human rights and health

Published on February 2017 | Categories: Documents | Downloads: 65 | Comments: 0 | Views: 419
of 34
Download PDF   Embed   Report

Comments

Content

Introduciton
1) the nordic model
a. it is based on social democracy, it is really about balancing the
interests of individual autonomy against health priority.
2) Healthcare
a. These are essentially for the welfare state, they are emergency, private
and public.medicine is relevant in that it is indivudal and curative,
aublic health is about prevention and population based analysis.
3) Preconditions
a. Health is determined by the environment, you must have adequate
access to food, and the environment must be maintained.
4) Human rights
a. Are those things which are attributable to man regardless of race creed
colour ethnicity etc. Dignity is central to this concept
b. Principle autonomy, liberty and privacy should be respected as long as
it respects the dignity of the indivdual.
5) The dilemma
a. How do we make a decision based on the dignity of the individual and
the challenges that are faced. Right to life, the right to health,
autonomy, privacy and non discrimnation.
6) The state obligation to respect protect and fulfill
a. This is contained in UDHR and the Vienna declaration on the program
of action.
b. There is an inherent interdependence between the rights, the right ot
helath necessaryily entails access to certain polctical and economic
rights.
7) History in EU
a. It was riddled by war, and the response was the Council of Europe and
the EU.
8) Normative standards
a. Are governed about the manner in which to treat humans. This is
grounded in regional courts which are able to enforce these standards.
The ECHR and the ECSR and the UN rights committees.
9) Interpretiaon
a. Living standard. Tyrer v UK
b. The role of doctors is to protect the health of patients frankhowitz v
Poland.
c. Airey v Ireland there are inconsistencies in interpreting the scope fo the
rights. The court may take into consideration the economic and social
rights. There is no clear water tight division.
d. Negative and positive aspects
i. Right to life art 2.1
1. Enaalis positive obligaitons to protect and prevent
suicide. Kilin v turkey
ii. Article 3

1. The deprivation of appropriate care may consitite a
violation of article 3 based on the dignity of the
indivdual and the inhumain and degrading torture.
e. Margin of appreciation
i. There is a margin of appreciation between the states and the
ultimate application of the policies because of the nature of the
diversity of Europe. Depends on the degree of interferance and
the establishement of standards within Europe.
f. Absolute vs non absolute rights
i. Right to life, prohib on torture, prohib on slavery
ii. Necessary in a democratic state, prescribed by law, achieving
certain interests and outcomes.
g. Right to liberty
i. And security as prescribed by law,
h. right to liberty and security
i. right to privacy
j. informed consent
i. jehovas witnesses v Moscow 2010
ii. it is for the medical authorites to decide on the appropriate
treatment to be used.
k. Respect, protect and fulfill
i. Respect; is acknowledging the existence of a particular right
ii. Protect, is the act of preventing non state actors from
interfering with a respected right. For example in criminilising
certain conduct, and taking opsitive measures to prevent
conduct.
iii. Fulfil is the administrative fulfillment of the right. Basically
you need to take positive measures to ensure that the right is
fully realized. Facilitate promote and provide healthcare
services to all.
10) The European human rights framework (reading)
a. TFEU
i. Art 152 and 168 are similar, policy is to improve public health
combating serious cross border diseases.
ii. There is a desire to increase the accessibility of health related
progams for cross border things. Serious things like alcohol and
tobacco are relevant conclusion is that the adoption of the
Lisbon treaty has resulted in the expansion of the area of health
it is a more proactive role for states.
b. The TEU
c. Public health
i. Is important as a transational endeavour. The EU under 168 has
the competence to
ii. Strategy is to consider the larger relevance of the EU as acting
as a global voice on the health of individuals.
iii. Promote
1. Safety programs for patients
2. High quality and safe healthcare
3. Safety and quality of organs and blood
iv. Clinical trials: the directive deals with this, 2001/20/EC.

