Never too old for health and human rights?

Abstract

The protection of the human rights of older people is becoming an increasingly urgent concern. At the same time, an analysis of the current legal protections available for older people to challenge health and care decisions exposes the obstacles faced in obtaining meaningful recognition and implementation of these rights. In this article, we consider the problems faced when relying on a primarily legalistic means of human rights protection. The potential to reconceptualize the issue and focus instead on what it means to secure rights for older people is explored. We conclude that moving away from reliance on predominantly procedural and doctrinal approaches to the substantive protection of rights provides greater opportunities to address the more pressing issues facing vulnerable older people in society. Whilst much has been written about individuals who lack capacity and the relationship between a rights approach and best interests tests, we primarily address older people who retain capacity but are nonetheless vulnerable as a result of illness, poverty, isolation or simply extreme old age.