Legal circumstances

It is evident that no law, whether domestic or international, is able to guarantee anybody the ‘right to be healthy’; that is why the intention of introducing the concept of the human right to health into international law was not to guarantee that anyone would enjoy good health. The intention was to compel States to adopt an active attitude towards the protection of human health.

In general terms, human health may be understood and interpreted in various ways and in various aspects (e.g. as a social health, as a bio-medical health, as a perceived health, as a good habit, as an ability, as well as being a state or a norm, etc.) (Erk Reference Erk2011: 61–4, 87; Nordenfelt Reference Nordenfelt2009: 4–5). However, at the international forum, it is described as not only an absence of disease or infirmity, but also as ‘a state of complete physical, mental and social well-being’ (WHO 1946: preamble to the WHO Constitution).

This complex right is an important element of the right to an adequate standard of living, as expressed in Article 25 [1] of the Universal Declaration of Human Rights:

Similarly to the Universal Declaration of Human Rights, none of the core international treaties indicate the right to health as such. The Constitution of the WHO states that ‘the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being, without distinction of race, religion, political belief, economic or social condition’. Further, its Article 1 indicates the WHO's objective, which is ‘attainment by all peoples of the highest possible level of health’ (WHO 1946: Article 1).

An identical approach has been adopted in the ICESCR of 1966, which in its Article 12 states:

This provision is regarded as the most authoritative definition of the right to health, which is an inclusive right, covering timely and appropriate health care. It also stipulates determinants of health, including access to safe and potable water, adequate sanitation, housing, and healthy occupational and environmental conditions (Baer et al. Reference Baer, Bhushan, Abou Taleb, Vasques and Thomas2016: 208). Except for Section 2a, all the factors pointed out in Article 12 are of significant value as determinants of the health of older people.

The right to the highest attainable standard of health and to access facilities for the treatment of illness and rehabilitation has been also included into other universal instruments, such as the Convention on the Rights of the Child of 1989 (United Nations 1989), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (United Nations 1990), the Convention on the Rights of Persons with Disabilities (United Nations 2006), and the Declaration on the Rights of Indigenous Peoples (United Nations 2007). Finally, the Convention on the Elimination of All Forms of Discrimination Against Women (United Nations 1979) and the International Convention on the Elimination of All Forms of Racial Discrimination (United Nations 1965) promote the elimination of discrimination in the field of health and equal access to health-care services.

Several regional human rights instruments also recognise the right to health, described as ‘the right to enjoy the best attainable state of physical and mental health’ in the African Charter on Human and Peoples’ Rights of 1981 (African Union 1981), ‘the highest attainable standard of physical and mental health and the right of the citizen to free basic health-care services and to have access to medical facilities without discrimination of any kind’ in the Arab Charter on Human Rights (League of Arab States 2004) and ‘the enjoyment of the highest level of physical, mental and social well-being’ in the American Protocol of San Salvador (Organization of American States 1988). Both European Social Charters of 1961 and 1996 (Council of Europe 1961, 1996) in their Article 11 itemise ‘the right to the protection of health’, stipulating that State Parties should undertake appropriate measures designed to remove, as far as possible, the causes of ill-health and prevent, as far as possible, epidemic, endemic and other diseases.

It should also be remembered that the widely understood right to health is not limited to the provisions guaranteeing rights of a social nature. The degree of respect for civil rights and fundamental freedoms also affects the human right to health, because all human rights are indivisible, inter-dependent, inter-related and of equal importance for human dignity. Evidently, the right to health is strongly tied with the ‘most basic right’ – the right to life (Etzioni Reference Etzioni2007: 103). The right to life extends an effective protective umbrella over social rights whenever and wherever they are violated, and if this violation causes an immediate danger for human life (Jasudowicz Reference Jasudowicz, Gronowska, Jasudowicz, Balcerzak, Lubiszewski and Mizerski2010: 289). It may happen in cases of inappropriate nutrition, lack of medical health care and essential drugs or living in an unhealthy environment.

