Guest Columnist Legal Articles

CARE FOR ELDERLY IN NIGERIA: THE NEED FOR THE INTERVENTION OF LAW

Abstract
The current situation of old people in Nigeria solicits for swift and prompt intervention of law. Many of the aged people in Nigeria are exposed to serious discrimination and depression and suffer inaccessibility to health services, separation and abandonment. Aging being a natural phenomenon rather than a (self-inflicted) predicament, prompt attention from Government is required for establishment of a specific Elder Law in Nigeria to cater for the wellbeing of the aged.

This treatise is divided into six parts. The introductory part defines and explains Elder Care and what it is in Nigeria presently. The second part touches on the scope of Elder Law; thirdly, Elder Law in developed countries; fourthly, current challenges in respect of Elder Care and Elder Law in Nigeria; and fifthly, the best approach to moving forward.

Introduction
Access to education and recent improvements in the medical field across the globe, have not only contributed to global development but has also improved human lifespan. Nigeria is no exception. Morbidity rate has been minimised through discovery of vaccines that reduce and cure incessant outbreaks of life-taking illnesses.

Ageing is a natural phenomenon. Proper care and attention need to be given to persons who have been kind to by life to experience old age. This is because ageing causes people to be less active, frailer, and more exposed to risks of contracting a disease, leading to prejudice or discrimination against the elderly, social isolation, and, sometimes, abandonment{1}. The increase in the number of elderly people in Nigeria lacks attention from the government and this indeed cries for urgent consideration.

The aged – elderly – are those who are undergoing depreciation physiologically, mentally and as a result, incapable of doing most chores without help or assistance{2}. Ageing is a process of becoming elderly, usually from the age of 60 years upward.{3} Elderly care, or simply Eldercare, is the fulfilment of the special needs and requirements that are unique to senior citizens{4}. This broad term encompasses such services as assisted living, adult day care, long term care, nursing homes, hospice care, and home care{5}. Elder care comes in to cater for the depreciation in the life of aged people and to stop or check elder abuse.

Africans generally are very respectful and responsible people who took care of their elderly irrespective of whether they were related biologically or not and this is as a result of their culture as well as the age-long tradition which encourages participatory activity such as care-giving within the family and community{6}. In Nigeria, taking care of elders or parents is seen as one of the ways of receiving maximum blessing from God. There is the general belief that prayers from parents or elders are potent.

On the other hand, where parents are disregarded, it is also believed that curses from such parents would have effect on those who disregarded them. However, the process of modernization and urbanization is beginning to erode the traditional social welfare system of Africa and the extended family.{7}The Nigeria government on the other hand has caused so much to this heartache. Even though, the Nigeria pension scheme demands restructuring, many who worked with the government and are entitled to gratuity are either denied the right or not given in time. Consequent to this, many of them die within a short time after retirement. Furthermore, the abuse elderly people are subjected to in the society is another concern. Many aged people are tagged with names like witches and wizards, particularly where the aged woman experiences several children’s death. She becomes the mockery of the society, beaten, shamed and isolated with no one to care for her. Many in this shame and injury die.

The rate at which the Nigeria elderly population increases and their vulnerability to abuses, discrimination, homelessness, suffering of various kinds, solicit for the intervention of the government to invoke an Elder Law in this country.

The Areas Covered by Elder Law
Elder Law, like other areas of law encompasses a wide range of issues and it cuts across all matters that directly or indirectly affect the elderly in the society. It is aimed at ensuring the provision of social services such as income, security, healthcare, housing, and legal assistance in order to positively influence the well-being and health of the elderly in our communities (as it is in most developed countries). It therefore tries to resolve all problems that are faced at old age which are inevitable as earlier elucidated above.

