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Elder Law

Antonisse, Larisa, ‘Strengthening the Right to Medicaid Home and Community-Based Services in the Post-Covid Era’ 121(6) Columbia Law Review 1801–1851
Abstract: The COVID-19 pandemic has laid bare the severe public health danger that institutional and congregate care settings pose to people with disabilities, older adults, and the care professionals who work in those settings. While the populations residing in congregate care settings are naturally more susceptible to the virus, the COVID-19 crisis in these settings could have been far more limited if there had been broader access to home and community-based services (HCBS), which allow people to live with the supports they need in their own homes and communities and avoid many of the health risks of congregate care settings. A major barrier to broadening access to HCBS is existing judicial interpretations of the reasonable modifcations regulation under the Americans with Disabilities Act (ADA). This regulation requires states and other public entities to ‘make reasonable modifications’ to avoid disability-based discrimination (which includes unjustified institutionalization) but does not require measures that would ‘fundamentally alter’ the nature of the entity’s programs. Unfortunately, the Supreme Court’s 1999 Olmstead v. L.C. decision and subsequent lower court decisions interpreting Olmstead have created a standard for this fundamental alteration defense that fails to fully protect individuals’ ADA right to services in an integrated setting and does not account for the public health risks of institutionalization. This Note argues that in light of the new and undeniable evidence from the COVID-19 pandemic of the public health risks of institutionalization, the Department of Justice should use its broad regulatory authority under the ADA to promulgate additional regulations that clarify and strengthen the fundamental alteration framework.

Armstrong, Pat, Hugh Armstrong and Ivy Bourgeault, ‘Privatization and COVID-19: A Deadly Combination for Nursing Homes’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 447
Abstract: In this chapter, we make visible the different forms of privatization of nursing homes to help understand how it has made residents and workers so highly susceptible to the deadliest aspects of the COVID-19 pandemic. Privatization includes the move to private (often for-profit) delivery of services, managerial practices, and responsibilization of individuals and their families. All these forms are evident in nursing homes, exacerbated by austerity measures. The conditions of work in nursing homes intensified with increasing privatization, decreased staffing, and increased resident acuity before the pandemic, but deteriorated dramatically when it began to hit home after home. The extent to which this deterioration can be directly linked to privatization is difficult to determine, but there are clear indications that privatization set the stage. Bold responses are needed to correct this course, not just during the current emergency, but going forward, to ensure that the many deaths in this sector have come with important lessons learned.

Barreto Parra, Paula Natalia et al, ‘The Effect of the COVID-19 Pandemic on the Elderly: Population Fatality Rates, Years of Life Lost, and Life Expectancy’ (2022) Elder Law Journal (forthcoming)
Abstract: The COVID-19 pandemic has disproportionately affected the elderly. This article provides a detailed analysis of those effects, drawing primarily on individual-level mortality data covering almost two million persons age 65+ in three Midwest states (Indiana, Illinois, and Wisconsin). We report sometimes surprising findings on population fatality rates (PFR), mean years of life lost per decedent (YLL), population life expectancy loss (LEL), and the ratio of COVID to non-COVID deaths, and examines how these metrics vary with age, gender, race/ethnicity, socio-economic status, and time period during the pandemic. For all persons in the three Midwest areas, COVID PFR through year-end 2021 was 0.23%, with YLL of 13.2 years and mean LEL of 0.030 years (11 days). In contrast, for the elderly, PFR was 1.13%; mean YLL was 8.9 years, and mean LEL was 0.100 years (37 days). National estimates for the elderly were similar. Controlling for age and gender, PFR was substantially higher for Blacks and Hispanics than for Whites at all ages, but racial/ethnic disparities for the elderly were large only early in the pandemic. Although COVID-19 mortality was much higher for the elderly, the ratio of COVID-19 to non-COVID-19 mortality over the pandemic was similar for both groups, at 16% for the elderly and 15% for the non-elderly. Indeed, in 2021, this ratio was lower for the elderly than the middle-aged, reflecting higher elderly vaccination rates.

Bennett, Belinda et al, ‘Australian Law During COVID-19: Meeting the Needs of Older Australians?’ (2022) 41(2) The University of Queensland Law Journal 127–160
Abstract: This article focuses on the interests of older Australians during the COVID-19 pandemic. It analyses the implications of the pandemic for older Australians from a human rights perspective, recognising the need to understand ageing as a process that occurs throughout life. Although we focus on the interests of older Australians, defining what is meant by ‘older’ can be challenging. Furthermore, there are complex social discourses around ageing. While there is no Convention on the Rights of Older Persons, international human rights law is relevant to the rights of older persons. We analyse international human rights law, Australian human rights law, and Australian antidiscrimination law in terms of their relevance to the rights of older persons in the context of the COVID-19 pandemic. With social distancing a key feature of the pandemic, we also consider the impact of social isolation on older persons and the potential for technology to assist in overcoming social isolation. Finally, we analyse current Australian laws relating to participation of individuals in research where capacity has been lost or is diminishing.

Bílková, Veronika, ‘Age-Based Triage and Human Rights’ (2023) 41(1) Netherlands Quarterly of Human Rights 13–34
Abstract: The article provides the first comprehensive assessment of age-based triage from the perspective of human rights. Triage, that is the sorting of patients into categories of priority of treatment, has been known for decades. It has however got larger prominence during the Covid-19 crisis. The crisis has exposed healthcare systems in many countries to a critical shortage of resources, forcing them to consider resorting to triage. The absence of legal rules has been compensated by non-binding triage guidelines, adopted by professional medical and ethical associations. This article analyses 11 guidelines, showing that none of them is truly age neutral. Some use allocation criteria that entail disparate treatment of older persons, consisting of their de-prioritization or exclusion from access to life-saving treatment on account of their age. Others rely on allocation criteria whose application has disparate effects on older persons. The article argues that whereas the latter approach could be compatible with human rights standards, the former entails violations of the principle of non-discrimination and of several other human rights (the right to life, the prohibition of inhuman and degrading treatment, the right to private life, and the right to health).