Obviously, the right to life is included in all core treaties containing civil and political rights, such as Article 5 of the International Covenant on Civil and Political Rights (ICCPR) (United Nations 1966b), Article 10 of the Convention on the Rights of Persons with Disabilities (United Nations 2006), Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (Council of Europe 1950), Article 4 of the American Convention on Human Rights (Organization of American States 1969) and, finally, the above-mentioned in Article 4 of the African (Banjul) Charter on Human and Peoples’ Rights (African Union 1981) as well as Article 5 of the Arab Charter on Human Rights (League of Arab States 2004).

The Human Rights Committee, interpreting the right to life contained in Article 6 of the ICCPR, stated that the expression ‘inherent right to life’ cannot be properly understood in a restrictive manner, and the protection of this right requires that States adopt positive measures, especially in eliminating malnutrition and epidemics, aimed at increasing life expectancy (Human Rights Committee 1982).

Although the ECHR itself does not guarantee the right to health, the European Court of Human Rights, considering complaints concerning violations of the right to life contained in Article 2 of ECHR, repeatedly rules on matters relating to the functioning of the health service. In the Court's opinion, under certain circumstances, such as lack of access to medical care or restrictions on access to medicines, there may be a violation of Article 2 and other provisions. In several cases the European Court of Human Rights has found a violation of the Convention due to poor hospital conditions and/or inappropriate treatment and care for older persons. For example, in the case Dodov v. Bulgaria concerning the disappearance of an Alzheimer patient from a nursing home, the Court ruled that there was a violation of Article 2 in connection with the right to a fair trial contained in Article 6, para. 1 (European Court of Human Rights 2008). However, considering the progressive character of the States’ obligations in the social area, the Court in its judgements takes into account the fact that the level of guaranteed medical care, including the availability of reimbursed medicines, depends on the financial capacity of a State (Mikołajczyk Reference Mikołajczyk2012: 234–5).

Summing up, it is obvious that the right to health and its components are sometimes contested and interpreted differently across the world as States vary in their legal tradition and economic possibilities. However, this right has been enumerated in international treaties, and furthermore, considerable developments in international law with respect to the normative definition should be noted (Tobin Reference Tobin2012: 2–5, 14–43; Toebes et al. Reference Toebes, Ferguson, Markovic and Nnamuchi2014; Yamin Reference Yamin2005). First of all, one should be aware that the notion of the ‘right to health’ is a kind of mental shortcut. It must be interpreted as a conglomerate of many entitlements and freedoms that should be protected by a State in order to obtain ‘the highest attainable standard of physical and mental health’ of every human being. It includes both high-quality health care and healthy living conditions. It also implies the right not to be discriminated against in the health-care sphere and the right to participate in decisions affecting one's health. It is closely linked with active social citizenship (Yamin Reference Yamin2005: 1159).

Interpretation of the universal obligations

The geographical scope of a significant number of State Parties to the ICESCR and full acceptance (without reservation) of its Article 12 indicate world-wide acceptance of this provision. Recognising that there is no universal treaty referring to older persons, Article 12 of the Covenant appears as a key instrument of the protection of the right to health of this category of people. Therefore, the interpretation of the Covenant provided by the Committee on Economic, Social and Cultural Rights (CESCR) in its general comments plays a guiding role to States Parties on the meaning, scope and application of the provisions of the Covenant. The Committee's General Comment No. 14 (CESCR 2000) is crucial for an understanding and the proper application in practice of the ‘right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. In this document, the Committee confirms that the right to health may be pursued through numerous, complementary approaches, such as the creation of health policies, implementing various health programmes and adopting specific legal instruments, e.g. prohibiting discrimination in the field of health care (CESCR 2000: para. 1). As a result, States have an obligation to achieve progressively the full implementation of the rights under the Covenant (CESCR 2000: paras 30–1). This progressive character is reflected in the new communication (complaint) procedure under the Optional Protocol to the Covenant, where the Committee considers the complaints submitted against States Parties due to violations of rights contained in the Covenant. According to Article 8 [4] of the Protocol to the Covenant adopted in 2008, the Committee ‘shall consider the reasonableness of the steps taken by the State Party’ and ‘shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights’ (United Nations 2008). It should be noted that the essence of the obligations resulting from the Covenant relies on a gradual approach and not an immediate result. Thus, the duty of the State is consistent action.