The Position of Elder Law in Developed Countries
In the last two decades, Elder Law has developed into a known and recognized field of expertise and specialization within the legal discipline{8}. Elder Law is defined as the dealing with the legal issues affecting older and vulnerable people and their families, carers, trustees and advisers{9}. In the United States, Elder Law has been defined in a short form as being the legal practice of counselling and representing older persons and their representatives about the legal aspects of health and long term care planning, public benefits, surrogate decision making, older persons legal capacity, the conservation, disposition and administration of older person’s estates and the implementation of their decisions concerning such matters, giving due consideration to the applicable tax consequences of the action, or the need for more sophisticated tax expertise{10}. According to Withers, elder law is rapidly expanding and changing area, and the laws and regulations governing it are becoming increasingly complex{11}.Today, in several European nations and other developed countries, Elder Law has evolved and matured into a known and recognized field of expertise and specialization in law {12} unlike Nigeria where the formative stage has not yet been incubated.

In United States, a few federal laws relate specifically to elder abuse and neglect, but none of these laws provides broad regulatory mechanisms for state or local programs established specifically to support services for victims of elder abuse{13} until the recent passage of the Elder Justice Act of 2009{14}. The Elder Justice Act coordinates federal elder abuse detection and prevention programs within the Office of the Secretary of Health and Human Services{15}. The Act establishes an Elder Abuse Coordinating Council, composed of federal department and agency heads or designees, and an Advisory Board on Elder Abuse, Neglect, and Exploitation, composed of 27 members of the public with expertise in elder abuse prevention, detection, treatment, intervention or prosecution{16}. The Older Americans Act (42 U.S.C. 3001 et seq.) contains definitions of elder abuse and authorizes federal funding for the National Centre on Elder Abuse (NCEA), a program of the U.S. Adult protective services.{17}All states have adult protective services (APS) or elder protective services (EPS) statutes that authorize and regulate the provision of services in cases of elder abuse. Some states have both EPS and APS statutes, and some states have more than one APS law. These statutes set up systems for reporting and investigating suspected elder abuse and for delivering services to victims{18} and Long-Term Care Ombudsman Program and institutional abuse laws.

The European Union recognises and respects the right of the elderly to lead a life of dignity and independence, to participate in social and cultural life; this right is enshrined in Article 25 of the Charter of Fundamental Rights {19}. Furthermore, the European Union has since 2000 issued a directive among many other things to ban discrimination on the basis of age in employment and occupation. Programme such as Right Equality and Citizenship programme 2014-2020 has been initiated to combat discrimination.{20}

The Mental Capacity Act 2005 (” MCA 2005″) for England and Wales received Royal Assent on 7 April 2005 and was fully implemented on 1 October 2007. The MCA 2005 provides a framework to empower and protect people who (may) lack capacity to make certain decisions for them. Section 44 creates a new criminal offence of wilful neglect or ill-treatment of a person lacking mental capacity to make relevant decisions{21}. Domestic Violence, Crime and Victims Act 2004 is another major act that touch the protection of the elderly in Scotland and Wales.

The Domestic Violence, Crime and Victims Act 2004 (” DVCVA 2004″) provides some additional protection of the rights of “vulnerable” older people. Section 5 of the DVCVA 2004 creates an offence of causing the death of a child or vulnerable adult.{22}In February 2003, pursuant to section 23(1) of the Care Standards Act 2000, the Secretary of State for Health (Department of Health) published a statement of national minimum standards entitled, Care homes for older people: national minimum standards and the Care Homes Regulations (“National Minimum Standards”){23}. This statement applies to “care homes”, as defined by section 3 of the CSA 2000, which provides accommodation, as well as nursing or personal care for older people.{24}

The Scottish Parliament enacted the Adult Support and Protection (Scotland) Act 2007 (“the Act”), which introduces a statutory framework for the protection adults of all ages who may be “at risk“.{25}

The Current Challenges in Respect of Eldercare and Elder Law in Nigeria
Presently, the rise in the adoption of the Western culture by Nigerians has enveloped with it similar challenges and even more. Our elderly are now faced with the following as elucidated by Jennifer H. Mike in her Lecture titled “Nurturing a Positively Sensitive and Inclusive Society: A Framework for the Protection of Older Persons in Nigeria

