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.

18

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.

19

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.

20

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.

21