Article 12 [2] of the Covenant contains non-exhaustive examples of such actions which the States Parties are obliged to take. It may be observed that with the passing of time and the development of medicine and technology, the scope of the components of the right to health and hence the duties of the State are continuously expanding and becoming more and more detailed. That is why States submit some objections (including the United States of America (USA), which has signed but not ratified the Covenant) to the contents of the right to health that appear at national level (Marks Reference Marks2016).

However, the Committee has no doubt that the State has three types of obligation: to respect, to protect and to fulfil the right to health. They cover not only the right to access health care, health goods and services, but they also extend to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment (CESCR 2000: para. 4).

A failure to perform just one of these three obligations constitutes a violation of the right to health. For example, the obligation to respect requires States to refrain from denying or limiting equal access for all persons to preventive, curative and palliative health services. The obligation to protect means that States should prevent violations of such rights by third parties, including health care, social assistance institutions or private carers. Finally, to fulfil their obligations, States are required to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full implementation of such rights, for example in the field of establishing the health-care system and access to it (Limburg Principles 1987; Maastricht Guidelines 1997). On the other hand, a considerable margin of appreciation must be given to States to allow them to take up various specific actions according to their possibilities, though this margin should remain subject to the overriding caveat that all measures adopted will be effective (Tobin Reference Tobin2012: 179).

It must also be stressed that the highest attainable standard of health may be reached when all these scientific achievements, services, goods and facilities related to health become available, accessible (physically and economically), acceptable and are of good quality.

Availability means, inter alia, a sufficient quantity of functioning public health-care facilities, programmes, necessary assistive devices, as well as essential drugs, pain-relieving medicines and end-of-life care. In the area of accessibility, States are obliged to ensure physical accessibility by universal design (stipulated in the Convention on the Rights of Persons with Disabilities), through the promotion of accessible public transport. Accessibility also includes information about health matters and economic affordability. Acceptability requires, among others, various age-friendly responses to older persons’ needs, taking into account the diversity of this category of people, with special attention to the situation of women living longer than men and being more frequently exposed to disabilities and infirmity. Finally, high-quality care requires skilled, competent and empathic medical staff and care-givers as well as high-quality health services (Baer et al. Reference Baer, Bhushan, Abou Taleb, Vasques and Thomas2016).

Finally, it may be stated that the right to health stipulated in the Covenant should be recognised as the State's task, which requires taking various actions in many spheres of social life, including legal developments, that should take into account disparities based among other things, on age, mental health, disability and socio-economic status (Castleberry Reference Castleberry2015). In the case of older citizens, the task often becomes even more difficult due to their social exclusion as persons with disabilities and/or persons belonging to the poorest category of the population (Global Ageing 2006: 10; WHO 2002: 126).

Non-discrimination

The United Nations Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, argues that age discrimination against older adults appears as a significant obstacle to accessing primary care and preventing chronic illness. He also points out that discriminatory attitudes of medical staff towards older persons can undermine meaningful communication with patients, and in consequence may reduce the accuracy of diagnosis and aggravate the quality of treatment. Therefore, the Rapporteur urges States to respect the right to health by refraining from various discriminatory practices and protecting older persons against such treatment by all stakeholders involved in providing health-care services (United Nations General Assembly 2011: paras 38–9, 57).

However, international law seems to be quite imprecise in relation to the ban on discrimination based on age, including old age. Thus, the Universal Declaration of Human Rights, in its Article 2, states that ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (United Nations General Assembly 1948). The same premises have been introduced to both Covenants. Therefore, only the premises of ‘other status’ can be taken into account as grounds for the prohibition of age discrimination.