Billauer, Barbara Pfeffer, ‘Ageism and CoVid 19: First They Lock the Oldsters Up, Then They Refuse The Ventilators. What’s Next?’ (SSRN Scholarly Paper ID 3647209, 9 July 2020)
Abstract: Most commentators claim that age is a determinant of deaths from Co-Vid 19. This paper suggests flaws in this analysis. While co-morbidities associated with age may be contributory, there is no data showing that oldsters are more vulnerable to death from CoVid 19 than they are for dying generally. In fact, it appears that the aged population is less likely to die from CoVid than from Influenza and that the healthy oldster may be able to survive CoVid better than the healthy youngster. I further claim that CoVid policies targeting the elderly have unnecessarily contributed to their deaths. Thus rationing policies depriving the elderly of respirators and imposing restrictive lockdowns themselves contributed to the very assumptions on which these policy decisions were based.

Billauer, Barbara Pfeffer, ‘On the Proposal Not to Vaccinate the Aged for COVID-19’ (SSRN Scholarly Paper ID 3694407, 17 September 2020)
Abstract: Public Health Practice champions the objective of saving lives when allocating scarce resources. Bioethical precepts advocate equal respect for individuals. Anti-discrimination laws forbid making decisions on the basis of class or stereotypes. What happens when academics propose vaccine- allocation plans (in an article in The Conversation) which trespass on all three- promising that their plain will stop the epidemic? Insidious schemes which seem to promise nirvana while violating human and civil rights need to be examined very carefully. In this case, a careful examination discloses the proposed plan is inherently flawed, not just from a legal and ethical perspective, but from a public health perspective as well.

Billauer, Barbara Pfeffer, ‘The Prejudice, Politicization, and “Pariah-Tization” Influencing Pandemic Policy and Law: Stereotype as the Driver of Public Health Response’ (SSRN Scholarly Paper No 4675060, 24 December 2023)
Abstract: As the panic incident to COVID-19 subsides, various responses have come under attack. One was the misfocused targeting of the elderly; a second was ignoring the susceptibility of young. As a result. draconian lockdowns were instituted in nursing homes - a feature that exacerbated deaths in both the old, and youngsters were not monitored/masked/ or vaccinated, thereby increasing transmission and upping the incidence of disease in that group. Hard science did not support these conclusions or responses. Similarly, legal and public health responses in American to the cholera and yellow fever epidemics of the 1800s was not driven by science, as I show here. Instead, this Article demonstrates that a particular ‘pariah’ was blamed for each of various epidemics in the 1800s. The pariah or ‘other’ of choice was chosen by political expedience (e.g., the desire to control immigration) and prejudice (e.g., antisemitism and anti-Black). Laws, Legislation, and policy ignored science and proven public health practice which demonstrated that poor sewage drove the epidemics. Nevertheless, American policy makers and public health officials implemented quarantine (mistakenly believing the disease was contagious) or ordered disinfection (called sanitation) believing that disease was transmitted by ‘miasma’ or “bad air. The cohort identified as most susceptible and requiring quarantine or disinfection was predicated on stereotypes feeding ‘misinformed science’: the intemperate, the poor, the Black, the immigrant, and the Jew – all considered dirty or filth breeders. I suggest that a self-protective (and unconscious) desire by policy makers- generally younger and middle-classed – to artificially cocoon themselves from disease by creating an ‘other’ who is believed to be more susceptible seeded erroneous laws and policies of the 1800s. I suggest that same tendency was at play in ‘Pariah-tizing’ the elderly in COVID. I further suggest that awareness of this tendency by exploring past practices is the best prevention from future missteps.

Blackham, Alysia, ‘A Life Course Approach to Addressing Exponential Inequalities: Age, Gender, and Covid-19’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 233
Abstract: This chapter argues that age is an exponential amplifier of inequality. It puts forward a life course perspective as a nuanced lens for enriching our understanding of discrimination and its impacts over time. A life course approach offers a targeted focus for addressing exponential inequalities, drawing our attention to discrimination at critical transition points. Building on this life course perspective, experiences of discrimination over time can be seen as non-linear and multi-directional, but still interlinked and biographic, punctuating and shaping life stories in unpredictable ways. These ideas are illustrated through a case study of gendered ageism at work, drawing on empirical evidence to map how gender inequality is amplified with age and time, and further exacerbated by the impacts of the Covid-19 pandemic. Viewed with this life course lens, this chapter argues that discrimination law appears fundamentally ill-adapted for responding to exponential inequalities. The chapter therefore considers the extent to which ‘next generation’ positive duties—like the Gender Equality Act 2020 (Vic)—might address these concerns.

Browne, Darryl, ‘Elder Law and Succession’ (2020) 66 LSJ: Law Society of NSW Journal 99–100
Abstract: Home-made administration of home-made will - allegation of testamentary fraud - bank acts to prevent elder abuse - Australian Financial Complaints Authority is constitutionally valid - COVID-19 affected decision - leave to retract renunciation - apportionment of dividend.

Cahapay, Michael, ‘Senior Citizens during COVID-19 Crisis in the Philippines: Enabling Laws, Current Issues, and Shared Efforts’ (2020) 9(1) Research on Ageing and Social Policy 1–25
Abstract: While the COVID-19 crisis has affected people of all walks, there is an unheard side of the vulnerable aged group across the globe. This article discusses the condition of senior citizens in the Philippines during the COVID-19 crisis. The review showed that various enabling laws through the constitution, republic acts, and executive orders, have been enacted to secure the welfare of senior citizens. However, the current crisis has revealed ageism issues such as deprivation of income sources, inaccessibility to essential needs, inadequate physical space, and spoken negative perceptions. Shared efforts have been focused to improve social pension payout, guidelines for mobility, different approaches of remote access to goods and services, and meaningful internet connectivity within the context of the senior citizens. This paper suggests the need to translate the laws into effective programs, discuss related ageism issues with sensitivity, and consider evidence of successful international efforts to further improve the condition of the senior citizens in the country.