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 doesn’t 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,

The European convention on human rights (ECHR)
• the European court of human rights, does this protect economic social
and cultural rights? It is not legally binding. It is not legally binding and
enforceable. Explination the convention has been ratified? When
internally examining this, can you invoke the connveiton as a source of
law? Another queston, depends on the extent of ratification. In Norway
human rights act it is incorporated in Norwegian law
• issue: are the decisions of the EUHR court binding on different countries?
Principle: compensation may be paid to the applicants. It is binding!
But there is no administrateive body to enforce its decions There is a
committee that legally this is a binding decision. If you don’t pay, the
council of Europe cannot enforce it in that sense, the philosoical question
is whether it is still legally bining if it can be enforced. It is binding in the
sense that the state has committed itself to follow these rules.
• Principle the ECHR creates binding but not enforceable decisions.
• Does it protect health and social rights? No, but some civil and
political rights that they cover aspects of social rihts. Not a direct
protection however.
o not really, they are connected, working buying food to be well fed.
You cannot claim a right to work form the state. For example
provison of conditions for people to find work. Princple : there is
no prima facie protection of health or social rights, however it does
have an impact on addressing social rights in certain circumstances
throught the provison of other rights.
• does it protect economic rights
o yes in a sense property rights are protected, however these are
generally protected through the states themselves.
the revised European Social charter: usage it is not legally binding but provides a
number of different targeted social rights.
• type of instrument? It is soft law in a sense. It is binding because it is
ratified in a sense. But it is softer.
• Supervison body under the charter?
o It is a committee. They make non binding decisonns.
• Role and function, the content.
o riht to work
o safe work
o organize
o collective bargaining
• principles; provisions that target social rights.
Biomedial convention*** this is of great importance to this course because it
targets health isssues at an international level.

It targets biomedicine. Principle it is about health law, and the main
provison is about informed consent. Many of these provsions allow
interaction without consent. Likewise additional protocals which cover
medial research are contained within this insturmet.
• supervisionary body. There is no kind of supervisonary body.
• principle application; interesting in that it targets health law, informative,
however it is not biding, and does not have any adminsitrateive body or
committee to carry out the purposes of this instrument.
• deep analysis of technical issues
• reading
o it recognizes dignity in art 1 and certain normative measures
allowing the primacy of the human body for non exploitative
purposes.
• Limits
o It doesn’t have any enforcement, and it doesn’t even
require regular reporting. However it does have a
Secretary general who ensures effective
implementation of its primary provisns. It can also
request a non binding advisory judgement from the
ECHR. 29.
Analysing the effectiveness of the European approach to rights
1) the EU social charter has a lot of potential, this is because of the
collective rights mechanism. Although the biomedicine convention is
relatively limited, it allows for certain things, and it is likely to
increase in prominence in coming years.


the content of these provisions
• they do not hae the same wording content because of the interpretation by
the court. For example with change of gender. The court
• despite being the same, the content is different in interprertaion.
universal declaration on human rights
• the preamble
o in artile 22 everyone has the right to social secrity, and entitled to
right of securitsaiton of economic social essential for dignity.
Everyone has the right to rest and leisure. Principle at the time
these were radical.
o application; this is not really binding. It nonetheless had a right to
civil and political rights.
Caselaw about the free movement of persons within the EU
1) SPUC v Grogan
• this case really exemplified the extent to which the Eu was willing to allow
people to morally shop for treatment within the EU. There were some irish
people seeking to get an aborition in another country and it was held that
this was possible.



