Older Persons' Rights to Physical and Mental Health

By Alan S. Gutterman

The right to health has been provided for and/or recognized in most of the core international human rights treaties as well as other international and regional instruments and declarations, and is closely related to and dependent upon the realization of other human rights such as the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, privacy and access to information.  Older persons are entitled to all of the recognized civil, political, economic, social and cultural rights, including the right to health, since such rights are universal and thus belong to all human beings.  Both the United Nations and the World Health Organization ("WHO") have taken noting of the ageing of the population globally and the WHO has observed that while a longer life brings with it opportunities, not only for older people and their families, but also for societies as a whole, realizing those opportunities and harvesting the contributions that older people can make to their families and communities depends heavily on health, and the WHO expressed concern that there was little evidence to suggest that older people today are experiencing their later years in better health than their parents.  This book covers the human rights to health for older persons, various initiatives of the WHO relating to healthy and active aging, ageism and health, rights to health among older women and older people with disabilities, long-term care, palliative care, health-related lessons from the Covid-19 pandemic and necessary improvement to the training and practice of geriatric medicine.

• Language: English
• Publisher: Older Persons' Rights Project
• Release date: Feb 20, 2022
• ISBN: 9798201632953

Alan S. Gutterman

This book was written by Alan S. Gutterman, whose prolific output of practical guidance for legal and financial professionals, entrepreneurs and investors has made him one of the best-selling individual authors in the global legal publishing marketplace.  His cornerstone work, Business Transactions Solution, is an online-only product available and featured on Thomson Reuters’ Westlaw, the world’s largest legal content platform, which includes almost 200 book-length modules covering the entire lifecycle of a business.  Alan has also authored or edited over 80 books on sustainable entrepreneurship, leadership and management, business transactions, international business and technology management for a number of publishers including Thomson Reuters, Practical Law, Kluwer, Oxford, Quorum, ABA Press, Aspen, Euromoney, Business Expert Press, Harvard Business Publishing and BNA.  Alan has extensive experience as a partner and senior counsel with internationally recognized law firms counseling small and large business enterprises in the areas of general corporate and securities matters, venture capital, mergers and acquisitions, international law and transactions and strategic business alliances, and has also held senior management positions with several technology-based businesses including service as the chief legal officer of a leading international distributor of IT products headquartered in Silicon Valley and as the chief operating officer of an emerging broadband media company.  He has been an adjunct faculty member at several colleges and universities, including Berkeley Law, Santa Clara University and the University of San Francisco, teaching classes on corporate finance, venture capital and law and economic development,  He has also launched and oversees projects relating to sustainable entrepreneurship and ageism.  He received his A.B., M.B.A., and J.D. from the University of California at Berkeley, a D.B.A. from Golden Gate University, and a Ph. D. from the University of Cambridge.  For more information about Alan and his activities, please contact him directly at [e-mail], follow him on LinkedIn (https://www.linkedin.com/in/alangutterman/) and visit his website at alangutterman.com.

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Older Persons’ Rights to Physical and Mental Health

The World Health Organization (WHO) warned in 2018 that all countries faced major challenges to ensure that their health and social systems were ready for the significant demographic shifts occurring as people worldwide are living longer and the pace of population ageing is accelerating much faster than it ever has in the past.  The WHO noted that for the first time in history, most people can expect to live into their sixties and beyond and that by 2050 the proportion of the world’s population over 60 years of age will reach 22% (2 billion people, up from 900 million (12% of the world population) in 2015).  As for the pace of growth of the older population, the WHO reported that while it took almost 150 years for the proportion of the population over 60 years of age in France to increase from 10% to 20%, the same shifts in countries such as Brazil, China and India were occurring in just a little over 20 years.  While the shift in the distribution of a country’s population toward older ages began in high-income countries, notably Japan, the WHO projected that the greatest changes going forward will be occurring in low- and middle-income countries, which are expected to be the homes for 80% of the world’s older persons by 2050. [1]

The WHO observed that while a longer life brings with it opportunities, not only for older people and their families, but also for societies as a whole, realizing those opportunities and harvesting the contributions that older people can make to their families and communities depends heavily on health, and the WHO expressed concern that there was little evidence to suggest that older people today are experiencing their later years in better health than their parents.[2]  For example, the WHO noted that while rates of severe disability had declined in high-income countries over the 30 years leading up to its 2018 report, there had been no significant change in mild to moderate disability over the same period of time. 

The WHO pointed to other hurdles that must be overcome to respond to population ageing and promote healthy ageing including developing a comprehensive public health response that takes into account the wide range of experiences and needs among the large population of older persons[3]; recognizing and mitigating physical, economic and social factors (e.g., sex, ethnicity, socioeconomic status and living environment) that lead to inequalities in health and access to health care among older persons; and addressing outdated and ageist stereotypes (e.g., older people are frail or dependent, and a burden to society) that lead to discrimination and adversely influence public health policies for older persons and the way in which they are treated by health professionals.  According to the WHO, if older people are able to live their lives in good health and in a supportive environment, they generally will be able to engage in the activities that they value in ways that are little different than younger people; however, if society failed to address, and even contributed to, declines in their physical and mental capacity, ageing will continue to have negative implications for individuals and society as a whole.

