermore, the Committee for the Elimination of All Forms of Discrimination against Persons with Disabilities of the OAS (CEDDIS)18 in a recent general observation,19 pointed out that Article 12 of the CRPD "is of central importance to the structure of the treaty because of its instrumental value for the enjoyment of human rights by persons with disabilities and its significance in the process of transforming domestic law (formal and substantive, civil and criminal)" and that most of the OAS member countries have signed the Convention. Based on this, the CEDDIS has stated that the criteria established in Article I.2, subparagraph b) of the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities of the OAS (CIADDIS), insofar as it states that "if, under a state's internal law, a person can be declared legally incompetent, when necessary and appropriate for his or her well-being, such declaration does not constitute discrimination", represents a serious contradiction with the provisions of the CRPD and, therefore, "must be reinterpreted in the context of the validity of that document." In that regard, the CEDDIS has requested the Secretary General of the OAS, through the relevant legal bodies, to review Article I.2 subsection b) of CIADDIS in order to harmonise it with Article 12 of the CRPD, "recommending the most convenient course of action, either practical inapplicability or repeal." Article 33 of the CIDPM would also contradict the interpretative criterion of CEEDIS. Article 12 of the CRPD is very important for older persons with disabilities since it recognises their right to equal recognition of their legal capacity to make decisions in all areas of life (e.g., asset management, health care or attention to personal matters) and the obligation of the States to provide support for the exercise of this right. In this regard, the CIDPM proposal should take this as a starting point and extend its reach to all older persons. Right to personal freedom The CIDPM also opens the possibility of establishing restrictions on the personal freedom of older persons on account of their age. The article without number on "the right of older persons to safety and to be treated with dignity in long-stay residential facilities" indicates the obligation of the states to "establish mechanisms to ensure an internment review and full exercise of the rights of older persons during their institutionalisation, including the right to leave." 20
16

Final Observations of the Committee on the Rights of Persons with Disabilities on the initial report of Argentina. Doc CRPD/C/ARG/CO/1, 27 September, 2012. 17 Final observations of the Committee on the Rights of Persons with Disabilities on the initial report of Peru. Doc CRPD/C/PER/CO/1, 16 May, 2012. 18 Body that monitors the implementation of the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities of the OAS. 19 General Observation on the need to interpret Article I.2.b, in fine, of the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities, within the framework of Article 12 of the United Nations Convention on the Rights of Persons with Disabilities. Adopted by Resolution CEDDIS/RES.1 (IE/11) 4 May, 2011. 20 Text adopted on 4 December, 2012.

Additionally, Article 34 of the CIDPM, on "judicial guarantees of older persons who are institutionalised," states:
An older person has the right to appoint legal counsel to represent them in all judicial or administrative proceedings related to their institutionalized status. If an older person does not obtain such services, counsel shall be provided to them without charge if they cannot afford one. An older person and their counsel may, in any proceeding, request and present an independent opinion on their physical and mental health, along with any other reports and oral, written, or other evidence that is pertinent and admissible. Reports by professionals or interdisciplinary teams may also be submitted, as may reports prepared by competent bodies.

[...] Article 34 also states that an older person shall be entitled to appropriate proceedings to review: a) decisions on their institutionalisation, b) their housing in a long-stay facility, and c) their housing conditions. As can be seen, although the CIPDM does not expressly state that older persons may be deprived of their freedom on account of their age, it establishes a framework of guarantees for questioning and reviewing placements in temporary or permanent, public or private residences. In that regard, a contrary interpretation of the above articles leads to the conclusion that the CIPDM accepts that internments do occur without the free and informed consent of the person. Contrary to the provisions of the CIPDM, Article 14 of the CRPD prohibits unlawful or arbitrary deprivation of liberty for persons with disabilities, including people with psychosocial disabilities, and asserts that the existence of a disability cannot justify deprivation of liberty. In this regard, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment and the Special Rapporteur on the right to health have emphasised that the CRPD reaffirms that the existence of a disability is no legal justification for deprivation of liberty, including denial of informed consent.21 Furthermore, the Office of the High Commissioner for Human Rights has declared that Article 14 of the CRPD prohibits detention and involuntary treatment on grounds of mental disability (or mental disorder).22 Along the same lines, the laws authorising the institutionalisation of persons with disabilities on account of their disability, without their free and informed consent, must be abolished.23 According to the High Commissioner, this should include the repeal of provisions that authorise the institutionalisation of persons with disabilities for their care and treatment without their free and informed consent, and provisions that