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.

insturments under the UN
there were reasons that the ratification of economic and social rights were not ratified.
This was in 1968. This was a major dispute between the east and west. The US has
not actually ratified this final instrument.
General overview
• are there committess made according to the conventiosn. These following
two
1) The universal declaration of human rights (UDHR)
2) International coveneant on civil and political rights (ICCPR)
• there is a committee, a state can ratify and there is a complant mechanism.
The citizens can go to this committee and have this postion. This is under
the following convention.
International covenant on economic social and cultural rights (ICESCR)
• contrastingly there is no complaint procedure. There are state reports,
they may provide a report, every five years, which they normally say is
going pretty well!!
• not normally in practice. They can focus on development points, five
year increments
• the relevance of NGOs they provide the committees with shadow reports.
They may not always have the same weight.
• the committee produces** a statement, however it si not binding on the
states.
Convention on the rights of the child (CRC)
• history; 1989, under the UN. It is the conention ratified by most states in
the world. It is only the US and Somalia which have not ratified it.
And most other countries have ratified these measures.
• provisons include
o policy; they intended to have a convention protecting children.
Although there are coverage’s to other conventions, the fact that
children are generally not politically represented.
o the best interests of the child
o the child’s right to be heard.
• Discussion
o it addresses both civil and political freedoms, and eocomic and
social rights. This is an integrated instrument. In considering the
conflict between these.
• Actions
o state reports are produced, the committee in Switzerland reviews
them.

o There is a system of individual complaints which is an additional
protocol of the CRC.
Convention on the rights of persons with disibilities CRPD
• policy vulnerable group in need of special protecitons.
Discrimination treaties, why don’t university professors?
• women
• migrant workers
o health, not other persons
• issue: what is the logic behind making specific treaties for ‘vulnrable
people’. This is continually ongoing.
Several others bodies that protect Human rights
Reading
• key issues; free movement of patients, blood and tissue cells, data protection,
internal market flow, right to privacy nuder the EU.
• The enforcement
a. The Lisbon treaty establishes the jurisdiction of judicial review
through the ECHR. Threre are a number of provisons that deal
specifically with the rights.
i. Art 1 on the dignity
ii. Art 3 on the integrity of the person
1)
a

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





the directive on patient rigts on free movement of workers- it is not
really long.
o for example where there is a cross border issue, (it is not saying
that there is the same protection of patient rights, only in the
context of cross border movement).
Driving force in this area.
o This is specific to cross border internations therefore it is only
relevant with reference to ther instrumentts in Europe


Current reflections on current challenges in the field of human rights- discussion
on the complexity of the law and its practical application
1) Judicialisation
• Introduction
o Ffrom the point of view of a lawyers there is a lot of complicated
law. It is not a lot of people who can sort this out. Finding a
direction in the legal jungle. As a lawyer it is good!
• Is this in the best interests of the citizens?
o Do we need this law? Free access to a lawyer. Do we need all the
lawyers to be an agent between citizens and the law. Right to
information. Even for a skilled lawyer.
2) Supervison bodies
• This has occurred regularly, there is a dynamic approach which appears to
be neutral.
• much of the responsibility is with the court, and it must be dynamic
• issue; is it too dynamic? Is it not dynamic enough? Should it be more
dependent or indepenedet on these insturments?
• Lack of supervision bodies
o Some of the instruaments without adminstartige bodies means that
they really die out. For example the biomedial convention will
be revised or may die out it doesn’t have a source of
• 47 judges and
o The court has become much more efficient.
3) National implementation *This is the key issue
• even in the EU only certain rules are implemented domestically. This is
parly formula if implemented in the legislation. There are significant
differences between the member sates “variety on how the states
implement their oblgaitons and are binding themselves through the
increasing number of insturments.”
• Quantitive implementation
o many do not really give effect to this
• The quality of the rule
selection of current challenges in the field of health law
• reason for the importance!!
o There are many types of treatment that are available but which are
not accessible because of prohitive costs. The citizens have a high
standard.

o there are certain things which cannot be covered. Often the US is
compared through insurance schemes. Here the states generally
cover them private insurance forms a small part of this.

