Towards Human Rights in Residential Care for Older Persons

International Perspectives

Helen Meenan, Nicola Rees, Israel Doron, Helen Meenan, Nicola Rees, Israel Doron

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317910725
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

People are leading significantly longer lives than previous generations did, and the proportion of older people in the population is growing. Residential care for older people will become increasingly necessary as our society ages and, we will require more of it. At this moment in time, the rights of older people receive attention at international and regional levels, with the United Nations, the Organization of American States and the African Union exploring the possibility of establishing new conventions for the rights of older persons.

This book explores the rights of older people and their quality of care once they are living in a care home, and considers how we can commence the journey towards a human rights framework to ensure decent and dignified care for older people. The book takes a comparative approach to present and future challenges facing the care home sector for older people in Africa (Kenya), the Arab world (Egypt), Australia, China, England, Israel, Japan and the USA. An international panel of experts have contributed chapters, identifying how their particular society cares for its older and oldest people, the extent to which demographic and economic change has placed their system under pressure and the role that residential elder care homes play in their culture. The book also explores the extent to which constitutional or other rights form a foundation to the regulatory and legislative structures to residential elder care and it examines the important concept of dignity.

As a multi-regional study of the care of older person from a human rights perspective, this book will be of excellent use and interest, in particular to students and researchers of family and welfare law, long-term care, social policy, social work, human rights and elder law.

1
Human rights and residential care for older adults in sub-Saharan Africa

Case study of Kenya

Isabella Aboderin, Cecilia Mbaka, Carolyne Egesa, Hilda Akinyi Owii

Background and aims of the chapter

Debate on issues of ageing in sub-Saharan Africa (SSA) has intensified over the past decade (Aboderin, 2013). As part of the discourse, a nascent research focus on long-term care for dependent older persons has emerged in recent years (Aboderin & Hoffman, 2013). The interest in this area is fuelled, on the one hand, by a growing awareness of the considerable prevalence of functional impairments in SSA’s older populations and, on the other hand, by long-standing concerns about impacts of rapid sociocultural and economic change on customary family care systems, which – in the absence of comprehensive formal services – provide the bulk of long-term care across most of SSA (Aboderin & Beard, 2014). One exception is South Africa, which has a long-established history of residential care, beginning under apartheid rule (Aboderin & Hoffman, 2013). For the most part, research on long-term care in SSA has, therefore, centred on ‘informal’ support provision by family members. A specific focus has been on examining the structure and content of family care arrangements and, to a lesser extent, the adequacy of care provided and its impacts on caregiver and recipient (Akinyemi, Adepoju & Ogunbameru, 2007; Ba-Gning, 2012; De Klerk, 2013; Gureje, Kola & Afolabi, 2006; Obrist, 2012; Odiambo, 2012; van der Geest & Frimpong-Nnuroh, 2013; van Eeuwijk, 2012, 2013; Aboderin & Hoffman, 2011). Within this context, a handful of small-scale empirical studies have begun to illuminate experiences of residential care in SSA, exploring contexts and underpinnings of, as well as pathways and attitudes to, its use (Pype, 2013; van Eeuwijk, 2013). At the research-practice interface, several studies in South Africa have investigated approaches for enhancing the quality of formal care provision (Stroebel, 2012; Brand, 2012; Du Toit, 2012; Clouston, 2012; Roos, 2012; Van Zyl, 2012).

In this chapter we aim to extend current perspectives on residential care in SSA by offering a situational analysis of such service provision and its human rights implications in Kenya, and reflecting on broader consequences for action in SSA and beyond. We do so by drawing on a critical appraisal of relevant regional and national policy, legal and human rights frameworks and debates, as well as on a narrative review of the small body of existing empirical evidence on contexts and realities of residential care in Kenya and other SSA countries. Following (i) a brief description of the geographic and socio-economic profile of Kenya, subsequent sections discuss (ii) key characteristics of Kenya’s older population, (iii) Government responses to ageing in Kenya, (iv) the evolving policy discourse and frameworks on long-term care, (v) relevant national and regional legal and human rights instruments, (vi) emerging realities of long-term care in Kenya, and (vii) future perspectives for action on residential care in the country. The chapter concludes with reflections on possible implications of the developments in Kenya for action in other SSA States and globally.

