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Promoting the Rights of Choice and Self Determination of Older Adults with Care Needs

Abstract

Senior citizens’ right to receive care is a fundamental social right that can be attained through a sustaining social and legal infrastructure. The definition and scope of senior citizens’ right to care are presently open to interpretation in the Korean context. While the current constitutional provisions are still evolving in that respect, widespread recognition and acceptance of seniors’ right to care are observed to influence eventual legislative decisions. This study will discuss the role of government with a focus on regulatory strategies and frameworks that are instrumental in promoting senior citizens’ autonomy and self-determination in the course of formal elderly care services. The state’s duty to protect fundamental rights will be reviewed as well, highlighting how this duty can be efficiently fulfilled in serving the specific needs of a senior population.

As stated in the article 34 of the Constitution of South Korea, “all citizens shall be entitled to a life worthy of human beings.” The elderly population is comparatively underprivileged and vulnerable, and their physical, mental, or socioeconomic well-being is susceptible to instability. That is why senior citizens, among others, should be paid close attention in order to assure that their fundamental rights (including the right to receive decent care) are protected by following constitutional requirements. At the same time, it is a matter of social justice to take care of older persons who are frail and in need of assistance. The care of the elderly was provided predominantly in an informal way until recently; typically, women used to have the primary obligation to take care of older adults in a traditional tight-knit familial setting.

The call for formal senior care has come into view as the social status of those women drastically changed, with female labor force participation consistently increasing. The decline of the traditional extended family (generally three generation household) as well as fast population aging gives another impetus for reforming the groundwork for senior care. This transition from informal family care into formal care systems is also an outcome of social climate, where the members are actively claiming social justice and moral integrity to improve the status of marginalized groups of people including senior citizens. This, in turn, is reflected in the administrative and legal environments.

Responding to the changes in social structure and emergent needs of formal senior care, the government endeavors to create social security services such as nationwide elderly long-term care insurance and service voucher programs. In practice, these programs are operated mainly by private sector organizations, based on a personal care agreement between the provider and the client. The duties on the part of the state are manifold in facilitating and overseeing such contractual transactions: 1) laying a social structure for accommodating stable formal senior care services, 2) ensuring the availability of the aimed care services, 3) promoting freedom of choice and fair competition, and 4) securing the autonomy of the private sector care industry. Among them, freedom of choice and fair competition are directly related to the client’s right to self-determination and autonomy. Even if older adults have limited capabilities, they are not to be deprived of independence, self-actualization and dignity. The foremost focus of the pertinent state policies and strategies should be on protecting these basic rights of senior citizens.

The right of choice in senior care cannot be adequately understood if it is translated through a free market economy paradigm without prudence. Theoretically, consumers benefit from various options of goods and services available in the market to choose from. Competition, in this sense, makes favorable effects for consumers–a reasonable price and a high quality of product/service.

However, the demand and supply are relatively finite for welfare services such as senior care. In addition, care services are characterized to be labor intensive and delivered on a one-on-one basis, thus disabling ‘effective competition.’ If a caregiver’s pursuit of profit is justified in the same way as in a free market, it is likely to produce undesirable-quality services. What’s more, unequal access to information and service provider’s adverse selection of customers are inclined to undermine the basic rights of those in need of care services. Timely governmental interventions along with regulatory measures can alter this asymmetry. Primarily, the state ought to guarantee a wide range of service options and competitive care providers. The government has been quite successful in expanding the pool of service providers by lessening regulatory barriers. However, efforts to grapple with quality related problems are still emerging.

Another issue worthy of attention is whether older persons are competent enough to make reasonable choices. The right to make choices without coercion is contingent on the decision maker’s capability of an independent act of selection. Many of the elderly suffer from chronic conditions with eroding physical and/or mental competence. As a feasible option to cope with such problems, development of more committed conservatorship and public guardian program will be useful. It is unquestionable that the emphasis should be on the specific characteristics of a senior population to respond appropriately to their needs. As we expect population aging to remain steady social and demographic trends in coming decades, ongoing efforts to advocate the senior’s right of choice are requested in the following areas: review of the regulatory framework, development of effective means of information sharing and set-up of improved communication.

Dr. Park, Jeong Yeon is a full-time researcher of the Ewha Institute for Biomedical Law. She has conducting research in many areas at healthcare and administrative law, especially focusing on the elderly’s health care. Currently, she is conducting study on the regulation of medical devices and the legal issues on the smarthome health care in aging society.

Prior to joining the Institute, she made her own career as a legal expert. Dr. Park was a researcher of the Legal Research Institute of the Korea University. Also, she had worked as a researcher at the Ministry of Government Legislation in Korea(2009–2011) and the Law Information Service(2012-2014) which is a government-affiliated organization.

Dr. Park received a Ph.D. degree at the Korea University with a thesis titled “A Study on the Supply of Welfare Services: by the Private Sector from a Public Law Perspective”(2016), and attained a master’s degree at the same university with a thesis titled “A Study on the procedural Amendment on Payment under the National Basis Livelihood Security Act(2012).