of the Committee of Ministers to member States
on the promotion of human rights of older persons
(Adopted by the Committee of Ministers on 19 February 2014
at the 1192nd meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve a greater unity between its member States, inter alia, by promoting common standards and developing actions in the field of human rights;
Bearing in mind notably the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) in the light of the relevant case law of the European Court of Human Rights, the European Social Charter (ETS No. 35), opened for signature in 1961 and revised in 1996 (ETS No. 163), in particular its Article 23 (The right of elderly persons to social protection), in the light of its interpretation by the European Committee of Social Rights, as well as the relevant provisions of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (ETS No. 164);
Taking into account Recommendation CM/Rec(2011)5 of the Committee of Ministers on reducing the risk of vulnerability of elderly migrants and improving their welfare, Recommendation CM/Rec(2009)6 on ageing and disability in the 21st century: sustainable frameworks to enable greater quality of life in an inclusive society, and Recommendation Rec(94)9 concerning elderly people;
Having regard to Parliamentary Assembly Resolution 1793 (2011) on “Promoting active ageing – capitalising on older people’s working potential”, Recommendation 1796 (2007) on “The situation of elderly persons in Europe”, Recommendation 1749 (2006) and Resolution 1502 (2006) on “Demographic challenges for social cohesion”, Recommendation 1591 (2003) on “Challenges of social policy in Europe’s ageing societies”, Recommendation 1619 (2003) on “The rights of elderly migrants”, and Recommendation 1418 (1999) on “The protection of the human rights and dignity of the terminally ill and the dying”;
Recalling the provisions relevant to older persons in the United Nations Convention on the Rights of Persons with Disabilities and in the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe (2006-2015);
Having regard to the relevant international conventions and instruments, as well as to the ongoing work of the United Nations, notably the United Nations Principles for Older Persons (1991), the Madrid International Plan of Action on Ageing (MIPAA) and the Regional Implementation Strategy for Europe, the Open-ended Working Group on Ageing for the purpose of strengthening the protection of human rights of older persons, and the decision by the Human Rights Council on the appointment of an independent expert on the enjoyment of all human rights by older persons;
Conscious of the demographic changes in Europe and the ever-increasing number of older persons in our societies;
Stressing that the great increase in life expectancy which has taken place in the past century should not be perceived as a burden for society but as a positive trend;
Recalling the important human, social and economic contribution which older persons bring to society;
Reaffirming that all human rights and fundamental freedoms are universal, indivisible, interdependent and interrelated, and their full enjoyment, without any discrimination, by older persons needs to be guaranteed;
Recognising that while existing international human rights standards apply to persons at all stages of life and form an adequate normative framework for the protection of the human rights of older persons, additional efforts should be made to assess the protection gaps that arise from insufficient implementation of, information about and monitoring of existing law as regards older persons;
Recognising that, as a result of these implementation gaps, including in information and monitoring, older persons may be victims of abuse and neglect and have their human rights ignored or denied, and stressing therefore that effective measures should be taken to ensure the full enjoyment of their human rights;
Recognising that solidarity and respect between generations are of great importance and should be encouraged, both in the family and on the individual level, as well as on the private and public institutional level;
Stressing that older persons should be able to fully and effectively participate and be included in society and that all older persons should be able to live their lives in dignity and security, free from discrimination, isolation, violence, neglect and abuse, and as autonomously as possible;
Recalling that respect for the dignity of older persons should be guaranteed in all circumstances, including mental disorder, disability, disease and end-of-life situations,
Recommends that the governments of the member States:
1. ensure that the principles set out in the appendix to this recommendation are complied with in national legislation and practice relating to older persons, and evaluate the effectiveness of the measures taken;
2. ensure, by appropriate means and action – including, where appropriate, translation – a wide dissemination of this recommendation among competent authorities and stakeholders, with a view to raising awareness of the human rights and fundamental freedoms of older persons;
3. consider providing examples of good practices related to the implementation of this recommendation with a view to their inclusion in a shared information system accessible to the public;
4. examine, within the Committee of Ministers, the implementation of this recommendation five years after its adoption.