Kenya – country profile

Home to close to 44 million people, Kenya is a multicultural country in Eastern Africa with a landmass of 582,642 km². It is bordered by Ethiopia, South Sudan, and Somalia in the North; Uganda and Tanzania in the West, and the Indian Ocean in the South East. Kenya’s population comprises 42 distinct ethnic groups, and a spectrum of faiths. Approximately 71% of Kenyans are Christian (48% Protestant, 23% Catholic), 6% are Muslims and 23% are adherents of indigenous religions (Kenya National Bureau of Statistics, 2010). The country’s population is predominantly rural, engaged in agriculture, with only 25% living in urban areas (United Nations Population Division, 2014a). With a per capita Gross National Income (GNI) of $870 (compared, for example, to $7,460 in South Africa and $35,800 in the UK) Kenya is classified as a low-income country (World Bank, 2014). Despite recording substantial economic growth over the past decade, income inequality is rising and poverty levels remain substantial. The most recent available figures suggest that 43% of the population live in extreme poverty, under $1.25 per day (World Bank, 2014).

Kenya’s older population

Kenya’s population is predominantly young, with over 60% aged below 25 years. However, the absolute number of older persons aged 60 years and above in the country is already considerable, and is projected to rise sharply over coming decades from 2.1 million today to 9.2 million by 2050. In the same time frame, the proportion of older people in the total population is set to double from 4.5% to 9.5% (United Nations Population Division, 2014b). Available national-level data suggests that a large majority (82%) of older Kenyans reside in rural areas, and that most, in both rural and urban settings, live in large households with five or more members. Only about 7% live alone. Analysis of per capita adult-equivalent household expenditure,¹ indicates that more than half (53%) of older persons in Kenya live in ‘absolute’ poverty and a quarter (25.6%) in hardcore poverty, with poverty rates significantly higher among rural dwellers. Evidence on older Kenyans’ health status shows close to a third to have functional limitations and at least a quarter to suffer from chronic illness (Aboderin & Kizito, 2010).

Kenya – emerging responses to ageing

Prompted by a mounting awareness of the rapid growth in, and some of the profound challenges faced by its older population, Kenya – as one of a small but rising number of SSA States – has taken a series of substantial steps to respond to issues of ageing. In 2009 the country adopted a National Policy on Older Persons and Ageing (NPOPA) (Republic of Kenya, 2014a) in line with broad parameters set by the United Nations Madrid International Plan of Action on Ageing (MIPAA) (UN, 2002) and the African Union (AU) Policy Framework and Plan of Action on Ageing (AU Plan) (AU/HelpAge, 2003). Between 2012 and 2014, the NPOPA was reviewed to ensure concurrence with Kenya’s new Constitution (2010) (Kenya National Council for Law Reporting, 2010). In its revised version, the policy now provides an overall direction for the future development of Government action on ageing. Its overarching goal is to foster an environment that empowers and facilitates older persons’ participation in society and ensures their rights, freedoms and dignity. To this end, the NPOPA specifies key policy objectives and intended responses across ten thematic areas: older persons and the law; poverty and sustainable livelihood; health, HIV and AIDS; family, community and culture; food security and nutrition; infrastructure; education, training and ICT; employment and income security; social protection and services; and cross-cutting issues (Republic of Kenya, 2014a). In parallel to forging the National Policy, Kenya instituted a pilot cash transfer scheme for vulnerable older persons in 2006, as part of its overarching development strategy ‘Vision 2030’. The programme has since been expanded to cover 164,000 older beneficiaries (Kenya Ministry of Labour, Social Security and Services, 2014).

In order to coordinate and further promote action on ageing across Government sectors, Kenya established in 2013 a ‘Division on Older Persons and Social Welfare’ (DOPSW) within the Department of Social Development in the Ministry of Labour, Social Security and Services. As part of its remit, DOPSW has begun to address questions of long-term care, seeking to engage with, and shape an emergent policy discourse on long-term, specifically residential, care in the country.

Long-term care: policy discourse and frameworks

The debate on long-term care has evolved over the past decade and, in recent years, has become characterised by a duality of views.

Rejection of residential care

On the one hand, a first perspective centres on a clear rejection of residential care. Taken as definitive in initial stages of the debate, this view is enshrined in early policy frameworks such as the AU Plan (2003), and exhorts a need to cement the role of the family in long-term care provision. Thus, while the Plan recognises that ‘traditional’ family care is ‘under threat’, it urges Member States to:

• Enact legal provisions that promote and strengthen the role of family and community in the care of older people
• Learn from traditional family values and norms to inform legislation about … care of older persons
• Discourage the institutionalization of older people and retain the cultural respect for older people

(AU/Help Age, 2003 p. 17)

Such opposition to residential care remains dominant in current popular and political discourse, which sees institutional service models as ‘un-African’ and, more specifically, as contrary to Kenyan cultural norms. This line of reasoning is exemplified in excerpts of a Kenya Senate debate in March 2014, which discussed – and subsequently rejected – a Member’s proposal to ‘initiate small small-scale residential homes in each county to enable [older people] access and necessary care and live dignified lives’:

Traditionally or according to our society, our [elderly] people; men and women, would want to be supported while at their homes and not in a bondage house where they will think that they are being thrown away by their families. Traditionally, no one would want to leave their families to go and be caged in a place way from their home. Therefore I will not support any such idea.