21

See: UNITED NATIONS. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment. Doc A/63/175 28 July, 2008; UNITED NATIONS. Report of the Special Rapporteur on the right of all persons to the enjoyment of the highest attainable standard of physical and mental health. Doc A/64/272, 10 August, 2009. 22 UNITED NATIONS. Thematic study by the Office of the United Nations High Commissioner for Human Rights to improve knowledge and understanding of the Convention on the Rights of Persons with Disabilities. Doc A/HRC/10/48, 26 January, 2009, paragraph 48. 23 Ibid. paragraph 49.

authorise the preventive detention of persons with disabilities for reasons such as the probability that they may represent a danger to themselves or others.24 The Committee on the Rights of Persons with Disabilities has followed these criteria in its final observations on Tunisia, Spain, Peru, Hungary and China. The Committee has recommended the repeal and revision of the laws that allow deprivation of liberty on the grounds of disability, including psychosocial or intellectual disabilities, in hospitals, specialised institutions, residential facilities, and health services.25 The text proposed by the CIPDM, by accepting the possibility of admitting or keeping an older person in an institution, is inconsistent with the CRPD on this point. Right to live independently and be included in the community As already indicated, the text of the CIPDM contains a number of references to the "institutionalisation" of older adults. Article 2 on definitions states that an "institutionalised older person" is a person who lives temporarily or permanently in a public or private establishment responsible for providing comprehensive social and health care services. It also states that a "long-stay facility" is a public or private establishment that provides long-term comprehensive social health care services for older persons with moderate or severe dependency, who cannot receive care in their own homes. Furthermore, the article without number on the "right of older persons to safety and to be treated with dignity in long-stay residential facilities" establishes the obligation of States to establish an appropriate regulatory framework for their operations that allows the situation of older persons to be evaluated and supervised, and ensures their dignity and full observance of their human rights (subparagraph a), including mechanisms to ensure that internments are reviewed and that older persons fully exercise their rights during their institutionalisation (subparagraph c). Notably, although Article 10 of the CIDPM makes it an obligation to establish measures designed to ensure that older persons, before being "institutionalised", be required to give their prior and informed consent to their admission to an institution and its services, Article 34 of the CIDPM (quoted in the previous section) specifies a series of legal guarantees to question decisions on institutionalisation, permanence and housing conditions, nullifying what is stated in Article 10. Thus, the CIDPM accepts the "institutionalisation" of older persons, even when involuntary. The CRPD contains no reference to the "institutionalisation" of persons with disabilities.26 On the contrary, Article 19 explicitly recognises the right to live independently and be included in the community with choices equal to others. This right includes: i) the opportunity to choose a place of residence and where and with whom to live, without being obliged to live in a particular living arrangement (subparagraph a), ii) access to a range of in-home, residential and other community
24 25

Ibid. See: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Sessions.aspx 26 The CRPD deliberately does not use the term "institution" to avoid implicitly interpreting acceptance of institutionalisation as an option. Thus, during discussion of the topic it was suggested that no explicit reference be made to the term "institutions" since it is included in the generic term of 'with a certain structure'. Letter of 7 October, 2005, from the Chairman of the Special Committee for all members of the Committee (A/AC.265/2006/1). At: http://www.un.org/esa/socdev/enable/rights/ahcchairletter7oct.htm

support services, including the personal assistance necessary to support living and inclusion in the community and to prevent isolation or segregation from the community (subparagraph b) iii) general community services and facilities (for the whole population) that are accessible and inclusive of people with disabilities (subparagraph c). In conclusion, the right to live independently and be included in the community means the possibility for persons with disabilities to live in their communities as equal citizens, with the support they need to participate in everyday life. Therefore, recognition requires that government policies change from preference for institutional care to home or residential care and other community support services.27 Article 19 of the CRPD is particularly important in the case of older persons with disabilities, because many of them are living in conditions of abandonment and segregation in large institutions. As noted by the Special Rapporteur on the right to health, independent living and being included in the community permit improvement in the protection of dignity, autonomy, equality and participation in the society of persons.28 The type of relationships with family, friends and the community in general that people develop if given the necessary support to live in their own homes cannot be achieved in institutions, which are often located in isolated areas away from their original residences. Moreover, community life can prevent institutionalisation, which often exposes people to human rights violations and harms their health as a result of the mental burden of segregation and isolation. 29 Finally, integration into the community is also an important strategy to end stigmatisation and discrimination. 30 Therefore, no person, with or without disability, should have to live in an institution or residential centre. In that regard, although it may be necessary to develop specific protection measures for older persons living in long-stay institutions,31 recognition of the right of older persons to live independently and be included in the community would advance the establishment of policies and programmes to prevent the abandonment and institutionalisation of older persons on the basis of their age. The CIDPM article on the "right to independence and autonomy" can serve as a basis for that purpose. III. OLDER PERSONS AND DISABILITIES: NEED TO HARMONISE CRITERIA