Appendix to Recommendation CM/Rec(2014)2
I. Scope and general principles
1. The purpose of the present recommendation is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all older persons, and to promote respect for their inherent dignity.
2. The present recommendation applies to persons whose older age constitutes, alone or in interaction with other factors, including perceptions and attitudes, a barrier to the full enjoyment of their human rights and fundamental freedoms and their full and effective participation in society on an equal basis. It takes note that Council of Europe member States have identified chronological ages at national level whereby persons enjoy specific rights and advantages by reason of their older age.
3. Older persons shall fully enjoy the rights guaranteed in the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: “European Convention on Human Rights”) and the protocols thereto, the European Social Charter, opened for signature in 1961 and revised in 1996, and other relevant international human rights instruments, to the extent that member States are bound by them.
4. Older persons should have access to sufficient information about their rights.
5. Older persons should be appropriately consulted, through representative organisations, prior to the adoption of measures that have an impact on the enjoyment of their human rights.
6. Older persons shall enjoy their rights and freedoms without discrimination on any grounds, including age.
7. Member States should consider making explicit reference to “age” in their national anti-discrimination legislation.
8. Member States should take effective measures to prevent multiple discrimination of older persons.
III. Autonomy and participation
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.
10. Older persons should have the possibility to interact with others and to fully participate in social, cultural and education and training activities, as well as in public life.
11. Older persons have the right to dignity and respect for their private and family life, including respect for their sexual intimacy, to the fullest extent.
12. Older persons enjoy legal capacity on an equal basis with others.
13. Older persons have the right to receive appropriate support in taking their decisions and exercising their legal capacity when they feel the need for it, including by appointing a trusted third party of their own choice to help with their decisions. This appointed party should support the older person on his or her request and in conformity with his or her will and preferences.
14. Member States should provide for legislation which allows older persons to regulate their affairs in the event that they are unable to express their instructions at a later stage.
15. Member States should ensure that all measures that relate to decision making and the exercise of legal capacity of older persons, including possible restrictions which may be required for protection purposes, provide for appropriate and effective safeguards to prevent abuse. The safeguards should be proportionate to the degree to which such measures affect the older person’s rights and interests.
IV. Protection from 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.
V. Social protection and employment
21. Older persons should receive appropriate resources enabling them to have an adequate standard of living and participate in public, economic, social and cultural life.
22. Member States should take measures to facilitate mobility of older persons and proper access to infrastructure for them.
23. Member States should provide adequate measures of support to enable older persons to have housing adapted to their current and future needs.
24. Member States should promote, either by public institutions or in co-operation with non-governmental organisations or with the private sector, sufficient supplementary services such as adult day care, nursing care or preparation of meals.
25. Member States which have not yet ratified the European Social Charter (revised) and the Additional Protocol to the European Social Charter providing for a system of collective complaints (ETS No. 158) are invited to consider doing so. Those which have already ratified the revised Charter, but are not yet bound by Article 23 (The right to social protection of older persons), are invited to consider declaring that they consider themselves to be bound by that provision.
26. Member States should ensure that older persons do not face discrimination in employment, including on grounds of age, in both the public and private sectors. This should include aspects such as conditions for access to employment (including recruitment conditions), vocational initial and continuous training, working conditions (including dismissal and remuneration), membership in trade unions or retirement. Member States should ensure that any difference in treatment is justified by furthering a legitimate aim of employment policy and by being proportionate to achieve that aim.
27. Member States should include the promotion of participation of older persons in the labour market in their employment policies.
28. Member States should pay specific attention to safety and health problems of older workers in their respective programmes, action plans and other relevant policy action.
