Professional Documents
Culture Documents
Lecture II
The development of human rights insturments historically
they can be tied back to the French revolution.
before WWII there was a radical shift. It was important that rights belong
to the citizens and not merely the states.
principle the earlier approach the state on behalf of the states could persue
human rights.
Post WWII * positive obligations to act
o traditionally human rights was about interferance from the state. It
was the liberal man without state intervention. The shift was that
it required the states to actually act, not merely refrain from
acting.
Economic consideraitons
o This required the state to forego money for the fulfillment of cetain
rights. This increased complications between economic, social and
economic rights, contra civil and political rights.
o first second and third generation rights.
! generally there is no sharp diviisn between these rights. All
of the decisions on the convention of human rights.
Civil and political rights in context?
o Ecoomic social and cultural rights
! In the first 20 articles, these rights predominate. It is not
about what is written in the consittuion but also the active
role in the states.
! in Belgiium there are positive rights to ignity affiliated with
housing provision. They exist and are not implemented.
Globally
o In south Africa, and latin 3merica
! They have used the supreme court to address issues of
social protection.
o In Norway
! Does the constitution protect economic and social rights?
! 1814, it was very old, 200 year constitution second largest
in the world. There was a revion committee which went to
the parlaimment. They made amendments concerning civil
and political right . For example the right to family life.
There was not a right to health or social benefits?here is a
welfare state, but it is not protected under the
constitution.
o The lesson: when it comes to what is contained in these legal
insturments, they can be in the constitution but it doesnt really
matter. The more rights you have the more rights the people
actually have.
o Despite not being protected in Norway, there amy be a high
standard of health care protection.
The role of the court
o this impacts on thee level
examining the detail of these different insturments
interaction between the ECHR which is binding, and the ESC which
makes decisions through a committee that are not binding.
o The ECHR
o The ESC is through the European Social Charter. This is used for
non binding decisions,
It has been argued that despite the benefits to health treatment this free
movement may comprimise the financial stability of nations who must
supply extended facilities and programs to other non citizens.
In the EU
they are influential because they do have binding nature. They are also
implemented. There are so amny. There are many remedies. Smaller
member states cannot challenge the EU
considering the relevance of health
This is not a question of the EU. This has changed however. Partly
because some of the provisions of health serviecs is important econoic
reasons. There should be a free movement of health services. There should
be increased mobility within health.
significant $$ this is a large econmic impact.
The European charter on fundamental rights
It is translated in many languages. It is in Danish.
Principle article 35 everyone has the right to preventative health care.
This is an enforceable instrument by the court in Luxembourg. In this
respect it is a question of member states. In the implementation of health
or social rights. Article 34. On social security and assistance.
Secondary law within the EU
Lecture III
Patient rights
overview
definition, development sources
related movements
o pub health
o human rights
concept of human dignity
balancing of different rights
case law
developments in medicine and health care
there has been a great growth
there are more treatment options
new ethical legal dilemmas
increasing age of populaitons
many new questions
increased technicality of medical care, and more creative. Because of this
developent there are
scope and definition of patient rights
rights of individuaals who interact with the healthcare system
includes rights to become a patient to access healthcare services. Rights
while receiving treatment, rights after treatment.
Patient
User of the healthcare system, whether healthy or sick
o It is not necessary that they be sick or healthy. For example you
may be engaging in preventative health care. Likewise th retention
of records.
patient rights development
the conceptualization of rights of these patients has changed dramatically.
o Right to professional conduct
Autonomy
o Has only been a recent development,
The Nuremberg code (1947)
o There were 10 ethical principles including voluntary informed
consent. This was a necessary development.
Impact of the human rights development UDHR 1948 and ECHR
1950
o Based on these, after WWII patient rights were conceptualized in
the 1970s
Declaration of the promotion of patient rights in Europe WHO 1994
what have been major public health movements?
Responses to the HIV aids epidemic, reproductive sexual health 1980s
1990s.
o balancing between protecting society, and balancing the rights of
the infected individuals to retain a place within society.
New insights
if they are not able to understand the content of the consent. These are
similar in other countries
!
!
Z v Finland (1997)
holding
o consideration
! protection of personal data, is of fundamental importance,
to enjoyment to the right to private and family life. Health
data, is vital. It is crutial to respect privacy, and to preserve
confidence in the medical profession and the trust in the
health service.
! seeking diagnosis, preventive efforts form the community.
principle
patient rights
relevance to humnan rights
o the importance of using dignity in the value of all human rights. In
the case of pretty dignity was at stake, despite not getting her will.
The respect for individual respect for autonomy lbeerty, and value
are in the health system respected. Sometimes however ocial
interests and pubic interests can outweigh rights to privacy and
confidentiality. In the finland case it was that. In the Sweden case
the protection was justified. There was insufficient proteciotn of
pricacy.
o dusciionn
! this human rights framework is a usefula way of addressing
these issues for ht prteciotn of the individual annd
balancing the interests fo individuals. Not spreading serious
diseases. Even if it is very serious. You cannot use out of
proportion interventions that are beyond that which is
necessary like the aids case.
o Discussion for exam
! look for a balance in the cases, and how they approach the
issues. Consider how these concepts are found the balance
that is necessary between social interests and human rights.
proxy conset
participation.
o They must take part, but this is not actually in making a decision.