When the initial assumption that the premise of ‘other status’ included the premise of age turned out not to be obvious, the views of the Committee on Economic, Social and Cultural Rights evolved. The Committee's General Comments No. 6 of 1995 on The Economic, Social and Cultural Rights of Older Persons, hardly considered the possibility of covering age with the premise of ‘other status’ (CESCR 1995), but 14 years later, when analysing the scope of Article 2 Section 2 of the Covenant, in General Comment No. 20, the Committee clearly included age (young and old) in the list of premises of ‘other status’. The fact is that in the case of old-age discrimination, the Committee did not refer to health, only itemising problems connected with the economic situation of older adults (CESCR 2009: para. 29), but on the other hand, in the above-mentioned General Comments No. 14 on the right to health, it indicated the State's obligation to abstain from enforcing discriminatory practices as State policy, especially in relation to various vulnerable groups. Undoubtedly, depending on circumstances, old persons can be treated as vulnerable.

The Human Rights Committee has gone through a similar evolution, which was initially even more reluctant to include age in the ‘other status’ premise when interpreting the anti-discrimination clauses contained in Articles 2 and 26 of the ICCPR. However, over the years, the opinion of the Committee softened, and a significant change in the Human Rights Committee's views finally occurred in 2011, in the case Néstor Julio Canessa Albareda et al. v. Uruguay. In this case, the Committee finally took the view that ‘age may constitute one of the grounds for discrimination prohibited under Article 26, provided that it is the grounds for establishing differentiated treatment that is not based on reasonable and objective criteria’ (Human Rights Committee 2011: para. 9.2). Recognition of age as a premise of non-discrimination is undoubtedly significant for the enjoyment of all health-related (directly or indirectly) civil and political rights.

Similarly, at a regional level, a separate age premise in the anti-discrimination clauses is usually not present either. One exception is the EU forum. The EU fundamental acts – the Treaty on the Functioning of the European Union (European Union 2007) and the Charter of Fundamental Rights (European Union 2000) – contain ‘age’ placed in their anti-discrimination clauses. In addition, in view of old-age discrimination, Article 21 of the Charter should be considered together with its Article 25 referring to the EU's respect for the ‘rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life’. Undoubtedly, ‘life of dignity and independence’ also covers health-related situations.

However, the American Convention on Human Rights, the Protocol of San Salvador, the African Charter on Human and Peoples’ Rights, the Arab Charter on Human Rights, the ECHR and the European Social Charters, similarly to universal documents, contain only prerequisites of ‘other status’ or ‘other condition’, which potentially may cover age. In addition, Article 14 of the ECHR is connected only with the civil and political rights stipulated in the Convention, which to some extent limit its potential activity in the field of health protection. Admittedly, Additional Protocol No. 12 to the Convention (Council of Europe 2000) prohibits discrimination in all spheres of life and goes beyond the scope of the Convention, but States are not very willing to become parties to this treaty (in October 2017, just 20 of 47 Member States of the Council of Europe in a timespan of over 16 years). On the other hand, there is nothing to prevent the States’ authorities, courts (including the European Court of Human Rights) and other stakeholders from interpreting ‘other status’ as covering age, including old age. The European Court of Human Rights does not usually rule on discrimination based solely on age which appears in the background of other premises and circumstances. Even in a recent judgement of the European Court of Human Rights in Carvalho Pinto de Sousa Morais v. Portugal of July 2017 (European Court of Human Rights 2017), the premise of age gave way to the premise of sex, although the applicant regarded both premises equally.

This case is worth remembering, especially in the context of the right to health, discrimination, and combating barriers and stereotypes. The case concerned a 70-year-old woman who claimed that, as a consequence of an error during a surgical procedure when she was 50, she had been suffering from depression, ‘faecal and urinary incontinence’ as well as having ‘difficulty in having sex’. Ms Carvalho complained against the judgement of the Portuguese Supreme Administrative Court which had acknowledged the medical error, but simultaneously had reduced the compensation awarded to her by a court of lower instance. The Supreme Administrative Court justified its decision assuming that sexuality was not as important for a 50-year-old woman and mother of two children as for someone of a younger age. The European Court of Human Rights, by five votes to two, ruled in the applicant's favour, finding a violation of Articles 14 and 8 (respect for family and private life). The European Court of Human Rights compared the claimant's case with the similar situation of male victims of medical malpractice and found that stereotypes against women having sex in old age and the assumption that sexuality is not so important for a 50-year-old woman ‘ignore its physical and psychological relevance for the self-fulfilment of women as people’ (European Court of Human Rights 2017: para. 52). Unfortunately, the Court does not specifically mention the age stereotype. In the opinion of two dissenting judges (Ravarani and Bošnjak), the Court failed to address the applicant's complaint regarding discrimination on the basis of age, while also failing to perform any convincing analysis of the alleged difference in treatment on the basis of gender (European Court of Human Rights 2017: dissenting opinion, paras 37–8). The dissenting judges imputed an error in methodology to other judges. In their view, the Portuguese court did not discriminate on grounds of sex because it did not presume that women's sex lives were less important than men's, but stated that older women's sex lives are less important than younger women's. In the context of ruling on age discrimination, the European Court of Human Rights judgement is disappointing. However, complex dissenting opinions allow one to assume that, over time, the premise of age will have the same weight as other premises.