The international normative framework of rights
1) historically the right to health was based on the utilitatan argument, regarding
the prevention of the spread of infectious diseases. Gradually after WWII this
argument was favoured through the implemention of the right to health.
Deontologially accepting the relevance of health as a fundamental tenant of
being a human.
2) Where is it
a. 11ESC
i. marangopoulos; right to healthy living and healthy working
conditions
ii. ECCR v Bulgaria, access to healthcare in Bulgaria
iii. Interights v Croatia, access to health and reproductive services
in Croatia.
b. AAAQ in the Biomedicine convention
i. More the actual provison of healthcare, not the underlying
determinants.
3) In common law vs civil law countries
a. It is more common to have the right contained in civil constions,
howver this does not deny the practical proovsion of health services in
common law countries.
4) The scope
a. Art 12 IECCT adopted gc 14
b. This takes a braod interpretation of this provison stating that it is not
the right to healthcare merely but also the underlying determinats fo
health. Including housing, nutrition, this is backed up by studies that
indicate that peoples underlying environmental aspects are highly
determinative of their helalth.
5) Elements
a. The AAAQ- AP appraooch
i. Availability; it requires that there are adequate healthcare
facilties in the state
ii. Accessibility; this is non discrimination, fee? Econmic, social,
without discrimaition on prohibited grounds, they must be
accessible for marganilized groups. Affordability for all receive
inforaiton about the right to health,
iii. Acceptability, respectful of cultural individuals, minorities,
and communities etc.
iv. Quality
v. Accountabitlity; moniroring and other processes, as is
identified by potts,

vi. Participation; that the public is largly engaged in the major
decisions of the health sector,
b. General comment 14 on respect, protect and fulfill
i. Respect
1. This is in line with other obligations, basically respect
the existant rights. Do not discriminate, and pollute the
water, do not cause harm to groups of individual, use of
substances that are harmful to peoples health
ii. Protect;
1. is to ensure that individals refrain from infringitng on
the rights of others. It is the states responsibility to
oversee that these people do not cause harm to one
another. Budgetary, and judicial frameworks of
protection, sanctions in the criminal law.
iii. Fulfull
1. Facilitate; assisiting communities to access the right to
health
2. Provide; to groups who are unable to access these
faclities, if there is not an adoption of a national
framework or policy to deal with the right to health.
iv. International obligaitons
1. This extends to other countries, for example strictly
enforcing patient rihts for coutnries that are developing,
or by providing aid to countries.
c. Obligations vs public health and medicines
i. Medicince, is more individual focused
ii. Public health is strategic and based on group needs. Argument
is that there is a greater need to consider the social factors and
determinants that allow for health in a globalizing world.
d. Justiciability
i. This is basically whether a right may be upheld in a court or
enforceable institution. Whether the right to health is subject to
this is much debated.
ii. Many of these violations have been tried in lower or middle
income countries where the abuses are more apparent and
pertinent.

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



Need to protect society also respect individual rights
o Balancing social and individual rights.

Health and human rights: a theoretical framework 1994
• this is because national health policies can have important impacts on the
rights of individuals. These violations may also have health imapcts.
Protection of rights and health are intrinsically linked together.
• lack of confidentiality may seriously affect indiviudals
Human rights patient rights instruments
• declaration of the promotion of patients rights in EU WHO EU 1994
• convention on human rights and bio medicine
• council of EU recommendations on patietn rights and biotechnology
• COE data proteciton convention
• EU law EU charter
general legal prinicples in the ifield of health care
• dignity intergirirty
• eq treat
• privacy confidentiality
• equitable treatment and non disc
patient rights as human rights
• life and health (civil and social rights)
• non discrimination
• right to information and autonomy
• right to confidentiality(information) and privacy (wider concept physical)
** the centrality of human dignity, Immanuel Kan and humanism
• influence he has been incredibly influentiatl. Whilst everything has a
human price, the human has dignity and is priceless. Our conceptualisaiton
is based on the phil of Kant.




universal declaration of human rights
o dignity, upheld in all treatment, art 7 of ICCPR and art 3 of ECHR
states
! noone shall be subjected to tourture, or cruel or degrading
treatment or punishment.
Case Price v UK (2001)
o degrading treatment of physically handicapped in prison, the oucrt
found that it was so great the falling short that the treatment was
degrading to this woman. Principle it is not merely actions but
inactions that may amount to liability under this provison