Caldararo, Niccolo Leo, ‘The End of Leisure and Retirement, COVID-19: Innovations, Jobs, Pensions, and Keynes: Guaranteed Income or Future Poverty and Redundancy?’ (SSRN Scholarly Paper No ID 3574285, 12 April 2020)
Abstract: The history of the support by society of the aged is discussed in cross cultural and historical context. Various cultural traditions are compared with the forms developed in complex societies from ancient Egypt and Greece and Rome, to China, the Aztec, Inca and Maya, to those of religious organizations, or those developed under different modern ideological systems like capitalism and communism as well as social democratic nations. It is found that the way a society values the aged and views their contribution to society determines largely their willingness to provide for their support. An increasing number of companies have gone bankrupt in recent years following the 2007 credit crisis and stock market collapse. More have raided their pension funds to stay afloat or have closed them and transferred liability to the federal Pension Benefit Guaranty Corporation. Major changes to federal law concerning pensions and the responsibility of corporations to fund them has made under the Pension Protection Act of 2006. World wide workers’ retirement payments are under assault as are investments by pension funds due to laws governing priority of payment in different countries concerning stock holders vs bondholders and liability for pension funds. The need for retirement of some kind in the post-Covid-19 world will require new forms as well as recovery of pre-Covid-19 savings and investments. Changes in the law are proposed to increase the stability of pensions and reliability to workers of pension payments.

Cathaoir, Katharina Ó et al, ‘Older Persons and the Right to Health in the Nordics during COVID-19’ (2021) 28 European Journal of Health Law (advance article, published online 6 September 2021)
Abstract: We reflect on the extent to which Nordic countries have safeguarded the right to health of older persons during the pandemic in 2020. All Nordic states have ratified the International Covenant on Economic, Social and Cultural Rights and thereby committed to recognising the right to health. We use the AAAQ framework developed by the Committee on Economic, Social and Cultural Rights to draw attention to aspects of the respective states’ responses. The COVID-19 pandemic has had significant impacts on the health of older persons, from the direct effects of the virus, such as illness and death, to indirect impacts, like isolation and loneliness. We find that Nordic states have at times failed to prioritise the full realisation of the core obligations of the right to health for older persons, namely, non-discrimination and provision of essential healthcare. Resource constraints cannot justify discrimination or failure to respect autonomy, integrity and human dignity.

Cerminara, Kathy L, Alina M Perez and Alexandra Kirby, ‘Using Therapeutic Jurisprudence to Improve Nursing Home Regulation During Future Pandemics’ (2022) 46(3) Nova Law Review (forthcoming)
Abstract: Therapeutic jurisprudence (‘TJ’) is a school of thought suggesting that legislatures, regulators, attorneys, and judges consider the extent to which rules, laws, and procedures impact the psychological well-being of those upon whom the law acts. The desire for positive psychological impact should not be the only—or even the primary—consideration when weighing appropriate legal action using TJ. Rather, without limiting focus, TJ explicitly favors an interdisciplinarity approach and counsels us to ‘consult [other] disciplines, consider the law’s therapeutic or anti-therapeutic effects on those it affects, and, importantly, see if the other disciplines have solutions to offer to remedy any anti-therapeutic effects of the law.’ If data about the law’s psychological effects or potential solutions does not yet exist, TJ scholarship can urge research in that direction.COVID-19 provides an excellent opportunity for TJ analysis, for isolation and no-visitation policies within nursing homes produced loneliness and despair that resulted in sub-optimal physical conditions among patients. First, this Article will situate COVID-19 within a long line of pandemics, illustrating the need for preparation for the next one the world will encounter. Second, because this Article, in the tradition of TJ scholarship, will propose continued future monitoring and collection of medical and social science data, it will review the structure of nursing home regulation and trace its relevant development in the United States during COVID-19 for non-legal researchers in the relevant fields. Third, through analyzing “patients’ actual experiences . . . with physicians[,] . . . other care providers, hospitals, and other facilities,” this Article will discuss the demonstrable mental and physical harm regulatory policies inflicted upon residents in nursing homes, using Florida as a state-level exemplar. Finally, this Article will collect, analyze, and propose improvements for consideration during the next pandemic, for there surely will be a next pandemic. As both federal and Florida regulators recognized during COVID-19, their initial regulatory activities were so anti-therapeutic that their latter steps rather than their initial ones should be emphasized in the next pandemic, as long as doing so is consistent with the medical and public health evidence.

Cordasco, Fabrizio et al, ‘The Silent Deaths of the Elderly in Long-Term Care Facilities during the Covid-19 Pandemic: The Role of Forensic Pathology’ (2020) 88(2) Medico-Legal Journal 66–68
Abstract: The Covid-19 pandemic is currently a major global public health problem. We know that the elderly and people with chronic diseases contract the infection more easily and they develop clinically more serious and often lethal forms. To date, the reasons for this have been generically attributed to old age and underlying diseases. Most Covid-19 deaths occurred in long-term care facilities because the residents are elderly people with chronic illness living in close contact. Therefore, facilities have become epidemic outbreaks. Forensic knowledge is very limited because an autopsy is rarely performed. Post-mortem investigations can help increase knowledge about Covid-19 and identify any undiagnosed pathologies in life. Therefore, forensic investigations play a role in protecting a frail population. Autopsies should be encouraged on elderly people who died of Covid-19.