Studies indicate that the quality of care afforded to older adults with medical conditions is substandard.[4]  Global AgeWatch Insights, a joint project of HelpAge International and AARP published in December 2018, focused on the inequities of health systems worldwide through extensive studies in 12 low- and middle-income countries.[5]  The researchers identified a number of common barriers among the countries that were studied to older people’s right to health and inclusion in health systems and services including discrimination in the form of ageism by health workers, such as their failure to consult older people on their care or their decision to restrict or deny access to interventions on the basis of age; poor physical accessibility of services; lack of institutional outreach to the older-age population in isolated communities; poverty and prohibitive costs; low health literacy and less access to health information; poor knowledge among health care workers on how to respond to health challenges common in older age including a lack of medical and gerontological training in the care of older people; health systems that remained structured to manage acute, episodic illness rather than responding to the longer-term, chronic health conditions that are common among older persons; and the failure of health systems to keep pace with important and sweeping demographic (i.e., declining fertility and mortality accompanied by greater longevity caused by progress in global health and development) and epidemiological (i.e., a shift from communicable diseases to non-communicable diseases including, in the case of older people, cardiovascular disease, diabetes, dementia, depression and other conditions related to cognitive and mental health issues) transitions.[6]

Population aging raises a number of global, national and local challenges and priorities will vary depending on the stage of development of the particular location.  For example, according to the UN Department of Economic and Social Affairs, over 65% of people aged 65 or older live less developed countries, most of which have health care systems that are weak with significant barriers of access for older persons including affordability, physical accessibility and age-based discrimination.[7]  Due to lack of support, many older persons in such countries turn to institutionalized care that is often of poor quality.  Older women in developing countries are especially marginalized, generally lacking education and living alone and in poverty.  Health risks in developing countries have accelerated with migrations from rural to urban areas which have led to densely overcrowded neighborhoods and communities in cities that not only lack adequate healthcare services but also are overwhelmed by other conditions that increase the risk of illness and long-term deterioration of physical and mental health such as shortages of nutritious food and clean water, poor sanitation, low levels of literacy and inadequate social support and protection systems.[8]

The WHO has noted that developing countries are particularly at risk of being overwhelmed in dealing with what it has called the double burden of disease, which refers to the fact that they struggle with controlling infectious diseases, malnutrition and complications from childbirth at the same time that they are confronted with the rapid growth of non-communicable diseases associated with increases in longevity (e.g., heart disease, cancer, mental health disorders and common types of disabilities among older persons due to the wear and tear of aging).[9]  In those countries, scarce resources need to be focused on eradicating communicable conditions and alleviating the poverty that contributes to both chronic communicable and non-communicable diseases; however, attention also needs to shift into new strategies and programs needed to control the burden of non-communicable diseases such as community development, health promotion and disease prevention programs and increasing participation of older persons in society, particularly since evidence indicates that the disabilities associated with aging and the onset of chronic disease can be prevented or delayed by changing behaviors among people as they age to shift toward healthier lifestyles.[10]

Global AgeWatch Insights included several recommendations regarding the changes that needed to be made in order to realize older people’s right to health.  For example, stakeholders must work in partnership with older people to ensure that older people’s voices, knowledge and perspectives inform and guide collaborative action to design and implement integrated health systems that are shaped around the priorities and concerns of older people themselves.  As for governments, they need to respond to demographic and epidemiological transitions by including aging and older people in national health policy, planning and implementation; establish the right to health in legislation at the national level; close the gap in the recognition of dementia, depression and other mental and cognitive health conditions in older age; implement gendered and inclusive-health responses, taking account of the needs of specific groups of older people; recognize and respond to the violence, abuse and neglect experienced by older people; develop models of universal health care that are holistic, person-centered and integrated across health and care and support systems; define services for inclusion in universal health care that are age-specific and responsive to the needs of older people; and support the development of geriatric and gerontological competence among all sectors of the health workforce.[11]  Finally, multilateral agencies, governments and national statistical offices must take a variety of steps to improve the collection, dissemination and use of aging-related statistics and age-disaggregated data in order to enhance understanding of health as people age and identify impediments to the availability, accessibility, acceptability and quality of health services for older persons.[12]

Rights to Health under International Human Rights Law

The right to health has been provided for and/or recognized in most of the core international human rights treaties as well as other international and regional instruments and declarations.[13]  While the right to health is recognized as an independent and fundamental right, it is closely related to and dependent upon the realization of other human rights such as the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, privacy and access to information.[14]  Health is also one of the primary targets in the UN’s Sustainable Development Goals, with SDG 3 calling for ensuring healthy lives and promoting wellbeing for all at all ages.