(Parliament of Kenya, Senate Hansard, 20 March 2014 p. 27)

We need to delete the idea of establishing small-scale residential homes … That is un-African and it goes against our culture. I cannot imagine myself sending away my old mother to a home to be taken care of. I cannot imagine that. If we want to help these elderly people, let us help them while they are in their own homes. We should not send them to institutional homes. The idea of homes has worked in the developed world and European countries and even in the USA but I do not think we have reached that stage as a country. It is a taboo in … our cultures to send our parents away from home.

(Parliament of Kenya, Senate Hansard, 20 March 2014 p. 28)

As the last quotes expresses, and as Aboderin and Hoffman (2013) argue, the objections to institutional care should not be interpreted as reflecting a desire to limit public expenditure. Rather they reflect an assertion of African values and approaches vis-à-vis ‘Western’ models. In a broader sense, then, the ‘centrality of the family’ perspective must be understood as part of a wider critique of, and resistance to what have been seen as ‘Africa-inappropriate’ development modes imposed on the continent by European and American donor countries (Aboderin & Ferreira, 2008; Okumu, 2002).

Residential care as a necessary complement

On the other hand, a second more recently emerging perspective marks a clear departure from a blanket objection to institutional care. While upholding the importance of family support, this view posits a need to accept and engage with residential service provision as a necessary complement, or alternative, to family care. Expressed in the rejected Senate proposal mentioned above, this notion is captured most prominently in Kenya’s revised National Policy on Older Persons and Ageing (Republic of Kenya, 2014a). Thus, the policy stipulates both (i) a need to ‘strengthen … family and community support systems’ and to ‘promote and protect the family as a fundamental unit of the society, to provide care and assistance to Older Persons’ (p. 10, sections 2.4.2 and 2.4.3i–ii) as well as (ii) the Government’s intention to ‘establish institutions to take care of Older Persons who are neglected, homeless and with special needs’ and to ‘regulate the establishment and the operations of institutions taking care of Older Persons’ (p. 10. section 2.4.3viii–ix).

Legal and human rights frameworks

Crucially, a responsibility of Kenya’s and other African Governments to embrace, and develop regulatory mechanisms for, residential care is also enshrined in a key extant human rights framework – namely the African Union Protocol on the Rights of Older People in Africa, which was passed by African Ministers of Social Development and is due to be adopted in 2015 (African Union, 2014). In its articles 11 and 12, the Protocol commits Member States to both ‘(i) Identify, promote and strengthen traditional support systems … to enhance the ability of families and communities to care for older family members but also to (ii) enact or review legislation that ensures that residential care is optional for older persons’ and ‘Ensure older persons in residential care facilities are provided with care that meets national minimum standards’ (African Union, 2014).

Realities of long-term care: Organic expansion and human rights concerns

The emergent emphasis on a need for State regulation signals Governments’ increased appreciation of, and readiness to address, two realities of long-term care in Kenya and SSA, broadly.

Organic expansion

The first is a slow, but significant ‘organic’ growth in the presence and use of formal, including institutional, care services for dependent older adults over the past few decades (Aboderin & Hoffman, 2013). As Kenya’s National Policy on Older Persons and Ageing notes:

The effectiveness of the traditional family and community structures to provide in-built support and caring for Older Persons is increasingly under pressure. For instance, the emerging trend is for families to take older persons to institutions for elderly care. These institutions are not regulated by the state to ensure that they are Older Persons friendly.

(Republic of Kenya, 2014a p. 9)

An initial picture of extant formal service provision in Kenya was generated by a unique mapping exercise undertaken by DOPSW in 2014 (Republic of Kenya, 2014b). The initiative was motivated by accumulating anecdotal evidence, gathered by the Division in the course of its delivery of the older persons’ cash transfer programme, which highlighted both (i) a frequent inadequacy of informal family care provision and (ii) the presence of formal providers in several counties in Kenya.

The survey revealed the existence of at least 18 residential care facilities, a majority of which were founded pre-1990. Three have been established post-2000...