Cousins, Emily, Kay de Vries and Karen Harrison Dening, ‘Ethical Care during COVID-19 for Care Home Residents with Dementia’ (2021) 28(1) Nursing Ethics 46–57
Abstract: The COVID-19 pandemic has had a devastating impact on care homes in the United Kingdom, particularly for those residents living with dementia. The impetus for this article comes from a recent review conducted by the authors. That review, a qualitative media analysis of news and academic articles published during the first few months of the outbreak, identified ethical care as a key theme warranting further investigation within the context of the crisis. To explore ethical care further, a set of salient ethical values for delivering care to care home residents living with dementia during the pandemic was derived from a synthesis of relevant ethical standards, codes and philosophical approaches. The ethical values identified were caring, non-maleficence, beneficence, procedural justice, dignity in death and dying, well-being, safety, and personhood. Using these ethical values as a framework, alongside examples from contemporaneous media and academic sources, this article discusses the delivery of ethical care to care home residents with dementia within the context of COVID-19. The analysis identifies positive examples of ethical values displayed by care home staff, care sector organisations, healthcare professionals and third sector advocacy organisations. However, concerns relating to the death rates, dignity, safety, well-being and personhood – of residents and staff – are also evident. These shortcomings are attributable to negligent government strategy, which resulted in delayed guidance, lack of resources and Personal Protective Equipment, unclear data, and inconsistent testing. Consequently, this review demonstrates the ways in which care homes are underfunded, under resourced and undervalued.

Dehm, Sara, Claire Loughnan and Linda Steele, ‘COVID-19 and Sites of Confinement: Public Health, Disposable Lives and Legal Accountability in Immigration Detention and Aged Care’ (2021) 44(1) University of New South Wales Law Journal 60–103
Abstract: The global COVID-19 pandemic starkly revealed the underlying structural harms and produced vulnerabilities for people living in closed congregate settings like immigration detention centres (‘IDCs’) and residential aged care facilities (‘RACFs’). This article compares the Australian legal regimes that regulate IDCs and RACFs, conceptualising both as authorising and enabling sites of control, confinement and social isolation. We argue that specific COVID-19 measures have intensified a logic of social exclusion and disposability towards people in IDCs and RACFs. Through comparing recent COVID-19 litigation, the article explores the possibilities and limitations of engaging legal strategies to achieve social reform and legal accountability within both sites of confinement. Ultimately, we suggest that such COVID-19 litigation has the greatest possibility of advancing social justice when it is embedded in a broader politics of de-incarceration and abolition oriented towards political inclusion, public health and building more equitable and just communities.

Delbon, Paola et al, ‘COVID-19 Vaccination in Nursing Homes: Considerations on Freedom to Make Decisions and Legal Protection Measures’ [2022] Journal of Gerontology and Geriatrics (advance article, published online 31 May 2022)
Jurisdiction: Italy
Abstract: In the most vulnerable people, especially among the elderly, the COVID-19 pandemic has brought to light complex ethical issues such as consent to receive health care, the relationship between risks and benefits of therapies, the choices to be made during the most serious phases of the disease and family relationships have been made extreme and heavily emphasized by the pandemic. The article analyzes the ethical and legal aspects of the problem of reconciling respect for the individual’s right to make their own decisions and the need to protect the most vulnerable and fragile sections of the population (the dilemma between the principle of charity and respect for autonomy), with all the related communication, procedural and legal problems relating to Informed Consent. The exceptional circumstances of the pandemic have prompted lawmakers to tackle the complex and long-neglected issue of the consent of vulnerable, generally elderly, individuals. In many contexts, from home to hospital to nursing home, patient involvement in decision making, the role of the family, and procedures for defining competencies above and beyond diagnostic categories, continue to be largely left behind. part in the hands of the health care workers or team. The methods chosen to obtain consent to vaccination, together with the provisions of the Law of 22 December 2017 on the role of the trustee, pave the way for more appropriate operating methods for daily clinical practice in the field.

Erasmus, N, ‘Age Discrimination in Critical Care Triage in South Africa: The Law and the Allocation of Scarce Health Resources in the COVID-19 Pandemic’ (2020) 110(12) South African Medical Journal 1172–1175
Abstract: No one may be refused emergency medical treatment in South Africa (SA). Yet score-based categorical exclusions used in critical care triage guidelines disproportionately discriminate against older adults, the cognitively and physically impaired, and the disabled. Adults over the age of 60, who make up 9.1% of the SA population, are most likely to present with disabilities and comorbidities at triage. Score-based models, drawn from international precedents, deny these patients admission to an ICU when resources are constrained, such as during influenza and COVID-19 outbreaks. The Critical Care Society of Southern Africa and the South African Medical Association adopted the Clinical Frailty Scale, which progressively withholds admission to ICUs based on age, frailty and comorbidities in a manner that potentially contravenes constitutional and equality prohibitions against unfair discrimination. The legal implications for healthcare providers are extensive, ranging from personal liability to hate speech and crimes against humanity. COVID-19 guidelines and score-based triage protocols must be revised urgently to eliminate unlawful discrimination against legally protected categories of patients in SA, including the disabled and the elderly. That will ensure legal certainty for health practitioners, and secure the full protections of the law to which the health-vulnerable and those of advanced age are constitutionally entitled.

di Fazio, N et al, ‘Italian Law No. 1/2021 on the Subject of Vaccination against Covid-19 in People with Mental Disabilities within the Nursing Homes’ (2021) 172(5) La Clinica terapeutica 414–419
Abstract: The Coronavirus Disease-19 (Covid-19) pandemic, in the last year, has resulted in a significant number of infections and deaths among nursing homes’ residents. This phenomenon has set up the necessity to subject these patients, often suffering from mental disabilities to a vaccination against Covid-19. However, vaccination has long been the subject of public atten-tion, being regulated differently in many European countries. In Italy, the Ministry of Health has given priority, vaccination-wise, to health facilities’ patients. The government has regulated through-law no. 1 of January 5, 2021, art. 5, the manifestation of consent to be Covid-19 vac-cinated in incapacitated subjects admitted to assisted health facilities. This rule arose from the need to protect fragile individuals as well as providing real dispositions for the involved health professionals. Nursing homes’ elderly guests could be divided into four catego-ries: a) subjects capable to express their will (affected by physical problems); b) subjects who, due to varying degrees of incapacitation, have their own legal guardian, curator or support administrator, ap-pointed in accordance with the law; c) incapacitated subjects without legal representatives d) subjects who, pursuant to law no. 219/2017, have appointed their own trustee. This paper provides for a clear exemplification of all the possible scenarios identified by the Italian law no.1/2021.