The case of Carvalho Pinto referred to the problem of multiple discrimination, which is worthy of particular attention due to the gendered nature of ageing and the fact that there are (recent figures of 2015) 85.6 men for every 100 women over the age of 60, and only 62.7 men for every 100 women over the age of 80 (United Nations 2015). The Thematic Study elaborated by the United Nations Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health confirms that older women are often more disadvantaged because they may suffer from a combination of both gender and age discrimination (United Nations General Assembly 2011). A number of lifecourse events (including a lack of education, lower incomes, disruptions to work due to family responsibilities and discrimination in access to the labour market) affect the health of women in old age. The same factors affecting women's enjoyment of the highest attainable standard of health are indicated by the Committee on the Elimination of Discrimination Against Women which, interpreting the Convention on the Elimination of All Forms of Discrimination Against Women of 1979 (United Nations 1979), issued the special General Recommendation No. 27 dedicated to older women. In this recommendation, the Committee expresses, among other things, its opinion that in many countries the lack of telecommunication skills, access to adequate housing, social services and the internet, loneliness and isolation pose problems for older women in many spheres of life, as well as in access to health care (Committee on the Elimination of Discrimination Against Women 2010: para. 12).

Finally, it should be also noted that not one of the aforementioned treaties refers to ageism, which is obvious as they refer to the rights of all human beings, not explicitly to older people who are exposed to this phenomenon. However, surprisingly, the above-mentioned official interpretations of the relevant international provisions provided by the competent bodies, the CESCR and the United Nations Rapporteur do not mention the need to eliminate ageism going usually hand-in-hand with age discrimination (Council of Europe 2013). Certainly ageism as discriminatory conduct analogous to racism and sexism exists. Ageism, as ‘systematic stereotyping and discrimination against people simply because they are old’ (Butler Reference Butler2008: 40), coined by Robert Butler, also occurs in the health-care sector. The use by physicians of advanced chronological age as a determining factor to deny or limit medical treatment is controversial, but still accepted. In the literature discussing the research on the inappropriate use of age in health care, the notion of ‘medical ageism’ has been introduced (Williams Reference Williams2009: 13). Lack of references to ageism, also in a health context, shows that the issue of discrimination and stereotypes against older persons has not yet been fully explored.

On the other hand, new challenges, arising from global ageing, the health sector included, are becoming more and more prevalent at the international forum. The United Nations Special Rapporteur, in his report of 2011 (United Nations General Assembly 2011), on the right of all to the enjoyment of the highest attainable standard of physical and mental health, emphasises the necessity of a biomedical approach to ageing which, combined with increased longevity, has resulted in new ethical dilemmas requiring new solutions.

In the context of more and more frequent dilemmas connected with medical advances, including prolonging human life, it is worth mentioning the European Convention on Biomedicine and Human Rights (Council of Europe 1997). Its main assumption is that the interests of human beings precede the interests of science and society. Rules such as the above-mentioned are bound to appear more and more often among the norms of international law. They are often overridden by the development of medicine and the creation of new areas of science, such as genetics, biotechnology, bioengineering, etc. They can be assumed to be a signum temporis and they are becoming more and more important in ageing societies.