  1. Social Isolation
  2. Perception of older people as physically and mentally unfit
  3. Loneliness and difficulty in adjusting to retirement,
  4. Lack of meaningful activity leading to disenchantment
  5. Homelessness
  6. Poverty usually due to delays in payment of gratuity and pension.
  7. Abuse – including financial, physical and psychological abuse of elderly people
  8. Rules, Policies, Procedures do not cater for their rights
  9. Lack of access to appropriate and adequate aged care facilities and health care,
  10. And denial or rationing of health care.
  11. Workplace discrimination – older people may face prejudice when applying for jobs, seeking promotions, accessing training or may be harassed in the workplace Poor living standards and dependency on social security payments or Pensions
  12. Barriers in accessing government services
  13. Labelled witches, limitations and lack of opportunities to participate in community/public life.

Over the years, there has been a noticeable negative shift in the care-giving culture of the Nigerian people as it pertains to the elderly, and the traditional functions of the family in terms of support to older family members have decreased in recent times{26}. A lot of things have changed and it calls for serious attention because there are many issues we must not overlook as growing old is inevitable for all and we might end up in the same cave if no prompt action is taken to salvage these issues. Some of the current challenges arose as a result of the bitter reality that the hope of the aged people who have invested in their children in their hay days with the belief that they will have succour from them when they get old has been rudely dashed, because most of the children find it difficult to secure a good job after their schooling.{27}More so, the rising cost of living and shrinking income pattern in Nigeria often makes it difficult for the family to provide adequate care and support especially as there are no government provision for the elderly person{28}. Besides, those who even have enough money to spend on their parents, due to the nature of their jobs and family arrangement; do not really have the time to render the care and attention needed to them{29}. Hence, the best time to intervene in solving these problems is now.

The Way Forward
Everybody deserves a good rest, good health care and a reasonable level of enjoyment after retirement. It is therefore not out of place for the public and indeed the Nigerian Government to ensure that no one is deprived of such entitlements.
It is worthy of note that on 26th January, 2018, President Muhammadu Buhari signed the Senior Citizens Centre Bill, two years after it was first introduced into the House of Representatives. The law provides for the building of senior citizens Centre in the Federal Capital Territory and in states that are interested. The functions of the Centre include:

  • Identifying the needs of senior citizens;
  • Taking responsibility for creating recreational, sports, health, educational, counselling and social programmes for their benefit. The Centre has the capacity to generate about 720,000 jobs when established across all the states of the federation. This thus indicates that they will benefit not only the senior citizens. However, since its signing into law, nothing has been heard from the federal government about this promising legislation or plans regarding its implementation.

It is therefore imperative that any action adopted by the government or Law enacted to this effect must be pragmatic enough to truly cater for the needs of the older persons. The policies should accordingly ensure the provision of the following:

  1. Provision of Adequate Health Care
  2. Provision of Retirement Benefits
  3. Involvement in Social Activities and National Development
  4. Ensuring safety mechanisms are put in place for the Elderly
  5. Creation of awareness by educating people on how to take care the Old
  6. Putting incentives and discounts in place to ease their daily lives.

On a final note, giving our older persons a better chance to live well and survive longer is a work for all as we can all assist them in one area or another when the need arises. The Government must therefore also put forward encouraging policies to ensure this becomes a reality.

Article Authors

Ogundele Samson Abayomi Esq,
(+234) 08137997815,
ogundelea076@gmail.com

And

Adeoye Damilare Adetayo Esq
adamilareadetayo@yahoo.com
(+234) 08165548350
A member of the World Association for Medical Law
And Center for Medical Law Research and Development.