Finch, John, ‘Care Homes, COVID-19 and Legal Liability’ (2020) 22(9) Nursing and Residential Care 1–3
Abstract: The UK response to the pandemic has been characterised by a focus on the NHS, to the detriment of the adult social care sector. Official guidance has often been muddled and opaque, and legal action regarding duty of care and equipment provision may be on the horizion.

Frere, Kelly G and Matthew B Frere, ‘When Seniors Are Forced to Leave a Facility: Options for Care Can Be Limited’ (2020) 56(9) Tennessee Bar Journal 42–43
Abstract: An issue that is increasingly affecting seniors is being discharged or evicted — against their will and when they have nowhere else to go — from a hospital, long-term care facility or in-home care services. Unfortunately, this problem exists with little in the way of solutions. As the family’s lawyer, you need to know what resources are available — and be aware that there are not many.

Gahwi, Lena and Margaret Walton-Roberts, ‘Migrant Care Labour, Covid-19, and the Long-Term Care Crisis: Achieving Solidarity for Care Providers and Recipients’ in Anna Triandafyllidou (ed), Migration and Pandemics: Spaces of Solidarity and Spaces of Exception (Springer, 2022) 105–121 [OPEN ACCESS E-BOOK]
Abstract: Globally there is a care crisis in terms of the quantity of care needed for an aging population and the quality of both the care provided and work conditions of those providing this care. The COVID-19 pandemic has exposed and heighted this crisis of care. In this chapter we review the issue with a particular focus on long-term care (LTC) facilities and the type and skill mix of labour, including the degree to which immigrant workers are over-represented in this sector. We offer some conceptual reflections on elder care as a matter of social justice and ethics in terms of those needing and providing care. These concerns take on a specific global dimension when we understand the transnationalisation of care, or the care provisioning function of what are termed global care chains. We contextualise how this migrant labour is positioned within this sector through international comparisons of funding models for LTC, which also allows us to understand the structural conditions within which this globally-sourced workforce is positioned. We then highlight two significant contributing factors to the current LTC crisis that were intensified and exposed during the COVID-19 pandemic using Ontario, Canada, as an example: the role of the private sector and the unsustainable extraction of profits from this service, and the gendered and racialised devaluing of migrant labour so essential to the sector.

Gherman, Mihaela Alexandra, Laura Arhiri and Andrei Corneliu Holman, ‘Ageism and Moral Distress in Nurses Caring for Older Patients’ (2023) 33(4) Ethics & Behavior 322–338
Abstract: This study explored the influence of healthcare ageism on nurses’ moral distress. Episodic interviews were conducted on 25 Romanian nurses in 2020. Thematic analysis revealed that all moral distress sources reported reflected macro-, meso- and micro-level ageism, benevolent and hostile, self- or other-directed, including stereotyping, prejudice, and discrimination of older patients. The COVID-19 pandemic-related ageist measures increased healthcare ageism and transformed nurses’ representations of older patients accordingly. Nurses felt moral conflict both when passively witnessing ageist acts and when perpetrating them to adhere to group norms, highlighting the need to combat ageism for both patients’ and nurses’ well-being.

Giordano, Chiara, ‘Freedom or Money? The Dilemma of Migrant Live‐in Elderly Carers in Times of COVID‐19’ (2021) 28(S1) Gender, Work & Organization 137–150
Abstract: As a consequence of the lockdown measures imposed by the Belgian government to fight against COVID‐19, migrant live‐in elderly carers had to choose between safeguarding their job — at the detriment of their personal freedom, their health and their working conditions — and safeguarding their freedom but losing their job — at the detriment of their economic survival and that of their families. This article explores this dilemma from an intersectionality perspective. In order to understand their experience in times of COVID‐19 and their response to this dilemma, I analyse their position as women, as migrants, as elderly care workers, as family breadwinners and as ‘quasi‐family members’ in the families of their employer — which correspond to five interlocking systems of oppression.

Grey, Betsy, ‘Against Immunizing Nursing Homes’ (2021) The University of Chicago Law Review Online (advance article, published 8 July 2021)
Abstract: Nursing homes and other long-term care facilities account for approximately one third of the over 500,000 Covid-19 deaths in the United States. Facing liability from that widespread harm, the facilities have sought immunity protection from tort liability. In particular, they have sought protection under the federal Public Readiness and Emergency Preparedness (PREP) Act, which is designed to extend immunity from liability claims arising from various Covid-19 countermeasures developed and used during the pandemic. Importantly for this essay, the lawsuits filed against nursing homes have centered on their failure to take mitigation measures, rather than on harm from their affirmative use of mitigation measures. Initially, courts held that PREP Act immunity does not apply to these failure-to-act claims. In the waning days of the Trump Administration, however, HHS issued an opinion that (together with other HHS statements) interprets the statute otherwise, broadening immunity even to cover the failure to take mitigation measures. That interpretation has been followed by at least one federal district court. This essay questions the wisdom of HHS’s opinion. It argues that it misreads the words and purpose of the PREP Act’s immunity provisions, and undermines accountability of the nursing home industry, creates the wrong incentives for the industry, and may leave victims without any compensatory remedy. This issue should reach appellate courts soon. If the interpretation continues to be followed by the courts, then the Biden Administration should rescind the opinion so that tort law may continue to protect one of society’s most vulnerable populations.