Obligation to take positive action

The guarantee of non-discrimination of people based on age is only the first step on the way to real protection of the enjoyment of the highest attainable standard of physical and mental health. The second condition of successful protection is States taking the relevant legal and practical measures in the field discussed. Therefore, the CESCR, in its General Comment No. 14, expresses its opinion that States’ obligations arising from Article 12 of ICESCR cover, among other things, the need to adopt an integrated approach, combining elements of preventive, curative and rehabilitative health treatment. The Committee stresses the role of periodical check-ups and physical and as well as psychological rehabilitative measures aimed at maintaining the functionality and autonomy of older persons. Finally, the Committee indicates the need for attention and care for chronically and terminally ill persons, sparing them avoidable pain and enabling them to die with dignity (CESCR 2000: 25).

Interpreting Article 12 of the Covenant, the Committee also refers to the relevant paragraphs of its previous General Comment No. 6 dedicated to economic, social and cultural rights of older persons of 1995 (CESCR 1995). There, with a view to achieving the right of older persons to enjoy a satisfactory standard of physical and mental health, the Committee stresses that the growing number of chronic, degenerative diseases and the high costs of hospitalisation cannot limit the measures taken by States only to provide curative treatment. States should take into account the need to invest in healthy ageing during the entire lifespan. It means the adoption of policies promoting healthy lifestyles and relevant steps in the area of prevention of diseases, through regular check-ups suited to the needs of seniors. Moreover, relevant steps should be taken in relation to rehabilitation, which plays a decisive role in maintaining the functional capacities of older persons. Recommending all these actions to States, the Committee is aware that all the components of healthy ageing require significant financial outlay.

The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, analysing all the States’ international obligations towards the right to health of older persons, has indicated similar key actions taken by States. He believes that State decision-making bodies operating in the area of health protection should mitigate the consequences of an ageing society and ensure the enjoyment of this human right by older persons. This requires States to take particular steps as part of the development and implementation of comprehensive health plans that must include various strategies (applying, among other things, new and innovative age-friendly information) to ensure that older persons have access to high-quality health care, goods and services. As a result, States should allocate more resources for providing geriatric health care, training medical and social staff to deal with the particular health issues associated with ageing, and improving communication across specialties, including allied health professions such as dentists, pharmacists, etc., as well as the personalisation of care. The latter often means ‘a shift in focus from curing to caring’ in order to meet the patient's personal goals better (United Nations General Assembly 2011: para. 43).

The active attitude of States towards the protection of the health of older women is also indicated by the Committee on the Elimination of Discrimination Against Women. This Committee states that meeting the goals of the Convention on the Elimination of All Forms of Discrimination Against Women in relation to health (Articles 10, 11, 12 and 15) requires from State Parties the adoption of a comprehensive health-care policy ensuring affordable and accessible health care covering screening for and treatment of diseases, in particular those most prevalent among older women. Health policies and programmes should be tailored to the physical, mental, emotional and health needs of older women, and take into account the social situation of older women, including those with disabilities, women belonging to minorities, as well as women tasked with caring for grandchildren and other young family dependants due to the migration of young adults, and women caring for family members living with or affected by HIV/AIDS (Committee on the Elimination of Discrimination Against Women 2010: paras 45–6).

Lastly, Article 25 of the Convention on the Rights of Persons with Disabilities of 2006 also puts an obligation on States to take positive action in the area of health protection. It requires taking all appropriate measures to ensure access to gender-sensitive health services and rehabilitation. Taking into account the subject of this paper, it should be noted that older persons with disabilities are explicitly indicated as beneficiaries of services designed to minimise and prevent further disabilities (United Nations 2006). Undoubtedly, this Convention plays an important role in the protection of older persons’ right to health as respect for inherent dignity, individual autonomy, non-discrimination, full and effective participation and inclusion in society, equality of opportunity, accessibility, and equality between men and women are its leading principles. However, it should be remembered that not every older person is disabled, and not every person with a disability is elderly.

