身心障礙者權利公約與年長者權利保障

The UN Convention on the Rights of Persons with Disabilities and Protecting the Human Rights of Older Persons

隨著全球人口壽命普遍延長，高齡化社會已成世界各國共同面對的問題，因老化失能而成為身心障礙者，已是社會大多數人自然而然共同經歷的生命經驗。然而長者常因身心功能退化，日常生活決策逐漸為家人所取代。當其失能時，常因欠缺充足照顧人力與經濟能力，未能被有尊嚴地對待，甚至基本生存條件都無法獲得滿足，機構中的年長者更經常面臨孤立處境與暴力環境，形成隱形的人權議題。
聯合國身心障礙者權利公約確認身心障礙者個人自主與自立之重要性，保障其平等參與社會之機會，是聯合國各項國際人權公約中，最能回應失能長者所遭遇之歧視與社會排除，尤其是第12條關於法律能力獲得平等承認與支持性決策機制，廣泛牽涉年長者自主決定其財產管理、醫療處置、生活方式、社會參與及其他各方面機會，對於年長者權利而言至為關鍵。但身心障礙者權利公約保障對象並不及於無身心障礙情形之年長者，且失能年長者所面臨之人權議題，與分佈在各年齡層身心障礙者所面臨者未必完全一致，因此針對年長者之人權處境量身定作一份人權公約，確有其必要。
身心障礙者權利公約可以提供研擬老人權利內涵時不可退縮之人權底線，以挑戰老人照顧機構化、怠忽社區支持服務之政策。不過，適用於失能長者與一般身心障礙者之機構化與去機構化概念有何相同或差異之處，仍有待分析與討論。

The world population is living longer. The aging society has been a worldwide issue. Becoming disabled due to aging has also been a common life experience of the most part of population. The elderly, however, lose gradually their autonomy in daily life due to the degeneration of physical and cognitive functioning. Decisions are made by their family, but not by themselves. When they become disabled, owing to lack of sufficient caregivers and finance, they are often treated undignifiedly, even the basic living conditions can’t be satisfied; the elderly people living in residential institutions of long-term care have often to endure isolation and violence. The phenomena mentioned above are invisible human rights issues of older persons.
The UN Convention on the Rights of Persons with Disabilities (CRPD) recognizes the importance for persons with disabilities of their individual autonomy and independence, and protects their equal opportunity of participating the society. Among the UN human rights conventions, the CRPD provides the most comprehensive protection for older persons with age-related disabilities against discrimination and social exclusion, in particular Art. 12 of CRPD entitled“equal recognition before the law”through supportive decision-making mechanism is most significant to the rights of elderly people, because it is related to their self-determination of property disposition, medical treatment, life style, social participation and other opportunities in all aspects of life. However, the guarantees of CRPD can’t be applied to older persons without disabilities. Furthermore, human rights issues based on the perspectives of elderly people are not identical to those based on the perspectives of persons with disabilities in different age groups. With these aspects a tailored human rights convention for older persons is indeed needed.
The CRPD can provide an irreducible baseline for which to formulate further guarantees that apply to older persons with and without disabilities, a basis to challenge the institutionalization policies of elderly people rather than providing supports in the community. But it still needs to analyze and clarify the conceptual commonalities and differences of institutionalization and deinstitutionalization applied to elderly people with disabilities and persons with disabilities in general.