The Rights of Older People in Residential Care An Examination of the Law and Practice
Gannon, Bernadette Mary
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Since the foundation of the State older people in residential care settings have been largely 'invisible' to the State. Their personhood has been diminished or indeed negated where the older persons' will and preference has largely been ignored and decisions made in their, or perhaps more accurately, the State's or the residential care centres', best interest. This position arose perhaps out of disinterest and inertia but certainly this research demonstrates a major contributing factor were the large deficits with regard to law, policy and practice concerning older people and safeguarding their fundamental rights. Legislative craters still exist for many frail and/or vulnerable older people. Concomitant with this are the lacunae in policy and practice. International and regional human rights treaties which incorporate dignity of the individual as a core value provide clear direction for advancing human rights for older people in residential care settings in Ireland. The Convention on the Rights of Persons with Disabilities (CRPD) heralds a new departure for safeguarding fundamental rights. It is visionary in its concept and design. While the CRPD may not provide any new rights both the CRPD and the European Convention on Human Rights, itself a living instrument, when applied to older people, challenges us to make a difference by engaging with older people in residential care to provide robust protections to empower and protect their rights. Since Ireland is a dualist state, ratification of the CRPD is essential to enable implementation of the monitoring mechanism. While international human rights treaties do not have domestic legal effect they provide a very clear roadmap to enable reform of legislation and policy in the context of older people and residential care. Legal capacity reform is crucial as is reform of mental health legislation. The following steps need to be taken: elimination of wardship, reform of enduring power of attorney legislation especially capacity assessment and enactment of legislation with regard to advance care directives and advocacy. Variability in practice impacts on outcomes and expenditure in care which may have a detrimental effect on older people in residential care. Professional self-regulation should be abolished to prevent the possibility of exploitative and abusive behaviour by a worker. The potential for human rights' abuse increases with escalating dependency since the need for more intimate care is required. Multidisciplinary involvement is essential to addressing the complex care needs of older people in residential care. Legislative reform and policy development will have little impact unless they translate into practical and effective measures where best practice informs each workers relationship with the older person. Information, instruction, training and supervision of all workers are pivotal in securing fundamental rights for older people in residential care. The twelve hour working day should be reduced to a maximum of eight hours for all residential care workers. Independent inspection is critically important to ensure that the standards set are implemented and maintained.