Welcome to the 22nd WCP Congress Program Scheduling

Abstract Body

About 20% of older persons experience some kind of mental health condition. However, neither old age nor a diagnosis of a mental disorder is sufficient in itself to determine the lack of capacity to make meaningful decisions. Moreover, capacity might change over time and might vary depending on the issues at hand. Key components of capacity include understanding, appreciation, reasoning, retention and the ability to express preference with consistency. Older persons who are capable of making decisions have the right to refuse treatment which they believe would compromise their quality of life.

The impairment of decision capacity leaves older persons with mental health conditions vulnerable to loss of liberty and exploitation. They are less likely to be able to advocate for themselves and protect their own interests. Responding to this reality, most states have established mechanisms for the determination of capacity and for decisions to be made on behalf of persons found to lack capacity. Those decisions may cover areas such as finances, living situations, medical treatment, hospitalization and institutionalization in long care facilities. These decisions are vital to preserve liberty and are based on promoting wellbeing, autonomy, independence, safety, privacy, respect and access to all forms of healthcare.

A substitute decision maker (SDM) may be appointed, or lawful advance directives put in place, in order to protect the personal, health and or financial interests of older persons who experiences impaired decisional capacity. People with limited capacity should be allowed to make those decisions, which they remain capable of making for themselves. An SDM must only be invoked as a last resort and be limited to areas over which an individual is proven to lack capacity. In these situations, appropriate measures should be taken to ensure and maintain discretion, respect, privacy, and protect the older person’s dignity. A SDM must be considered as a complementary alternative to optimize the person’s liberty, and not as a substitute for it.

The process to appoint a SDM depends on the functioning of the justice system and the access to it. That access to justice is not only an important right in itself but also enables the enjoyment of many other human rights. Yet older persons, particularly those with mental health conditions, face a significant “justice gap.” Ageist attitudes, laws and practices interact with other forms of bias such as mentalism, sexism, ableism, racism, homophobia, and heterosexism exacer[1]bating older persons’ disadvantage and marginalization, particularly those with mental health conditions, and older indigenous persons. These discriminatory practices, together with the phenomena of elder abuse, all severely limit older persons’ access to timely and responsive justice. International and national standards, both general and specific to older persons, have been shown to be inadequate to respond to this justice gap. An international standard in the form of a binding legal obligation that specifically addresses older persons’ rights of access to justice is needed urgently as part of a new international treaty on the human rights of older persons