Older In Years, Worse Off By Far?

‘Older persons remain chronically invisible despite pandemic spotlight’ concluded the UN Independent Expert on the enjoyment of all human rights by older persons in a recent statement.

In marking the International Day of Older Persons on 1 October 2020, the UN Independent Expert Claudia Mahler succinctly captured a lamentable reality far too familiar in far too many countries during the current pandemic, not least Canada:

“Tragically, the COVID-19 pandemic is shining a spotlight on older persons. It has a disproportionate impact on older persons and has magnified existing violations of their rights. Existing inequalities that older persons face in terms of access to health, employment and livelihood are exacerbated. This involuntary focus on older persons should not conceal the fact that they are chronically invisible.”

The full horror of the devastating impact of COVID-19 on Canada’s elderly was all too evident during the first wave of the pandemic, particularly on those seniors living in long term care homes. With a second wave of the pandemic seemingly fast descending upon parts of Canada, collective anxiety for the wellbeing of institutionalized seniors is only amplified.

Graffiti of Old Woman – Cristian Ungureanu (2019).

The increasingly numerous news stories highlighted on this website about outbreaks of COVID-19 in such settings fuel concerns that a tragic replay may be about to unfold in the coming winter months, reminiscent of scenes from earlier in the year. An awful rerun no less, perhaps epitomized at its worst by the thousands of deaths and the images of the Canadian military being drafted into barely-coping care homes in Ontario and Quebec.

Understandably, several class-action lawsuits have since been initiated owing to the apparent failure of such facilities to provide even a modicum of care for residents.


Ineffective oversight

Yet where is the effective independent oversight of such institutionalized settings in Canada?

An article published on this website in May 2020 titled Canada’s Senior Care Home Scandal forcefully advanced the argument for greater independent oversight of such institutions, including through the ratification and implementation of the OPCAT in the country.

Unsurprisingly, the UN Independent Expert on the enjoyment of all human rights by older persons has similarly urged adherence to the OPCAT in a report presented to the 75th session of the UN General Assembly just last week.

In an Annual Report titled Impact of the coronavirus disease (COVID-19) on the enjoyment of all human rights by older persons UN Expert Claudia Mahler explores the many challenges faced by seniors during the COVID-19 pandemic, recounting its bluntest impact in the following terms:

“The pandemic has had very broad effects on older persons: they have been denied health services; they have been physically and socially isolated; and they have been the victims of ageist attitudes. Despite being such a diverse group, older persons have been labelled as vulnerable and branded as burdens to societies. The pandemic has made very evident the urgent need to combat stigma and age discrimination.” (§26)

Within care home settings isolation has sometimes been the most acute, as the UN Independent Expert has observed:

“At the height of the pandemic, when official monitoring in some care homes was interrupted to focus on controlling the spread of the virus, the prohibition of regular visits from friends and family removed a crucial informal monitoring mechanism and provided an entry point for violence, abuse and neglect.” (§50)


People Walk – Titoy (2009).

Justice for seniors

In the said report, the UN Independent Expert passionately argues that the pandemic brings right to the fore the specific justice needs of older persons, such as addressing the rise in violence, maltreatment and abuse both in institutionalized as well as private care contexts, including the home.

One such justice-related measure advocated by the UN Independent Expert is for the establishment of independent bodies or entities for older persons, as follows:

“It is crucial to establish an independent and impartial entity, procedure or
body, possibly within an existing independent body, with the mandate to examine complaints pertaining to older persons. It is also important to apply the jurisdiction of the independent body, such as an ombudsperson, under the Optional Protocol to the Convention against Torture … and to consider its specific application to guarantee safe care for older persons, including in residences for dementia patients. Rather than creating a completely new institutional body, the establishment of an independent national commissioner on the enjoyment of all human rights by older persons within an existing human rights commission or human rights institution to serve as an independent entity for older persons should be considered.”
(§91)

While such bespoke entities for the elderly do exist in certain provinces in Canada, they certainly do not function akin to National Preventive Mechanisms under the OPCAT, clearly mandated to exercise dynamic and energetic independent oversight of an array of closed institutions, including care home facilities.

At the same time, widespread concerns about the efficacy of internal government oversight of care homes has become more pronounced as the pandemic has worsened. The Ontario Ombudsman launched an inquiry into government oversight into long term care homes during the pandemic in June 2020, while Quebec’s Protecteur du citoyen launched its analogue investigation into the crisis in September 2020.

See you at the finish line – Stefan Barna (2016).

In the devastating wake of the pandemic the Royal Society of Canada convened a Working Group on Long Term Care, which published a critical report in July 2020 titled Restoring Trust: COVID-19 and The Future of Long-Term Care. A key finding of the report relates to the need for transparent and arms-length data collection to be used to evaluate the accreditation and regulation of care homes. Furthermore, it was argued that governments must take an evidence-based and balanced approach to mandatory accreditation as well as to the regulation and inspection of such settings.

The Royal Society recommendations may be a few steps short of OPCAT perhaps, but they are, nonetheless, a move in the right direction to ensuring greater scrutiny.


Making a difference?

Yet would the ratification and implementation of the OPCAT have made any significant difference to the tragic outcomes to have beset care homes in Canada? The answer to the question is, admittedly, not back and white.

In July 2020 the Council of Europe’s highly respected detention monitoring body, the European Committee for the Prevention of Torture, issued a follow-up statement concerning the measures taken with regard to persons deprived of their liberty and the pandemic. The statement underscored the potentially highly positive impact of independent oversight in the following terms:

“From the CPT’s perspective, the pandemic also hit the hardest in those places of deprivation of liberty where previous recommendations made by the Committee had not been implemented. This relates to the entire spectrum of the CPT’s mandate: from prisons to social care homes, from psychiatric hospitals to immigration detention centres.”

The statement concluded:

“Finally, the CPT wishes to recall the crucial importance for the prevention of ill-treatment of monitoring of detention places by independent national and international human rights bodies. The findings of such bodies can be of great assistance to member States in assessing the practical impact of their policies upon persons deprived of their liberty. Consequently, the Committee welcomes the fact that, in several countries, National Preventive Mechanisms (NPM) and other national monitoring bodies have resumed visits to places of deprivation of liberty, whilst taking precautions to observe the ‘do no harm’ principle, and it hopes that this positive trend will be followed as soon as possible by other relevant bodies across Europe.”

Many of the shortcomings highlighted by the current pandemic were previously well known. Staggeringly, they had just never been acted upon in any systematic way in practice; nor did there exist in many jurisdictions a rugged independent framework of oversight to push for much-needed change.

While not a panacea for all care homes ills, the OPCAT instrument, if well implemented at the domestic level, could offer Canada a framework anchored in international human rights law to ensure eminently more robust oversight of such contexts, including through liaising with other regulatory bodies.

Quite clearly, the status quo patchwork of internal, often haphazardly performing regulatory bodies with responsibility for care settings is no longer an acceptable or operationally viable option in Canada. The OPCAT might just well offer a way forward.


Read the report of the Independent Expert on the enjoyment of all
human rights by older persons, Impact of the coronavirus disease (COVID-19) on the enjoyment of all human rights by older persons (21 July 2020).

Read the accompanying press release, Older persons remain chronically invisible despite pandemic spotlight, says UN expert.

Learn more about the mandate and mandate-holder of the Independent Expert on the enjoyment of all human rights by older persons.

Read the July 2020 statement of the European Committee for the Prevention of Torture in English and French.

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