This is the same as children.
Older persons and the right to health.
Older persons and the right to health, growing number of people who are
old.
Aging, health and health care
o Health concerns increase and disability and illness rise.
At the same time, older persons do not have sufficient access to
appropriate health care services.
o Especially for the oldest people.
Common health problems and related disabilities
o Disease, stroke and non communicable diseases. Poor nutrition,
increasing levels of obesity.
The health paradox
Instead fo decreasing our overall healthcare needs an improved standard of
health may in fact generate increased healthcare needs.
Article 3 biomedicine convention
Take into account the health needs, and available resources, appropriate
quality of provision of srvices.
State obligations
Absense of unjustified discrimination regarding health care, satisfactory
degree of care for all groups, reasonable accmodation for different needs
thimmenos v Greece.
Fitting standard
considering scientifiec progress, subject to continuous quality assessmet.
Especially for old people.
If there is lack of access to appropriate care, because serives are not
effectively provided then this can be a breach. Ie if they need emergency
assistance.
article 6
in conclusion
in discussing disability as a concept we do not use the medical definintion.
It is also about how society responds to these kinds of disabilities. States
are obligated to accommodate for these differences, in taking into account
the different disabiities that define each of these groups.
there are also identifiable links between social, economic, mental and
physical disabilities.
law
o conventions CRPD and ECHR
right to privacy and liberty
discrimation and autonomy
o what does it mean, it is more about positive steps to ensure that
discirmiantin is avoided. In failing to take positive steps they are
discriminating.
Autonomy
o
informed consent
states must define the direct benefit.
Persecitves
Un treaties
then health care privatisaiton
question
abortion law in Australia
restriction, cut off period, statistical data, high or low relative, teenage
pregnancy
illegal abortions, reproductive health information,
undocumented migrants
right to health as a human right
different types or generations of human rights, these are considered to be
interconnected.
o civil and political rights, age of enlightenment, 1800s. These
contain what we consider to be rights associated with civil society.
Freedom of religion, torture, and health
o economic social and cultural rihts, health, these can be traced
back to the industrial revolution, 19th century, 1919, social rights
movement.
o collective rights, these were recognized at the beginning of
colonisaiton, self determination of peoples. Right to development,
environment.
1993 vinenna declaration and program of action
o where it was stated that all rights are universal individible and
interdependent and interrelated. The are self reinforcing.
Which rights are important for the protection of health
Civil rights, Right to life, prohib of torture, inhuman degrading treatment.
economic social and cultural rights, these include the right to health,
adequate standards of living, food, social security, progress.
Health the history of this right
Post WWII in 1946 there was optimisum, physical, mental and social
wellbeing. It is unachievable, especially for governments. This can be
interpreted as supporting the mental and social aspects of helath, creating
these conditions.
What are the different interpretaitons
rawls 1971
o human health is a natural good, not socially produced, it does not
come within the sphere of social justice different approach, the
capabilities approach.
Benkatapuram (2011)
o health capabilities, building on mhars recognisigng the moral
entitlement for the capability of being healthy. A right to a cluster
of entitlements to learn to be healthy.
o for example a disabled person cannot walk, they have needs to
function in society however.
Discussion
o Therefore there is a mvovement away from the WHO definintion.
The rawls approach has been largely dropped and it is the physical
capabilities.
looking at the EU
art 11 ESC
o take app measures to remove causes of ill health, education,
econuragement individual responsibility, prevent epidemic
endemic and other diseases.
national constitutions
UK no written constitution
Ireland no ESC
netherlands steps to promot the health of the population, has constitution,
ESR but they are not rights, they are obligations on the state art 22.
Czech Republic prior soviet state, explicity stated right to health. Citizens
have the right on the basis of public insurance, protected under law.
starting point, right to health
art 12 ICESCR
o how to think about this provison
general comment 14
o adoted in 2000, the legal status is not legally binding, they are
comments, it is nonetheless an authoritative docuemtn.
o not a right to be healthy it is about health care, and underlying
determinants.
WHO
o underlying determinants to health,
genera comment 14 AAAQ
o accessibility (non discrimination, physical accessibility,
affordability, information accessibility), availability, acceptability
(ethics and cultural consideration especially in consider informed
consent), quality
respect
o negative
protect
o positive obligation , to regulate the actors in the helath system to
ensure that human rights are not violated.
fulfil
General comment 14
Core obligations, right to min services under all circs, irrespective to
available services.
o The idea is interesting in that in an emergency, for vulnerable
groups, undocument migrants, do they have a right to this
minimum.
Primary health care 1978
Example of a case at the UN level
CEDAW communication 17 2008 there is a complaint mechanism, where
these parties may be considerd. Maria de Lourdes da silva pimentael v
Brazil on behalf of Alyne dee silva (the desceased)
o Article 12 2 (e) recommendations 24 28
Facts
o She was pregnant, the foetus had died, she only got the surgery 14
hours after labour was induced. Her health deteriorated and she
died. Her mother submitted the case on her behalf.
o Argued that the healthcare was provided much too late, the
committee recognized this, and considered the violation.
o the state was responsible for the malfeseance of the state. In
outsourcing medical services to these, the state maintains an
oblgation to protect, and regulate with regard to the right to
health.