ENDNOTES

1. Perpetua Lum Tanyi & Pelser André “Care of the elderly in Nigeria: Implications for policy” https://www.tandfonline.com/doi/full/10.1080/23311886.2018.1555201Listen Research Article access 4th of December 2019

2. Echeta, Uzonna F. and Ezeh, Ebere Ifeyinwa”The Igbo Care for the Elderly in Contemporary Times: An Old Testament Evaluation” International Journal of Development and Management Review (INJODEMAR) Vol.1 2 No. 1 June, 2017

3. The age subscribed too generally is usually the age of retirement, Nigeria age of retirement is sixty years. Although many Nigeria public servants would have altered their age in the fear of leaving work to do nothing after retirement. Hence there is likelihood many might retire with the age of sixty on the paper but in real truth they are older than the age retirement age.

4. Definition of Elderly Care http://www.definitions.net/definition/elderly+care access 4th day of December 2019

5. Ibid.

6. Dimkpa, Daisy I. “Perspectives on Elder Bias and Abandonment in Nigeria: Implications for Gerontological Counselling” International Journal of Education and Research Vol. 3 No. 4 April 2015.

7. Ibid.

8. Israel Doron ‘‘Elder Law: current issues and future frontiers’ European Journal of Ageing · March 2006’

9. Ian Stuart Scott “Towards a Theory of elder Law, a Comparative Study of Legal Practise in the United States and England and Wales” or Withers LLP, London EC4M 7EG “Practice Areas” http://www.withersworldwide.com/practiceareas/personal/elder-law.aspx

10. Ian Stuart Scott “Towards a Theory of elder Law, a Comparative Study of Legal Practise in the United States and England and Wales” or NAELA, The National Academy of Elder Law Attorneys, 1577 Spring Hill Road, Suite 220, Vienna, VA 22182..USA http://www.naela.org/Pros_Certification.aspx

11. Ian Stuart Scott “Towards a Theory of elder Law, a Comparative Study of Legal Prtise in the United States and England and Wales” or Withers LLP, London EC4M 7EG “Practice Areas” http://www.withersworldwide.com/practiceareas/personal/elder-law.aspx

12.Israel Doron ‘‘Elder Law: current issues and future frontiers’ European Journal of Ageing · March 2006’

13. http://www.eldersandcourts.org/elder-abuse/elder-abuse-material-for-right-rail-menu-for-elder-abuse/basics/elder-abuse-laws.aspx access 6th of December, 2019

14. http://www.eldersandcourts.org/elder-abuse/elder-abuse-material-for-right-rail-menu-for-elder-abuse/basics/elder-abuse-laws.aspx

15. Ibid

16. Ibid

17. Ibid

18. http://www.eldersandcourts.org/elder-abuse/elder-abuse-material-for-right-rail-menu-for-elder-abuse/basics/elder-abuse-laws.aspx

19. Ec.europa.eu/info/aid-development-cooperation-fundamental–rights/your-rights-eu/know-your-rights/equality/rights-elderly_en accessed 5th of December, 2019 12:50 pm.

20. Ibid

21. https://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/elder-aines/def/p3.html accessed 5th of December, 2019

22. Ibid

23. Ibid

24. Ibid

25. Ibid

26. Ibid

27. Araromi, Marcus Ayodeji, Protecting the Rights of Old People in Nigeria: Towards a Legal Reform Journal of Law, Policy and Globalization Vol.40, 2015

28. Uzoma Odera Okoye “Community-Based Care for Home Bound Elderly Persons in Nigeria; A Policy Option” International Journal of Innovative Research in Science, Engineering and Technology Vol. 2, Issue 12, December 2013

29. Araromi, Marcus Ayodeji,Protecting the Rights of Old People in Nigeria: Towards a Legal Reform Journal of Law, Policy and Globalization Vol.40, 2015

Featured Pictures Sources

Elder Care

https://www.vpr.org/post/worse-care-low-pay-tough-work-and-turnover-bedevil-vermonts-eldercare-workforce

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