The intersection between disability and aging is considerable. World Health Organisation statistics in the World Report on Disability 2011 show that the number of people with disabilities is growing, largely because populations are aging. The proportion of people over 60 years of age with disabilities is 38.1%, increasing to 43.4% in low-income countries. 32 Furthermore, much of the representation, stigma and prejudice about older persons and persons with disabilities is shared.

27

UNITED NATIONS. Thematic study by the Office of the United Nations High Commissioner for Human Rights to improve knowledge and understanding of the Convention on the Rights of Persons with Disabilities. Paragraph 50 28 UNITED NATIONS. Report of the Special Rapporteur on the right of all persons to enjoyment of the highest attainable standard of physical and mental health. Document E/CN.4/2005/51, 14 February, 2005. Paragraph 85. 29 Ibid. 30 Ibid. 31 On this point, the experience of Article 16 of the CRPD is illustrative. 32 WHO. World Report on Disability 2011. See: http://www.who.int/disabilities/world_report/2011/es/index.html

The proposed Preamble to the CIDPM expressly mentions CIADDIS and the CRPD as background.33 As indicated, many of the rights recognised in the CRPD are particularly relevant for older persons, including the right to equal recognition before the law (Article 12), the right to liberty of the person (Article 14), and the right to live independently and be included in the community (Article 19). 34 The impact of the CRPD is not limited to the field of disability. Its values and principles make it necessary to rethink the concepts of human diversity, autonomy, equality and inclusion. Moreover, from a rights perspective, the CRPD resolves the debate on the interdependence and indivisibility of human rights and on the need to explore the "intersection" of the many forms of discrimination which exist between human groups. As repeated throughout the drafting process of the CRPD, with approval the aim was not to create "new rights", but to adapt existing international standards to the specific context of disability. In view of the above, the Working Group should resolve the contradictions between the text of the CIDPM and the CRPD. It should also ensure that the fundamental rights recognised in the CRPD are extended to all older persons, taking into account the experiences of older persons in the region, but without incorporating restrictions that would represent a reversal in the standards of international human rights law. Given that Article 1 of the proposed CIDPM states that the provisions of the treaty shall not be construed as limiting broader or additional rights or benefits recognised in international law, the current text could lead to a situation in which older persons with disabilities enjoy broader protection of their human rights than the rest of the sector. In practice, however, it is more likely that the CIDPM will generate confusion among States and officials, delaying the implementation of the CRPD among older persons with disabilities, a sector that is particularly at risk of discrimination and exclusion. IV. RECOMMENDATIONS 1. Redraft Article 33 of the proposal taking into account the standards set forth in Article 12 of the CRPD. Paragraphs 2, 3, 4 and 5 of the current proposal should be eliminated. 2. Eliminate reference to the "evaluation of the older persons ability in Article 10 of the proposal. 3. Redraft the article on the "right to independence and autonomy", taking into account the standards set forth in Article 19 of the CRPD. 4. Redraft the article on the "right of older persons to safety and to be treated with dignity in long-stay residential facilities", so that the right of older persons to give informed consent be respected with no exceptions. 5. Eliminate Article 34 of the proposal or redraft it in line with Article 13 of the CRPD. 6. Avoid the terms "institutionalisation" and "long-stay residence" which legitimise the existence of segregated institutions.

33 34

Subparagraphs d) and e) of the Preamble. Notably, the Inter-American Court of Human Rights in the Case of Furlan and family vs Argentina has emphasised the need to interpret the rights recognised in the American Convention on Human Rights and the obligations that follow from this in light of the "special protection measures" derived from the standards of the CIADDIS and the CRPD. IACHR. Case of Furlan and family vs Argentina. Sentence of 31 August, 2012. fj. 139.

Alberto Vasquez Encalada President of Society and Disability - Sodis avasqueze@gmail.com / sodisperu@gmail.com http://sodisperu.org/ http://www.facebook.com/sodisperu https://twitter.com/sodisperu