A. General Principles
29. Member States should take appropriate measures, including preventive measures, to promote, maintain and improve the health and well-being of older persons. They should also ensure that appropriate health care and long-term quality care is available and accessible.
30. Services should be available within the community to enable older persons to stay as long as possible in their own homes.
31. In order to better assess and fulfil the needs of older persons, member States should promote a multi-dimensional approach to health and social care for them and encourage co-operation amongst the competent services.
32. Care providers should treat any sensitive personal data of older persons confidentially and carefully in accordance with their right to privacy.
33. Care should be affordable for older persons and programmes should be in place to assist older persons, if necessary, with covering the costs.
34. Care givers should receive sufficient training and support to adequately ensure the quality of the services provided. Where older persons are being cared for at home by informal carers, the latter should likewise receive sufficient training and support to ensure that they are able to deliver the care needed.
35. Member States should operate a system through which care delivery is regulated and assessed.
B. Consent to medical care
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.
C. Residential and institutional care
40. Member States should provide for sufficient and adequate residential services for those older persons who are no longer able or do not wish to reside in their own homes.
41. Older persons who are placed in institutional care have the right to freedom of movement. Any restrictions must be lawful, necessary and proportionate and in accordance with international law. There should be adequate safeguards for review of such decisions. Member States should ensure that any individual constraints for an older person should be implemented with the free and informed consent of that person, or as a proportionate response to a risk of harm.
42. Member States should ensure that there is a competent and independent authority or body responsible for the inspection of both public and private residential institutions. Member States should provide for easily accessible and effective complaint mechanisms and redress for any deficiencies in the quality of care.
43. Older persons in principle should only be placed in residential, institutional or psychiatric care with their free and informed consent. Any exception to this principle must fulfil the requirements of the European Convention on Human Rights, in particular the right to liberty and security (Article 5).
D. Palliative care
44. Member States should offer palliative care for older persons who suffer from a life-threatening or life-limiting illness to ensure their well-being and allow them to live and die with dignity.
45. Any older person who is in need of palliative care should be entitled to access it without undue delay, in a setting which is consistent with his or her needs and preferences, including at home and in long-term care settings.
46. Family members and friends should be encouraged to accompany older persons who are terminally ill or dying. They should receive professional support, for example by ambulatory palliative-care services.
47. Health-care providers involved in palliative care should fully respect patients’ rights, and comply with professional obligations and standards.
48. Trained specialists in the field of palliative care should be available to lead education and research in the field. Programmes of palliative-care education should be incorporated into the training of all health and social-care workers concerned and co-operation of professionals in palliative care should be encouraged.
49. Member States should ensure the adequate availability and accessibility of palliative-care medicines.
50. In the organisation of their national palliative-care systems, member States should take into account Recommendation Rec(2003)24 of the Committee of Ministers to member States on the organisation of palliative care.
VII. Administration of justice
51. In the determination of their civil rights and obligations or of any criminal charge against them, older persons are entitled to a fair trial within a reasonable time within the meaning of Article 6 of the European Convention on Human Rights. Member States should take appropriate measures to accommodate the course of the judicial proceedings to the needs of older persons, for example by providing, where appropriate, free legal assistance and legal aid.
52. The competent judicial authorities should display particular diligence in handling cases in which older persons are involved. In particular, they should duly take into account their age and health.
53. Member States shall ensure that detention of older persons does not amount to inhuman or degrading treatment. The assessment of the minimum level of severity for a treatment to be considered inhuman or degrading depends on several factors, including the age and health of the person. Consideration should be given to alternatives to detention of older persons.
54. Member States shall safeguard the well-being and dignity of older persons in detention. In particular, they should ensure that the health of older persons is monitored at regular intervals and that they receive appropriate medical and mental health care. Moreover, member States should provide older persons in detention with conditions appropriate to their age, including appropriate access to sanitary, sports, education and training and leisure facilities. Member States should ensure social reintegration of older persons after release.