Lex specialis

As stated above, no treaties on the rights of older persons have been adopted at any global forum. This loophole is papered over with non-binding instruments such as the 1982 Vienna International Plan of Action on Ageing (United Nations General Assembly 1982) and the United Nations Principles for Older Persons of 1991 (United Nations General Assembly 1991). The most recent and comprehensive of these is the Political Declaration and the Madrid International Plan of Action on Ageing, adopted at the Second World Assembly on Ageing in April 2002 and endorsed by the General Assembly in Resolution 57/167 of 18 December 2002 (United Nations General Assembly 2002). All of these documents refer to measures that should be taken by States in the area of health and care. The Madrid Plan contains a long list of States’ objectives and guidelines for actions concerning health, included in the framework of the priority called ‘Advancing health and well-being into old age’. They present very useful tools for achieving the highest attainable standard of physical and mental health stipulated in Article 12 of ICESCR, but a failure to comply with them does not entail any legal consequences for States, due to their non-binding character.

This situation may change if a relevant treaty is adopted at the United Nations forum. The need for this has been indicated in reports of the Independent Expert on the enjoyment of all human rights by older persons (Human Rights Council 2014, 2015, 2016), and several resolutions have been adopted by the United Nations General Assembly and the Human Rights Council. The establishment of the Open-ended Working Group on the Human Rights of Older Persons in 2010 (United Nations General Assembly 2010), which has been given a mandate to draft a new treaty (United Nations General Assembly 2012), permits a certain expectation of further steps in this field.

Meanwhile, two legally binding instruments have been adopted at two regional forums. The first of these is the Inter-American Convention on Protecting the Human Rights of Older Persons, which came into force on 11 January 2017 (Organization of American States 2015). This new convention appears to be a very demanding instrument. Its Article 4 contains a whole range of ‘States’ behaviours’ in relation to older persons. The States should adopt

Next, there is a long list of affirmative measures that should be adopted by States to the full extent of their available resources, possibilities and level of development.

Health issues have been included in Articles 11 and 12. The first of these refers to the right to give free and informed consent on health matters. States are obliged to ensure this right by drawing up and enforcing appropriate and effective mechanisms to prevent abuse, and to strengthen the capacity of older persons to understand fully existing treatment options and their risks and benefits. All the information should be provided in a timely fashion, on a non-discriminatory basis, and in an accessible and easily understood form. Undoubtedly, these safeguards protecting older persons’ right to consent and the right to obtain information on the consequences of their decisions are significant from an ethical point of view.

Moreover, the right of an older patient to take their own decision is also strengthened in the Convention by imposing on States the obligation to establish a procedure that enables older persons to indicate expressly in advance their will and instructions with regard to health-care interventions and palliative care.

Article 12 of the Convention is dedicated to older persons receiving long-term care. According to this provision, they have

In order to achieve this aim, States are obliged, among other, things to: design relevant assistance measures for families and care-givers; develop a comprehensive care system; establish mechanisms ensuring respect for older persons’ free decisions on their treatment and care; ensure specialised personnel; establish an appropriate regulatory framework on the operations of long-term care services; ensure older persons have access to information (especially to their own physical or digital records); promote access to the various media and sources of information; prevent arbitrary or illegal intrusions in their private life; promote older persons’ interaction with their family and society; and to protect their integrity, privacy and intimacy, as well as their personal security, liberty and freedom of movement.

All these recommendations would remain just empty wishes without an effective mechanism controlling how States Parties comply with the obligations set out in the Convention. That is why a follow-up mechanism was established. The Conference of States Parties to the Convention and the Committee of Experts will monitor measures taken by States, make recommendations, and promote the exchange of experience and good practices between States. The Convention also provides for a procedure of individual complaints that are to be investigated by the Inter-American Commission on Human Rights. The Inter-American Court of Human Rights is competent to provide an interpretation of the provisions of the Convention.

The second binding legal instrument that has recently been adopted is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa adopted at the African Union forum on 31 January 2016 (African Union 2016). In comparison with the American Convention, this treaty seems to be very general in indicating measures that the States should take in order to ensure older persons’ rights. In relation to access to health care, the States’ obligations are formulated in a very general way. Article 15 of the Protocol requires States to guarantee the rights of older persons to access health services that meet their specific needs, to take reasonable measures to facilitate access to the economically available health services and medical insurance and, finally, to ensure that geriatrics and gerontology will be introduced into the training of health-care personnel. The controlling mechanism adopted in this treaty is also very limited. It is based on reports submitted by State Parties to the African Commission on Human and Peoples’ Rights.