Article 25 of the UN’s Universal Declaration of Human Rights (UDHR) states that [e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.  The UDHR is not a treaty, and there has been debate as to whether it is a legally binding obligation on the states that comprise the membership of the UN.  However, regardless of its formal legal status, the UDHR served as the first universal statement of an expansive set of fundamental rights and laid the foundation for the international human rights framework that has evolved since December 1948.[15]

The UDHR has been linked to two important UN human rights treaties, the International Covenant on Civil and Political Rights (adopted on December 16, 1966 and entered into force on March 23, 1976) (ICCPR)[16] and the International Covenant on Economic, Social and Cultural Rights (adopted on December 16, 1966 and entered into force on January 3, 1976) (ICESCR),[17] to form the so-called International Bill of Human Rights.  The ICCPR includes and expands upon almost all of the civil and political rights that had been included in the UDHR (other than rights relating to asylum, which are addressed in the Convention Relating to the Status of Refugees).  The ICESCR is also based on principles originally outlined in the UDHR, providing additional details in many instances, and affirms the right of all peoples to self-determination and their freedom to pursue and enjoy their economic, social, and cultural rights without discrimination of any kind.  States are responsible for taking the steps necessary to the maximum of their available resources to achieve progressive, and ultimately full, realization of the rights enumerated in the ICESCR, including particularly the adoption of legislative measures.[18]

Article 12(1) of the ICESCR recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health[19] and explains that a right to health includes not only access to health services but also a wide range of socioeconomic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health.[20]  Article 12 calls on States to take the necessary steps to achieve the full realization of these rights including (a) the provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) the improvement of all aspects of environmental and industrial hygiene; (c) the prevention, treatment and control of epidemic, endemic, occupational and other diseases; [and] (d) the creation of conditions which would assure to all medical service and medical attention in the event of sickness.[21]

According to the UN Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment 14, [h]ealth is a fundamental human right indispensable for the exercise of other human rights including the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of association, assembly and movement.[22]  The CESCR explained that the right to health should not be understood as a right to be healthy, but rather as a set of freedoms (e.g., the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation) and entitlements (e.g., the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health).[23]  The CESCR noted that that [t]he realization of the right to health may be pursued through numerous, complementary approaches, such as the formulation of health policies, or the implementation of health programs developed by the World Health Organization (WHO), or the adoption of specific legal instruments".[24]

The CESCR called for elimination of health-based discrimination, such as denial of access to health care and underlying determinants of health, as well as to the means and entitlement for their procurement, on the grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status.[25]  CESCR has called on States to emphasize equality of access to health care and health services, paying particular attention to those who do not have sufficient means by providing them with necessary health insurance and health-care facilities and ensuring that investments do not favor expensive curative health services that are only accessible to a small, privileged faction of the population while underfunding primary and preventive health care that would benefit a larger part of the population across the full range of socioeconomic status.[26]

The CESCR argued that the right to health in all its forms and at all levels contains the following interrelated and essential elements, the precise application of which will depend on the conditions prevailing in a particular State party[27]:

Availability: Functioning public health and health-care facilities, goods and services, as well as programs, have to be available in sufficient quantity within the State party.  In general, this element refers to the availability of the underlying determinants of health, such as safe and potable drinking water and adequate sanitation facilities, hospitals, clinics and other health-related buildings, trained medical and professional personnel receiving domestically competitive salaries and essential drugs.

Accessibility: Health facilities, goods and services have to be accessible to everyone without discrimination, within the jurisdiction of the State party. Accessibility has four overlapping dimensions including non-discrimination, physical accessibility[28], economic accessibility (affordability)[29] and information accessibility[30].

Acceptability: All health facilities, goods and services must be respectful of medical ethics and culturally appropriate (i.e., respectful of the culture of individuals, minorities, peoples and communities, sensitive to gender and life-cycle requirements, as well as being designed to respect confidentiality and improve the health status of those concerned).

Quality: As well as being culturally acceptable, health facilities, goods and services must also be scientifically and medically appropriate and of good quality, which requires, among other things, skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment, safe and potable water and adequate sanitation.

The CESCR also stressed the importance of an integrated approach, combining elements of preventive, curative and rehabilitative health treatment ... [including] ... periodical check-ups for both sexes; physical as well as psychological rehabilitative measures aimed at maintaining the functionality and autonomy of older persons; and attention and care for chronically and terminally ill persons, sparing them avoidable pain and enabling them to die with dignity.[31]

Human Rights to Health for Older Persons

The UN has identified aging as being among the most important global issues, noting that virtually every country in the world is experiencing growth in the number and proportion of older persons in their population and predicting that aging will become one of the most significant social transformations of the 21st Century impacting nearly all sectors of society including labor and financial markets, the demand for goods and services (e.g., housing, transportation and social protection) and family structures and intergenerational ties.[32]  Since 1948 there has been almost 20 declarations, principles, resolutions, plans of action and proclamations issued by the UN and its instrumentalities relating to aging, and it is conceded that, in theory, most of the provisions in UN treaties and other instruments relating to human rights are intended to be universal and thus applicable to older persons as well as all other human beings.[33]  Older persons are entitled to all of the recognized civil, political, economic, social and cultural rights, including the right to health, since such rights are universal and thus