At a European level, there are more of these cases
the monitoring body is the EUc committee of social rights council of
EU, EU social charter, collective complaints mechanism check the
website coe.int/t/dghl/ monitoring
vulnrable groups and non discriminiation, tthis *** can be a useful framework
of the discussion in the paper.
the right to health,
formal by law
and substantive equality
o this goes further than law, you need to really do more to achieve
the factual equality of these. Ie positive discrimination,
reproductive needs of women.
General comment 20 CESCR
direct vs indirect discrimination
o direct- an individual is treated less favourably because of a reason
connected to a prohibited ground of discirmaition. These are found
in the treaties.
o This may be on the basis of sex for example.
o law policies which appear neutral, have a negative impact on
rights, as distinguished on prohibited grounds.
! For example birth certificate is a prerequisite for health
care.
Discrimantion CESCR GC 20
Prohibited grounds
other status; disability age nationality marital family sexual orientation,
health stuate, place of residence. For example a health stauts.
Discrimaition on the basis of health stautts
there should be measures taken to avoid where access to health insurance,
will amount to discrimation, if no objective crieia can justify
differentiation. If there is no stigmatization, health insurance,
vulntrable groups is discussied in GC 14- 18-24
ethinci minorities, undocumented migrants
women children disabled and elderly.
How to ensure that they are not rejected from
denmark oly provides emergency series, spain grated universal access.
WHO debate, the social determinants of health
The issue; there is access to health car , and the underlying determinants
of health. This is a term that comes form social medicine.
history, 2006 WHO adopted report about social determinants, this is
relevant to bring back to health as a right
this is about where people grow, they are born live and work. It is about
distribtion of money power and resources at a global level. It is really a
matter of social justice.
lack of the ability to make informed deicisons and thereby uts humself at
risk unknown or uncomprehensible to him or her.
The reaons that these patients are interesting in a human rihts framework
in that they dont fully understand the nature of the risk that they are
exposing themselves to. They may be afraid of paid, or needles, they cant
comprehend the benefit of enduing a small pain for a longer period.
should we completely abandon the idea of self determination when dealing with
these different groups of people?
There is a tendency to completely disregard their porential of self
determination. You should override this with your paternalistic efforts at
bettering their circumstsnaces.
however what are the risks in taking away self determaintion?
there is a luring risk of abuse of power, when other people make these
decisions how are you guarded against an abuse of power.
so how do we actually protect these vulnerable groups?
Protect from abuse of power form the authorities
bad judgements, safeguards of others[ this is distinguished from the first in
that we have a legal guardian in custory, they may not have their own
agenda but you cant trust their judgement]
own bad judgement safeguards,
there is abuse risk that is hugher when
there is an unequal balance of power
o indiivudal relies on help this goes for
o children
o adusts without the ability to have informed consent
the reliance on the welfare state
o because of reliance on this there may be an abuse of power.
o the prior risk was to do with incarceration, or other violent
retaliation.
o being put into a vulnerable position is another abuse in that they
are reliant on the help.
conflicting interests of authorities and individual citizens in healthcare
the individuals interest in effective non invasive respectful treatment
without side effects.
if not possible then it should be as close as possible to these ideal goals.
authorities may have different interests
research interests
o potential for abuse
interests of society as a whole
o you dont want it to be too expensive
economic interests
personal interests in representing the authorities
indivdual doesnt want treatment
WWII
case study
a guy who was probs diabetic, with big wounds on his leg. The staff at the
nursing home wanted to treat them, but it hurt badly to change the band
aids so he didnt want them to treat them. This may was in the centre of an
apartment with nursing home,who didnt want treatment.
holding the court held that the hospital was able to treat the wounds. This
is a clear example of a situation where the individual;s own interest was in
a discrepancy with the authorities.
Another situation
person doesnt want treatment, authorities without interest, and relatives want
treatment
this will never be a problem with an adult with a normal legal and mental
capacity.
denmark- another conflict of interest
when you have night staff in the hospital. It was a waste of time and
resources. They therefore came up with the idea that they could use the
quiet hours to wake them up, dress them, and put them back to sleep. This
was the argument.
the economic interests of the nursing home was conflicting with a
normal routine, and a day sleep.
it is not healthy to be woken up in the middle of the night. Furthermore
when the authorities are personalized, when they walk into the patient.
nursing home in denmark
she killed 4 people, they were said to be mercy killings. There had been
unexplicable deaths. She was charged with this. Despite her personal
interests, there was a potential conflict of interest.
need for protection against bad judgment
a common thread is giving the family more of a say.
economic interests
o having a relative in the house, access to pension and finances,
access to child support
o unsound emotional bond
o unable to see own limitations regarding the necessary care. At the
time the authorities discovered that she had a problem she was
unable to see clear answers from anything. Dehydrated and
malnourished. She didnt have great health.
Need for protection against own bad judgementd