Surprisingly, no similar treaty has been put in place in Europe. Here the solution has been through soft law documents referring to specific aspects of ageing, and particular problems of older persons. However, the most recent and the most crucial document relating to older persons is the Committee of Ministers Recommendation CM/Rec(2014)2 to Member States on the promotion of human rights of older persons of 19 February 2014 (Council of Europe 2014). It is a complex act and applies a human rights-based approach to the situation of all older persons in various life situations. The main assumption of this Recommendation is that older persons should enjoy their fundamental rights and freedoms on an equal basis with other people. Its main goal is to eliminate barriers preventing older adults from enjoying their rights.

The Recommendation does not have the value of a treaty, but on the other hand, it may be assumed that it is part of a new generation of soft law acts, as it contains guidelines and good practices and, significantly, despite its non-binding nature, it is equipped with a type of follow-up mechanism (verification of its implementation by the Committee of Ministers of the Council of Europe). Thus, despite its non-binding force, it has quite strong enforcement mechanisms, sometimes even stronger than certain treaties (Shelton Reference Shelton2003: 8; Terpan Reference Terpan2015: 77).

The Recommendation contains general principles on care and health care referring to the accessibility, availability and quality of health care and long-term care. One of the main assumptions is that older persons should be able to stay for as long as possible in their own homes, so the relevant services should be available within the community. Another principle is the promotion of a multi-dimensional approach to health and social care and co-operation among the competent services. The Recommendation stresses the duties of well-trained care providers to protect the sensitive personal data of older persons and to preserve their right to privacy. Finally, it contains a long list of measures that should be taken by States in relation to the consent to medical care and in the field of palliative care, as well as providing examples of good practices introduced in the Council of Europe Member States.

The Recommendation of 2014 refers to a whole catalogue of older persons’ rights, so its health-related provisions are rather limited. Therefore, the Parliamentary Assembly in 2017 adopted Resolution No. 2168 ‘Human rights of older persons and their comprehensive care’, indicating measures which should be taken by States with a view to combating ageism, improving care for older persons and preventing their social exclusion. The Assembly calls for States inter alia to: ensure the availability, accessibility and affordability of health care and long-term care for older persons; integrate health and social care services for older persons; ensure adequate training of health-care professionals in geriatrics and establish geriatric centres throughout the territory where possible; adopt a charter of rights for older persons in care settings; monitor long-term care institutions by an independent body; ensure appropriate assistance and support for older persons living in their homes, including medical and nursing care, meals on wheels and domestic assistance; ensure financial and practical support for informal care-givers, including training, counselling and advice, and take measures to offer them respite; and raise awareness of physical, psychological and financial abuse of older persons, and collect relevant data, including on associated risk factors, with a view to drawing up an action plan to eliminate such abuse (Council Of Europe 2017).

On three continents, three different approaches to the rights of older persons have been adopted. They usually call on States to eliminate various stereotypes and prejudices. Comparing these regional solutions, it may be stated that the European solution appears to be the most ‘generous’ and detailed in formulating the rights of older persons and in indicating the States’ obligations, including in the area of health. It is perhaps not surprising, because they are acts of soft law. It is much more difficult to achieve inter-State consensus in the case of a treaty. For this reason, the effort which American and African States put into negotiating the treaties should be recognised. The African Protocol is a step forward, but it is of a very general character, rather paving the way for further steps to come. The American Convention also contributes significantly to raising awareness about older persons’ rights. Nowadays, however, it is difficult to prejudge whether the adopted regional treaties will contribute to the real protection of persons belonging to older generations. The African Protocol has not yet been ratified by a single State (October 2017). The American Convention came into force with only two ratifications. The drafting and adoption of the treaty, without a significant number of ratifications, can cause a lot of damage. The lack of ratifications may suggest that the subject matter covered by the treaty is of little importance and may also adversely affect the working out of the treaty developed within the United Nations. It is therefore possible that the European solution of adopting soft law, especially the ‘treaty-like’ Recommendation of 2014, will turn out to be the most effective.