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Elder Law

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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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