COVID-19 and older persons: Why we need a federal Human Rights Act – Nathan Kennedy

COVID-19 has made older Australians fear for their lives and also for whether they will receive care to the same standard as younger people.  Would better human rights protection in law, such as a federal Human Rights Act, ensure policies put human dignity at their core and free older persons from this fear?

The preamble to the Universal Declaration of Human Rights includes ‘freedom from fear’ as the ‘highest aspiration of the common people’.  The current pandemic is scary, especially for older persons.  Not just because they are at higher risk of dying from the virus but because they fear being seen as less deserving of the best care due to their age.  Stronger human rights protections in Australia, such as a Human Rights Act, could assist in allaying those fears.

The Aged Care Royal Commission has heard that Australia’s COVID-19 aged care death rate is among the highest in the world.  By September 2020 approximately 74% of Australian COVID-19 deaths were residents of aged care.  The data also clearly shows that while a person is more likely to catch COVID-19 if they are aged in their 20s, the vast majority of those who have died are aged 70 or over.

Evidence at the Disability Royal Commission addressed the fear of people with a disability about being triaged out of potentially life-saving care; and with over half of Australians between the ages of 65 and 80 reporting a moderate or severe disability it is likely that older people hold the same fear.  Women with Disabilities Victoria chief executive, Leah van Poppel told The Saturday Paper that some of the conversations about herd immunity “reveal underlying ableism, suggesting the deaths among high-risk groups such as aged-care residents and people with a disability might be a necessary sacrifice for the nation’s economic wellbeing”.  In relation to older persons it also reveals an underlying ageism.

The Aged Care Royal Commission’s special COVID-19 report raised questions about the treatment of aged care residents during the pandemic.  The Commission noted that aged care residents ‘have endured restrictions for most of this year that go beyond those endured by the general community’.  The Commission decried the lack of funding for additional staff to facilitate continued visits by family and friends in a COVID-safe way.  In its view, ‘[i]n all but extreme cases, blanket bans on visitation are unacceptable and should be both explained and justified’.

Maybe the explanation was that COVID-19 was especially dangerous to older persons but were blanket visitor bans proportionate and justified?  One witness described how she believed her father had died due to lack of family contact.  In an attempt to protect him, the policy of non-visitation might have killed him.  

Another witness described how she had only found out by accident that her father had contracted COVID-19 (p 19).  She didn’t think her father had even been told that he had COVID-19 and she questioned if he received the best care.  He died two days after testing positive for the disease.

The Commission reports that COVID-19 has seen a large increase in depression, anxiety and confusion in residents and that the risk of suicide has increased.

Joseph Ibrahim argues that currently, residential aged care operates according to what’s convenient for government, aged-care providers, and hospitals.  The evidence noted above may lend some support to this as well as further examples provided in the Royal Commission report where some residents with COVID were denied access to hospital care.  Mr Ibrahim claims that some of these decisions were made regardless of whether remaining in the facility aligned with the resident’s wishes or their best interests.

Mr Ibrahim says that the future of aged care demands an active human rights approach to protect the rights of aged-care residents at policy formulation and in the courts.  This is precisely what a Human Rights Act is designed to do.  Professor George Williams explains that a Human Rights Act would ensure ‘basic freedoms and human dignity are taken into account at the earliest stages of development of law and policy …[and] recognise that the decisive point in protecting human rights is not in court after damage has been done, but in government and parliament before a law or policy comes into effect’.  

There are numerous examples (p 16) of human rights acts in Australia and elsewhere that have created cultural shifts in governments and their departments leading to policy and law making focussing on human rights and the dignity of the person.

All human rights come from dignity – our inherent dignity as human beings – and as difficult as that may be to define, we can almost instinctively tell when a person’s dignity is not being respected.  Dignity is tied to our conception of humanity.  When we fail to respect a person’s dignity, we stop seeing them as human.  It is then very easy to count their lives as expendable for ‘herd immunity’ or to fail to put their wishes or best interests at the heart of decisions made about their lives and health care.  

The Royal Commission has made a number of recommendations for improvements in aged care in light of COVID-19 but it is questionable whether this would have been necessary if Australia already had a Human Rights Act.  As the Law Council of Australia has highlighted, ultimately, Royal Commissions are reactive, while a Human Rights Act would serve as ‘a proactive tool’ to prevent human rights breaches in the first place.  As President Pauline Wright said at her National Press Club address ‘a human rights ethos – established across the public and private sectors, across aged care, disability services, childcare, education, health and detention facilities – may curb the systemic need for what can seem like almost rolling Royal Commissions, investigating complex, wide-ranging social justice failures in Australia.’

A Human Rights Act can cement in law minimum standards for the respect for human dignity.  When faced with a pandemic and fears from high risk members of the community that they are expendable, dignity should be at the heart of our response.  Whether or not the fears are justified, at present Australia lacks a strong commitment to human rights in law and it is easy to see why such fears exist.

Geoffrey Robertson QC wrote:

“If rights are not capable of legal enforcement then they are not rights at all. They are empty promises. A right must by definition be enforceable, which means it must be capable of assertion by lawyers and adjudicated by judges.”

A Human Rights Act would require courts to interpret law in accordance with human rights and could make formal declarations of incompatibility.  Conduct by public authorities inconsistent with human rights would be unlawful.  Rights would no longer be empty promises in Australia.  Importantly, a Human Rights Act would ensure that human rights and respect for human dignity guide the development of our laws and policies.  Those who are afraid they might be expendable, such as older people in this pandemic, could be free from fear. 

Nathan Kennedy is a solicitor in private practice with over 20 years’ experience.  He holds an LLM (Human Rights & Social Justice) from UNSW and is a former President of Australian Lawyers for Human Rights.  He has a number of interest areas in his pro bono work including the rights of older persons.