Only human rights-based inquiry will properly answer questions about treatment of elderly during Covid

Earlier this year Professor Martin Cormican, a former Nphet member and HSE lead on Infection and Control, broke ranks to criticise some of the arguably excessive measures the state adopted during the pandemic, especially the complete ban on all nursing home visits for a protracted period. In his view, the measures introduced were disproportionate and limited human rights and civil liberties.

This issue about nursing home residents’ rights, especially their right to see a family member, is important. It is especially so in the light of the broad-based Government inquiry soon to get under way into Covid-19. A commitment to an inquiry was made in early January by the Taoiseach, but it is unclear what form the statutory inquiry will take and how and whether residents, families and staff from residential care facilities who believe they experienced injustices will be involved.

What is clear however is that a human rights-based approach is unlikely to be adopted and the Government has made no promise to ensure that a rights framework will be used in its analysis. This is in direct contrast to the Scottish Covid-19 Inquiry, where their terms of reference make explicit reference to a human rights-based approach.

There is growing support for a dedicated human rights-based inquiry to be conducted into the experience of people living in residential care settings during Covid-19, their families and staff. In February a Coalition of human rights and care organisations wrote to the Irish Human Rights and Equality Commission (IHREC) asking it to exercise it’s statutory power to hold such an inquiry.

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The letter was cosigned by Care Champions, the Irish Centre for Human Rights, The Irish Association of Social Workers, Age Action Ireland, the Alzheimer Society of Ireland and other advocacy groups.

They pointed out that the IHREC are uniquely positioned to use its statutory powers to conduct such an inquiry. The letter details the type of human rights that were allegedly breached in nursing homes during the pandemic. It mentions that since May 2020 repeated references (over 60) have been made by Oireachtas TDs and Senators for the need for a dedicated public inquiry into nursing homes. The letter stipulates that a human rights-based public inquiry would not supplant the more broad-scale statutory inquiry envisaged by the Government, but would have added value. It would commence sooner and would ultimately inform the methods of a statutory public inquiry feeding in information and findings.

One of the many human rights highlighted in this letter is the right to family visits – as reflected in Article 8 of the European Convention on Human Rights. Reference is made to the fact that in some cases during the pandemic, visiting restrictions were cruel, especially end-of-life visits, and impractical due to architectural design. Some nursing homes did not allow window visits and virtual visits were not always facilitated. The timing and length of time for which visitor restrictions were imposed was also highlighted.

The value of family visits for nursing home residents cannot be over-estimated. Seeing a family member or care partner is a vital component of most residents’ everyday life. When an older person moves into a nursing home, relatives usually take on a support role that can include hands-on assistance with the activity of daily living, overseeing care, providing socio-emotional support and advocating for those who are extremely vulnerable and can no longer self-advocate. Since the pandemic a number of research papers have been published highlighting the adverse effects confined isolation has had on nursing home residents’ physical and mental wellbeing.

If the IHREC does proceed with a human right-based inquiry, critical questions must be asked: was the ban on nursing home visits necessary, proportional, constitutional and in accordance with the law? In the Netherlands, eight weeks after the lockdown of nursing homes for visitors, the government had already set up a national pilot to lift the ban. And given that about three quarters of all nursing home residents have dementia and therefore may be unable to participate meaningfully in window visits, how can their complex needs be met during pandemic times? What constitutes compassionate grounds for visits and who determines what this means? Does having severe dementia and no longer being able to recognise a relative by name justify having no visitors? I would hope not.

The advantage of going down the dedicated human-rights based route is that people directly affected will be placed centre stage and will have their voices heard. As well as that, lessons will be learned as to where rights were breached and recommendations will be made about how such rights can be protected in the future. A dedicated inquiry will also ensure findings and recommendations are widely distributed, and, once implemented, monitored by the IHREC.

The downside is that the dedicated inquiry might delay the already long-awaited more general statutory inquiry, as the number of people affected are huge and the breadth and complexity of the issues experienced are vast. A further challenge might involve the protection of the anonymity of those aggrieved and bereaved given the small and interconnected country we live in.

The IHREC replied to the coalition’s letter on March 31st and the matter is now under consideration. Time is running out as the government’s scoping exercise for the broad-scale statutory inquiry is supposedly under way and that inquiry is due to commence midyear.

No public inquiry will return to their families the precious lives of those loved ones sadly lost, and this should never be a blame-and-shame game., Hopefully it will provide answers to many of the burning questions family members, staff and residents continue to have.

Suzanne Cahill is an Adjunct Professor of Social Work and Social Policy at Trinity College