The Council of Europe has very recently (19 February) adopted the first European instrument on the human rights of older persons, in the form of Recommendation CM/Rec(2014)2. The recommendation stresses, inter alia, the importance of autonomy and participation, noting that:
“9. Older persons have the right to respect for their inherent dignity. They are entitled to lead their lives independently, in a self-determined and autonomous manner. This encompasses, inter alia, the taking of independent decisions with regard to all issues which concern them, including those regarding their property, income, finances, place of residence, health, medical treatment or care, as well as funeral arrangements. Any limitations should be proportionate to the specific situation, and provided with appropriate and effective safeguards to prevent abuse and discrimination.”
It also stresses the importance of securing older persons against violence and abuse:
“16. Member States should protect older persons from violence, abuse and intentional or unintentional neglect. Such protection should be granted irrespective of whether this occurs at home, within an institution or elsewhere.
17. Member States should provide for appropriate awareness-raising and other measures to protect older persons from financial abuse, including deception or fraud.
18. Member States should implement sufficient measures aimed at raising awareness among medical staff, care workers, informal carers or other persons who provide services to older persons to detect violence or abuse in all settings, to advise them on which measures to take if they suspect that abuse has taken place and in particular to encourage them to report abuses to competent authorities. Member States should take measures to protect persons reporting abuses from any form of retaliation.
19. Member States shall carry out an effective investigation into credible claims that violence or abuse against an older person has occurred, or when the authorities have reasonable grounds to suspect that such ill-treatment has occurred.
20. Older persons who have suffered from abuse should receive appropriate help and support. Should member States fail to meet their positive obligation to protect them, older persons are entitled to an effective remedy before a national authority and, where appropriate, to receive adequate redress for the harm suffered in reasonable time.”
With specific reference to consent to medical care, the Recommendation notes:
“36. Older persons should receive medical care only upon their free and informed consent, and may freely withdraw consent at any time.
37. In case an older person is unable, in the particular circumstances, to give consent, the wishes expressed by that person relating to a medical intervention, including life-prolonging measures, should, in accordance with national law, be taken into account.
38. When an older person does not have, according to national law, the capacity to consent to an intervention, in particular because of a mental disability or a disease, the intervention may only be carried out with the authorisation of his or her representative, an authority or a person or body provided for by law. The older person concerned should, as far as possible, take part in the authorisation procedure. Appropriate and effective safeguards should be provided to prevent abuse.
39. When the appropriate consent cannot be obtained because of an emergency situation, any medically necessary intervention may be carried out immediately for the benefit of the health of the older person concerned. Appropriate and effective safeguards should be provided to prevent abuse.”
The recommendation also, interestingly, contains specific examples of good practice drawn from member States of the Council of Europe in relation to each of its themes.
Such recommendations are non-binding, but have frequently proven in the past to be important in setting the agenda. It is perhaps, timely, that this particular recommendation has been made just as the Care Bill completes its passage through Parliament.