Gutterman, Alan, 'Convention on Human Rights of Older Persons' (SSRN Scholarly Paper ID 3876618, 29 June 2021)
Abstract: Many have argued that it is appropriate to take into consideration the special circumstances of older persons when developing social and economic policies and there is a growing consensus regarding the need for explicit recognition of the specific rights of older persons in the form of an international convention or treaty that would raise the profile of the issues, serve as a basis for action in different contexts and empower advocates and members of that group to act. In addition, making certain rights explicitly applicable to older persons reduces the likelihood that they will be overlooked in the existing generic framework of human rights instruments that generally does not refer to age but relies solely on inferences that may be ignored or lack practical authority because they are difficult to apply to contexts that are different than those for which they were originally developed. Various arguments against and for a specific international convention or treaty for older persons have been made; however, the Covid-19 pandemic has created a new sense of urgency for such an instrument given the egregious violations of the human rights of such persons during the response to the emergency including discrimination, exclusion, marginalization, violence and abuse. Several roadmaps are available for negotiating and completing a new legally binding international instrument on the human rights of older persons including the UN Convention on the Rights of Persons with Disabilities, the Madrid International Plan of Action on Aging, the UN Principles for Older Persons and the Inter-American Convention on the Protection of the Human Rights of Older Persons and human rights advocates have grown frustrated with the pace of progress within the UN Open-Ended Working Group on Aging and urged States to stop talking and start writing in order to bring the project to fruition.

Jøranson, Nina et al, ‘Older Patients’ Perspectives on Illness and Healthcare during the Early Phase of the COVID-19 Pandemic’ (2022) 29(4) Nursing Ethics 872–884
Background: Equal access to healthcare is a core principle in Norway’s public healthcare system. The COVID-19 pandemic challenged healthcare systems in the early phase – in particular, related to testing and hospital capacity. There is little knowledge on how older people experienced being infected with an unfamiliar and severe disease, and how they experienced the need for healthcare early in the pandemic.
Findings: The main finding was that the informants experienced vulnerability and arbitrariness. This finding was supported by three sub-themes: experiences with a severe and unfamiliar disease, the strict criteria and the importance of someone advocating needs.
Discussion: Participants described varying access to healthcare. Those who did not meet the national criteria to be tested or hospitalised struggled against the system. Findings reveal arbitrary access to healthcare, in contrast to Norway’s ethical principle of fair and just access to health services. Moreover, to access and receive necessary healthcare, informants were dependent on their next-of-kin’s advocacy.
Conclusion: Even when dealing with an unfamiliar disease, health professionals’ assessments of symptoms must be performed with an ethical obligation to applicate competent appraisal and the exercise of discernment; this is in line with care ethics and ethical standards for nurses. These perspectives are a significant part of caring and the intension of doing good.

Koca-Atabey, Müjde, ‘Disability and Old Age: The COVID-19 Pandemic in Turkey’ (2021) 36(5) Disability & Society 834–839
Abstract: The COVID-19 pandemic has had significant and long-term social implication for economics, education, and employment. This paper aims to analyse the current situation in Turkey from the perspective of disabled and older people. Specific precautions related to the virus were taken for this population. However the precautions were implemented in a disorganized manner and did not necessarily protect the whole group. In some cases the precautions might be detrimental by nature. It was concluded that the governments need to be flexible to support the citizens. This analysis could be beneficial to Turkey and other countries in the case of that disease or a different pandemic.

Kohn, Nina A, ‘Nursing Homes, COVID-19, and the Consequences of Regulatory Failure’ (2021) 110 Georgetown Law Journal Online (pre-print, published 20 April 2021)
Abstract: This essay explores the COVID-19 crisis in America’s nursing homes and its lessons for the future of long-term care. It challenges narratives portraying nursing homes as the unfortunate victims of COVID-19 by showing how the crisis is the foreseeable result of regulatory gaps and failures that have long enabled nursing homes to engage in systemic neglect. It then shows how regulatory approaches employed in other parts of the U.S. healthcare system could be used to create a more humane and resilient long-term care system. It concludes by considering the implications of such reforms for enhancing equity and reducing structural ageism.

Kohn, Nina A et al, ‘Using What We Have: How Existing Legal Authorities Can Help Fix America’s Nursing Home Crisis’ (2023) 6 William & Mary Law Review (forthcoming)
Abstract: The COVID-19 pandemic exposed systemic quality-of-care problems in American nursing homes as well as the deadly consequences of a regulatory system that has enabled nursing homes to divert funds needed for care to profit. Policy experts have responded by urging regulators to improve nursing-home oversight practices and by calling for new regulatory and statutory authority to increase accountability. These calls, however, have been met with sharp political headwinds. This Article suggests a path around the political impasse. Specifically, it identifies and explores four opportunities to leverage existing statutory schemes to create stronger incentives for nursing homes to provide high-quality care. It then explores how politics, administrative complexity, and ageism have come together to prevent this existing authority from being used to its full potential. It concludes by situating the current regulatory failure to hold nursing homes accountable in the context of a larger discussion about the costs of federalism in the health care arena.

Lewis, Oliver, ‘COVID-19 and Care Homes Inquiry: An Urgent Call’ [2020] (September) Counsel 40–41
Abstract: Calls for an inquiry under the Inquiries Act 2005 into the Government’s response to the COVID-19 pandemic and its effect on care homes. Lists key questions for such an inquiry.

