Yesterday saw the publication of sad statistics illustrating the level of hatred in Scotland. We read in the Crown Office data that all categories of hate crime in Scotland are increasing. Racial hatred is still the most common with over 3,038 charges in 2019-20. There was also an increase of 24% on the previous 12 months for incidents aggravated by religious hatred and sexual orientation. Disability aggravated charges showed an increase of 29%. These are shameful statistics. They paint a depressing picture of a society increasingly comfortable with intolerance, at home with bigotry and welcoming of discrimination.

In April the Scottish Government launched a Bill which includes the consideration of extending hate legislation to include age. I have already stated elsewhere how critically important it is that age receives equal protection.

Whether we accept it or not age discrimination is part and parcel of Scottish society. It is the wallpaper against which so much social discourse takes place and its acceptance has become almost a cultural norm whether through being the source of comedic jokes or the automatic assumption that older people’s services should be resourced less than others.

I am reminded of all this as I note that on Tuesday 15^th June we will recognise World Elder Abuse Day. This annual United Nations observance day highlights the extent to which cultural, systemic and political abuse against older people is an increasing and serious problem across the world and has a profound impact on the health and wellbeing of older people.  As people grow older they become more at risk and vulnerable to abuse (and sadly most of this is at the hands of family members) because they are unable to defend themselves or to get help as a result of infirmity and fear. But the abuse of the old is also at the hands of the systems and policies, the governments and practices under which they live. This year there is a particular focus on the human rights of older people.

Reflecting on harms against older people, whether consciously as a result of hatred or ‘collaterally’ as a result of pervasive age discrimination, is an important challenge during this Covbid19 pandemic.

I have to confess to a personal sense of disappointment at the extent to which there has been relatively little consideration of the human rights of older people in our collective national, political and media responses to Coronavirus. There have been exceptions. The Equality and Human Rights Commission have suggested the need for an Inquiry into the discharge policies into care homes in the UK and the Welsh Older People’s Commissioner has been critical of a whole range of potential human rights abuses around testing and support for care homes. In Scotland, the Scottish Human Rights Commission has been vocal in its critique of the Chief Medical Officer’s early Ethical Framework for Decision Making.

So, what does it look like if we hold up a human rights mirror to what has happened over the last few months and what is now occurring?

The perniciousness of this virus is the invisible way in which it has targeted our older citizens. It is they who in Scotland have borne the brunt of the trauma and death with over 76% of those dying in Scotland, regardless of location, being aged 75 and older. It is our most frail and vulnerable, the population of our care homes and mainly those with dementia, who have been especially hit by the disease and who will doubtless continue to be most vulnerable as the pandemic continues. Have we upheld their human rights?

I have always thought that our international human rights Charters and Conventions are a barometer of the way in which we can judge ourselves as a society. Part of the reason for my enthusiasm is that human rights practice and jurisprudence appreciates that we do not live in a black and white world, but that any decision and action is usually the result of layers of motives and consideration, policy and practice. The world is complex and responding to an issue in one way means that your actions may result in many unintended consequences. The language of human rights is about proportionality – is what you are intending to do a reasonable and proportionate action or is it too much or too little. Human rights are about recognising that some of our rights have to be limited or curtailed – within reason – in order for the greater aim to be achieved. Human rights are about collectively agreeing what are the legitimate aims of any action and whether what you plan to do is a reasonable action in achieving those agreed objectives or whether it is misplaced and misguided.

Although there are a good number of Articles within our current Human Rights legal protections, perhaps the ones that most resonate in the current pandemic are

Article 2 – the right to life; article 3 – the right not to be treated in a manner which is inhumane, degrading and equivalent to torture, and Article 8 the right to family life, privacy and association, to psychological and physical integrity – all my paraphrasing I should add.

So, against these three core human rights Articles in our response to Coronavirus have we in Scotland acted appropriately and proportionately to achieve the legitimate aim of preserving life or have we mis-stepped?

The right to life is a human right which no Government or body can seek to limit. In the pandemic it was the number one priority – to save as many lives as possible and protect as many people as possible. Clearly we need to consider whether actions which sought to prioritise the acute NHS were undertaken at the cost of the social care sector. A hard question but a necessary one especially when the global evidence showed that social care supports especially care homes were the primary weakness in the support of the old and most vulnerable. Were our actions in Scotland in discharging patients from hospital into care homes proportionate and reasonable or risky and utilitarian? Does the data show that there was equal opportunity to preserve life given to residents in care homes through their access to acute treatment and care or was there a presumptive bias against admitting residents into hospitals? Is the continuous lockdown of older people in isolation within care homes enabling of the fulfilment of the right to life or does it put at risk that right through psychological and physiological harms being given less attention than the desire for infection control and prevention?

Article 3 is another human rights article against which no State or body can seek to take actions which limits the right not to be treated in a manner which is inhumane and degrading. How have we done on this front? Is it justifiable to confine one whole section of the population in a manner which is more restrictive than another, ostensibly for their protection but which whilst reasonable for a defined early period of time, becomes disproportionate, unreasonable and potentially inhumane when we are talking about 14 weeks of such restriction?

Article 8 is about the protection of interaction and relationship, the right to privacy and family life, to association and belonging. Clearly we have all of us as citizens had to endure the restriction of our normal engagement with family and friends. Such restrictions have been judged to have been appropriate in order to achieve the legitimate aim of protection against the virus and the devastating impacts that failing to protect would have resulted in. But have we treated some in a manner which is disproportionate and unreasonable? Are we now at risk of failing our older citizens and their human rights by continuing to restrict their ability to relate and interact, to have visitors and company? Is it epidemiologically reasonable to have calculated the risk to be so high that we have failed to recognise the wastage of life as a result of loss of relationship and encounter? Have the legitimate initial aims of Infection Prevention and Control now become imbalanced and there is as I have contended a greater risk which is loss of life through physiological, emotional and psychological deterioration and loss? Is the removing of autonomy, individual choice and ability to act, associate and have discourse a restriction too far? Have we presumptively failed individual rights by collectively treating all residents in a care home or all individuals shielding in their own home or a care home as equivalent to the other?

I think there are a significant number of human rights questions which need to be aired and heard in any consideration of the response to the pandemic. There has been much chatter and talk about Inquiries and reviews of the actions of both the UK and Scottish Government, and of health and care providers, in response to the pandemic. All of these will happen. But I also hope that there will be a robust and serious human rights Inquiry into the pandemic and specifically on the experience of older people at this time, in care homes and in the community.

Part of such a review could utilise the human rights PANEL model. Has there been real Participation and involvement of older people in decisions made about and for them? Have actions been sufficient to hold Accountable all those responsible for the care and support of older citizens? Have actions of intervention during Covid19 been Non-discrimination in nature or did they serve to perpetuate and further embed discrimination?  Did our response to Covid19 Empower individuals to achieve and retain their human rights or did we disempower and limit the ability of citizens to fulfil their human rights? Lastly did we have at all times undertake appropriate actions that upheld human rights obligations and Law?

We delude ourselves as a nation and as individual citizens if we fail to recognise that we live in an age discriminatory society in the UK. This was true before Covid19 and is unlikely to have changed in our response to the pandemic. Only witness some of the narrative we have seen this week which has been desperate to re-hash the views that Coronavirus was after all only something which affects ‘older people’ and that a ‘Boomer harvest’ was not entirely inappropriate.

We owe it to all those who have suffered and died from the pandemic to use the maturity of a human rights analysis to understand whether our actions, for the best motivations, were ones which we should repeat or ones from which we require to repent.

Donald Macaskill