On rights, duties and vulnerability: assessing the role of human rights in the care and protection of vulnerable people

When we are confronted with vulnerable people, with those groups and individuals who are impaired with respect to their ability to function as the rational, autonomous and moral agents that we typically take humans to be, we are encouraged to invoke notions of rights, and in particular notions of human rights, in order to secure their care and protection. Such an approach seeks not simply to reinforce the view that vulnerable people are the moral equivalents of us all and thus are entitled to an equal moral consideration, but also this approach recognises that to be vulnerable is often to be unable to assert and secure a standard of existence we think appropriate for all humans to enjoy. And whilst human rights may be regarded as having a variety of roles or purposes, nevertheless, the care and protection function, what I refer to as the task of moral rescue, is somehow crucial to the concept. Any notion of human rights that failed to offer protection to those in danger or to those at risk of harm or neglect or abuse, no matter what other benefits it promised or conferred, would be seen as both morally negligent and intellectually impoverished. Yet in this thesis I assert that human rights have largely failed those who are vulnerable and in particular they have often failed those who are especially vulnerable. This failure of human rights is predicated upon three factors. First, human rights are based upon a view of the individual as a rational, autonomous, independent moral agent who at all times identifies and asserts her own best interests. In this thesis I suggest that such a view is misleading. In particular it fails to acknowledge that what often defines the vulnerable, and particularly those who are especially vulnerable, is their inability to act from a rationally, reflective agency. Second, human rights fail to address the different sorts of social and political contexts within which vulnerable people often find themselves. The world of the vulnerable is frequently one of disempowerment, dependency and marginalisation, and this is particularly so with regard to those vulnerable I have identified within the course of this thesis; the frail aged within this country�s residential aged care facilities, many of whom suffer from dementia, and the chronically mentally ill. Finally, within human rights the emphasis has typically been upon the rights the vulnerable possess and has neglected the duties and obligations that relevant agents owe the vulnerable. In this thesis I assert that the only way to engage the human rights of the vulnerable, in fact the only way to operationalise human rights, is by a strong commitment to duty. In a society so consistently defined by rights, notions of duty all too often appear to be sidelined, yet it is only by an emphasis upon the duties and obligations of caregivers, whoever we take such caregivers to be (doctors, psychiatrists, psychologists, social workers, nurses, policy makers and bureaucrats), that human rights can be engaged and vulnerable people protected. Thus I argue for a notion of the duties and obligations of caregivers as a mean of enacting the human rights that all persons are said to possess. My emphasis in this work is upon those whose vulnerability is extreme. This does not diminish its importance. Increasingly in the West, with the advancing incidence of chronic neurodegenerative disorders such as the dementias, we are forced to confront extreme vulnerability. How we engage such persons is crucial to the sorts of lives they lead and is crucial also to the sorts of people we become. We all begin life in an extreme state of vulnerability and there are many times throughout the course of our existence when we may be severely compromised, if only for brief periods. For those of us who suffer from dementia or chronic mental illness, our vulnerability will be persistent and permanent. Thus this perspective recognises that the vulnerable are not a group of people set apart from the rest of us. In many ways it is we who are the vulnerable.