Liddell, Kathleen et al, ‘Isolating Residents Including Wandering Residents in Care and Group Homes: Medical Ethics and English Law in the Context of Covid-19’ (2021) 74(January-February) International Journal of Law and Psychiatry Article 101649
Abstract: This article investigates the lawfulness of isolating residents of care and group homes during the COVID-19 pandemic. Many residents are mobile, and their freedom to move is a central ethical tenet and human right. It is not however an absolute right and trade-offs between autonomy, liberty and health need to be made since COVID-19 is highly infectious and poses serious risks of critical illness and death. People living in care and group homes may be particularly vulnerable because recommended hygiene practices are difficult for them and many residents are elderly, and/or have co-morbidities. In some circumstances, the trade-offs can be made easily with the agreement of the resident and for short periods of time. However challenging cases arise, in particular for residents and occupants with dementia who ‘wander’, meaning they have a strong need to walk, sometimes due to agitation, as may also be the case for some people with developmental disability (e.g. autism), or as a consequence of mental illness. This article addresses three central questions: (1) in what circumstances is it lawful to isolate residents of social care homes to prevent transmission of COVID-19, in particular where the resident has a strong compulsion to walk and will not, or cannot, remain still and isolated? (2) what types of strategies are lawful to curtail walking and achieve isolation and social distancing? (3) is law reform required to ensure any action to restrict freedoms is lawful and not excessive? These questions emerged during the first wave of the COVID-19 pandemic and are still relevant. Although focussed on COVID-19, the results are also relevant to other future outbreaks of infectious diseases in care and group homes. Likewise, while we concentrate on the law in England and Wales, the analysis and implications have international significance.

Martin-Khan, Melinda and Elizabeth Beattie, ‘The COVID-19 Pandemic and the Impact of Legislative Requirements on Residential Aged Care’ in Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021)

Mędrzycki, Radosław, ‘Standards of Public Administration Services for the Elderly: A Lesson in Pandemic Time’ in Irena Lipowicz, Grażyna Szpor and Aleksandra Syrt (eds), Instruments of Public Law: Digital Transformation during the Pandemic (Routledge, 2022)

Meier, Benjamin Mason, Victoria Matus and Maximillian Seunik, ‘COVID-19 Raises a Health & Human Rights Imperative to Advance a UN Convention on the Rights of Older Persons’ [2021] BMJ Global Health (forthcoming)
Abstract: The COVID-19 pandemic has revealed the inequitable health harms and human rights violations faced by older persons, raising a need to support healthy ageing policy as a human rights imperative. However, international human rights law has long neglected the health-related human rights of older persons. Drawing from evolving advocacy efforts to advance the rights of older persons through the United Nations (UN), tentative initial steps have been taken at the regional level, with States in the Americas codifying intersectional rights obligations underlying health through the Inter-American Convention on Protecting the Human Rights of Older Persons. These international and regional efforts provide a foundation to advance the right to health for older persons. Amid an ongoing demographic transition and an inequitable pandemic response, the prospective UN Convention on the Rights of Older Persons provides a crucial opportunity to elaborate and uphold the international legal obligations necessary to facilitate healthy ageing.

Michalowski, Sabine, ‘The Use of Age as a Triage Criterion’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 93–100
Extract from Introduction: This contribution will address some of the ethical and human rights considerations that should inform the discussion of whether age can be regarded as a valid criterion to decide who receives life-saving treatment at a time of acute scarcity of medical resources, using the Covid-19 pandemic as a case study.

Morrison-Dayan, Rachel, ‘Protecting the Right to Social Participation of Older Persons in Long-Term Care under Article 19 of the United Nations Convention on the Rights of Persons with Disabilities’ (2023) 23(2) Human Rights Law Review (advance article, published online 22 March 2023)
Abstract: The COVID-19 pandemic has drawn public attention to the long-standing issues of social isolation and loneliness of older persons living in residential long-term care (LTC) and has increased awareness of the importance of social participation. This article aims to contribute towards a shift in the understanding of how the United Nations Convention on the Rights of Persons with Disabilities (CRPD) may be applied in aged-care. It argues that the CRPD, in particular Article 19 (Living independently and being included in the community), has considerable potential to protect the right to social participation. It is also argued that changes in LTC settings and support may assist in protecting this right. Furthermore, the participation of older persons in this process and cultural change within LTC provider organizations and the general community is crucial. However, applying the Convention in the aged-care context raises challenges that require further consideration by human rights mechanisms.

Ó Néill, Clayton, ‘“This Is No Country for Old (Wo)Men”? An Examination of the Approach Taken to Care Home Residents During the Covid-19 Pandemic’ (2023) 31(1) Medical Law Review 25–46
Abstract: This article discusses the human rights of residents in care homes in England who were affected by restrictions that were imposed during the first months of the COVID-19 pandemic in order to safeguard health and life at a time of public health emergency. It focuses on the potentially adversarial relationship between the need to protect the health of these residents and the possible adverse interferences with their human rights in the initial phase of the pandemic. The scope and application of these rights to the healthcare context is not straightforward due to the exigencies of the pandemic. Consideration is given to whether their rights, as protected by the European Convention on Human Rights (ECHR) and the United Nations Convention on the Rights of Persons with Disabilities (CRPD) are vindicated or breached by the actions taken in the context of the COVID-19 pandemic. The article questions whether the restrictions that were applied were justified, given the limitations that exist within some ECHR Articles. It deliberates upon what can be done to ensure that relevant bodies and care homes, themselves, are better enabled to respond to a public health emergency in an individualistic, rights-based manner, based upon both principlism and pragmatism.

Papke, David Ray, ‘The Stage Was Set for Disaster: For-Profit Nursing Homes, Federal Law, and COVID-19’ (Marquette Law School Legal Studies Paper No 21–06, 17 June 2021)
Abstract: For-profit nursing homes came to dominate nursing-home care in the United States in the second half of the twentieth century, especially after the passage of Medicare and Medicaid legislation in the 1960s. However, for-profit nursing homes on average provided inferior care when compared to state-run and nonprofit nursing homes. Congress attempted to address the problems in nursing homes in the final decades of the twentieth century, but massive statutes and abundant regulations served mostly to legitimize the problematic for-profit nursing home. COVID-19 then tragically underscored the flaws in the legally sanctioned for-profit nursing home as a major socio-legal institution in American life.

