This past weekend, I visited my grandparents in their residential aged care home. As usual, it was both lovely and utterly heartbreaking. Lovely, because I feel so lucky to be able to spend time with them, that they are still alive, their home is accepting visitors, and they still remember who I am. But, also, heartbreaking, because aging is tough, and living in residential aged care is tougher still, and this year, well, this year has made it all so much harder.
When I arrived, I asked my grandma how she was. ‘Okay, darling,’ she replied, her eyes welling up with tears. This woman, who cared for me almost every holiday of my childhood, is the most stoic person I know. It is disorienting to see her cry — and profoundly confronting, particularly because my grandparents are living in an objectively excellent home, where the staff are kind, the food is decent and the gardens (as Grandpa keeps commenting) are ‘simply magnificent’. And we know just how much worse it could be.
How do we know? Well, because decades of reports, inquiries, media revelations, and now a Royal Commission have compiled rafts of evidence about the poor treatment of older persons in Australia, both in aged care and at home. And still so little action has been taken to address the issue. Instead, we have an aged care system that is poorly regulated and are only now seeing the beginnings of a tentative national plan to directly address elder abuse.
Why has this issue been allowed to fester for so long?
Some would argue that the major barrier to reform is that elder abuse (including psychological, emotional, physical and financial abuse and neglect) is such a complex issue. And, this is partly true. Addressing elder abuse will require a wide range of regulatory reforms around guardianship, enduring powers of attorney, banking, wills, social security, healthcare, criminal justice responses, and, of course, residential aged care.
However, one simple shift is all that is required to inform and coordinate this process — we need to start respecting the fundamental human rights of older people. From here, everything else will flow. As Professor Andrew Byrnes has recently commented, adopting an ‘explicit and comprehensive human rights framework… is not only the proper ethical approach but… it would [also] resonate with the values and expectations of the broad Australian community.’
'One of the missing pieces in the puzzle is a comprehensive international framework for the protection of the rights of older persons.'
Another benefit is that international human rights law is very clear about the responsibility of the state to respect, protect and fulfil the human rights of older persons. This means, for example, that the Commonwealth government, who has assumed regulatory responsibility for aged care, cannot wash its hands of accountability for the conditions that it has allowed to flourish. And it should, therefore, be held to account for its decisions not to mandate minimum staff ratios or standards for meals; to construct a toothless regulator, with minimal oversight, investigation or enforcement powers; and to select a consumer-based, ‘Charter of Aged Care Rights’ that has been described ‘an aspirational document that sits separate to, rather than being integrated into, the system.’ Essentially, a human rights-based approach would mean that rather than adopting a market-dominated framework that emphasises the need to constrain costs and protect corporate profits, the fundamental rights of older persons to dignity, autonomy and respect would be at the heart of all regulatory responses.
What might this look like? Well, it might start with something like South Australia’s new Adult Safeguarding Unit, which is guided in its work ‘to prevent, identify and respond to abuse or neglect’ by the new South Australian Charter of Rights and Freedoms of Older Persons. And, even then, as Professor Wendy Lacey (who played a key role in driving these legislative reforms) has emphasised, there would still be ‘a long way to go’ to provide a comprehensive human rights framework for the treatment of older persons in Australia.
One of the missing pieces in the puzzle is a comprehensive international framework for the protection of the rights of older persons. However, this, at least, seems to be high on the agenda, with a movement to develop such a treaty currently gaining momentum at the United Nations. The other missing piece is a comprehensive federal Charter of Rights, and this is looking less promising — although the Law Council did launch a new campaign on this very topic last week. And, finally, it is up to all of us. We need to stop looking away from the confronting stories and to demand fundamental change.
During my visit last weekend, we got my father on the phone so he could talk to Grandma and Grandpa. At first, Grandma was confused and kept reading his name out slowly from the screen on my phone as if trying to jog her memory, so we decided to try again with a video call. Grandma loves my Dad’s dog, Scout, so he brought him into the frame. Immediately, her face lit up.
‘Hello! Hello Scouty. How are you?’ she cooed into the phone.
When Dad turned the camera back to himself, she brought the phone close to her face and became very stern.
‘I hope you are treating him well,’ she said. ‘You’d better treat him well.’
‘He’s sitting on my lap on the couch, Mum,’ he replied.
‘Good,’ she said. ‘You be good to him.’
I laughed at her response (since Scout is a genuinely pampered member of Dad’s household), but it was also sobering. Here she was being so fierce in her commitment to protecting the rights of others. Surely, we can muster the same energy and commitment to protect her and all of our elders?
Dr Cristy Clark is a senior lecturer with the Faculty of Business, Government and Law at the University of Canberra. Her work focuses on the intersection of human rights, neoliberalism, activism and the environment, and particularly on the human right to water.
Main image: Young woman with her grandmother, discussing the coronavirus. Both with protective masks on their face. (Photo by Daniel Balakov/Getty Images)