Sharma, Arti and JK Mittal, ‘Covid-19: A Study of Its Impact with Special Reference to Medico- Legal Rights of Senior Citizens’ (2021) 18(4) PalArch’s Journal of Archaeology of Egypt / Egyptology 1414–1423
Abstract: The Research topic under the captioned title is of essence. The Epidemic in the form of Covid-19 escaping from Chinese Laboratory in Vuyan engulfed most parts of the globe. The Medical Experts consider among others the older people vulnerable to the virus. The Covid-19 virus has proved itself to survive in all the temperatures casing doubt to natural emergence on one side and obligation of China as a State under International Law responsible for Un-natural use of Lab & Resources in germinating the virus, its escape causing loss of life irrespective of territorial areas and/or race or religion. The Expert opinion world over is consensus on threat to senior citizens, in the process, curtailing their freedom by confining them within four walls of residential enclosures. Not only the right to freedom and other rights of Senior citizens is under challenge but even right to medical care and due cremation in case of death is on denial mode. In Socio-Theological Society like India these rights are indispensable. The senior citizens have Constitutional protection generally among others in Articles 21 of the Constitution of India read specifically with other Article 41 of the constitution requires the state to give public assistance to elderly people. Besides, the statutory protection in State Legislations like Maintenance and Welfare of Parents and Senior Citizens, Act 2007. The Covid-19 has put senior citizens to risk and aggravated their health hazards including the right to live. The Country responsible seems unconcerned, behaving like rouge, while the country of residence has no cure known for the epidemic. Senior citizen is on test to survive or suffer even in presence of national laws and global conventions/declarations. Accordingly, the Research topic is deliberated by adopting doctrinal methodology and using both the primary and secondary source of data for analysis and in arriving at conclusions and suggestions.

Sklar, Tara, ‘Implementation and Enforcement of Quality and Safety in Long Term Care’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 143–147
Abstract: Long before the new coronavirus struck, nursing homes and other long-term care facilities have had declining quality care that coincides with inadequate staffing and rampant infections. These prepandemic conditions increased the vulnerability of these facilities to an infectious disease outbreak. As the elderly death toll rises into the tens of thousands, an overdue national discussion on how to prioritize long-term care in the US has emerged, revealing an opportunity to better link quality care metrics with sufficient reimbursement and meaningful regulatory oversight. However, the opposite approach has also surfaced, which would allow the status quo to continue and may erode the minimum standards of care that currently exist. This concerning trend is on the rise with efforts to relax the Centers for Medicare and Medicaid Services (CMS) regulatory authority over nursing homes by waiving requirements and reducing enforcement penalties. In addition, states are passing measures to limit liability exposure for nursing homes during COVID-19 and similar protections are under consideration at the federal level, even as infection rates climb and there is no evidence of frivolous lawsuits. While political will is uncertain, public outcry is ready for legislative reform that will lead to better later-in-life care. The stakes have never been higher — act now and pass laws that connect funding with regulation to support quality care in nursing homes during and after the COVID-19 pandemic — or continue to condone practices that allow infection to spread and take many lives before their time.

Tarrant, Alison and Lydia Hayes, ‘Exposure to Coronavirus in Adult Social Care Settings: A Matter of Safety or Safeguarding?’ [2021] (2) Public Law 223–232
Abstract: During the first stage of the coronavirus pandemic, the UK saw thousands of deaths in care homes, either from COVID-19 or from causes connected to it. A far higher proportion of people in care homes died than in the broader community. It is clearly essential to find out how this happened and what went wrong. Investigations and inquiries have already begun into the handling of COVID-19 in the UK; and there is clearly an urgent practical need to understand how to respond better to coronavirus-which is likely to be with us for some time-and to learn lessons for the future.

Wilkinson, Dominic JC, ‘Frailty Triage: Is Rationing Intensive Medical Treatment on the Grounds of Frailty Ethical?’ (2021) 21(11) American Journal of Bioethics 48–63
Abstract: In early 2020, a number of countries developed and published intensive care triage guidelines for the pandemic. Several of those guidelines, especially in the UK, encouraged the explicit assessment of clinical frailty as part of triage. Frailty is relevant to resource allocation in at least three separate ways, through its impact on probability of survival, longevity and quality of life (though not a fourth—length of intensive care stay). I review and reject claims that frailty-based triage would represent unjust discrimination on the grounds of age or disability. I outline three important steps to improve the ethical incorporation of frailty into triage. Triage criteria (ie frailty) should be assessed consistently in all patients referred to the intensive care unit. Guidelines must make explicit the ethical basis for the triage decision. This can then be applied, using the concept of triage equivalence, to other (non-frail) patients referred to intensive care.

Wyllie, Aaron, ‘The Human Rights of Older People during Covid-19: Social Wellbeing and Access to Care and Support for Older People in the United Kingdom’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 197–203
Abstract: To date, the vast majority of Covid-19 deaths have been those over the age of 65. The vulnerability of older people to the impacts of Covid-19 were recognised early and have featured prominently in policy discussions and decision-making of governments around the world. While the risks posed by Covid-19 to the health and wellbeing of older people are significant, the impact of policies introduced in response to the public health crisis raise several critical human rights issues. This article addresses two broad areas of concern regarding the rights of older people which have emerged in the United Kingdom as a consequence of Covid-19. Firstly, this article discusses the risks posed by the suspension of several Local Authority duties under the Care Act, and proposes amendments aimed at ensuring the rights of people in need of care and support are maintained during this period. Secondly, the social wellbeing of older people is discussed with reference to Article 8 of the European Convention on Human Rights, which establishes the right to respect for private and family life. For older adults living the in the community, it is argued that Article 8 imposes a positive obligation on Local Authorities to identify and support those older adults experiencing significant isolation or loneliness as a consequence of measures introduced in response Covid-19. In care home environments, Article 8 is considered with reference to the suspension of care home visitation rights, which is argued to be a disproportional and overly restrictive measure which imperils the rights and social wellbeing of older people.

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