Also in prisons and other insuttions
• all deprived of lierty, relevant for psychiatric.
Application of principle
• underpinning these rights is the concept of dignity, then the rights are
methods by which this is actually made possible.

human dinity and non discirimnation article 1
• parties and convention shall protect dignity, biology and medicine.
• there was a concern over the treatment of genetic anomolies. There were
genertic developments, and how these could be used to discriminate
specific groups of people.
• Parties to this Convention shall protect the dignity and identity of all
human beings and guarantee everyone, without discrimination, respect for
their integrity and other rights and fundamental freedoms with regard to
the application of biology and medicine.!Each Party shall take in its
internal law the necessary measures to give effect to the provisions of this
Convention.
Explanatory report to the biomedicine convention

the birth of the concept of self determination in healthcare
• medical paternalism, has a long history in the healthcare sector.
medical research
• article 7 http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
• No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without
his free consent to medical or scientific experimentation.
nuremberg medical trial after WWII oct 1946 aug 1947
• the trial documented murders, cruelty torture, and other degrading
treatment as a result of the experiment.
• The nazi doctros medicial killing and the psychology of genocide 1988
informed consent
• informed consent seen as a kind of last defence, for the individual
• lack of trust in the medical prof, after WWII resulted in strict regulation of
medical research based on informed consent form the human subjet.
medical treament and informed consent
today protection form individual autonomy as the legal starting point
today:protection individual autonomy as the legal starting point
• human dignity protected through the protection of individual autonomy.
There must be good reasons for the exceptions.
biomedical convention article 5
• intervention in the health field with the free and informed consnent after
they have been given appropritea information to the purpose and nature of
the internvention and the conseqeuences and risks.
norwegian patient rights act
• 4-1
• health care may be given only on the basis of the consent to fhte patient
unless a particular law or other legal basis provides an exception



if they are not able to understand the content of the consent. These are
similar in other countries

the relevance of intervention
• the concept of consent, can be given in different ways, if there are serious
concerns. If it is a procedure of transportation, and other things there will
be written consent.
• there are serious questions where there are more serious measures, if
it is an expereimentation, done with people who do not completely
understand the risks you can talk about the requiremnts of disclosure
and consent necessary.
the right to privacy
• ECHR art 8- this is not an absolute human right, unlike the right to
consent etc. It is about reasonable procedures by the state. They must
regulate these exceptions.
• 1. Everyone has the right to respect for his private and family life, his
home and his correspondence.
• 2. There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in
a democratic society in the interests of national security, public safety or
the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others.
Relevance to autonomy
• It also covers physical interventions is an intervention on the private
sphere of the individual. This is touching upon you.
Pretty v UK (2002)
Stock v germany 2005
glass v UK
Jehovas witnesses of moscow v Russia 2010
• art 9 and 11 ECHR
Pretty v UK
• facts
o 43 year old woman, with neuro denegenerative disease effected
physically but mentally clear. She requested to end her life with the
help of the husband, is it a violation of privacy to reject her.
o argument was that
! privacy violation
! it was torture
• holding
o torture
! it was not actve, it was her own illness that caused her pain.
o Privacy argument
! More complex discussion, it stated that the essence is the
respect for dignity and freedom. It was undignified for her
to be in that state. The court further held that in more
sophistocation, many people are concerned that they be



forced to live on with physical mental decreptitude, should
not be required to live on.
! nonetheless, this is necessary for the protection for the
rights of others, and that there is to be no violation of art 8.
! Doctors were able to stop ending her life. There are
justified policy grounds to maintain this.
Policy consdieraiotns
o the state had an interest in maintaining a prohibition in not ending
lives in these circumstances.
o http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=00160448#{"itemid":["001-60448"]}

Storck v Germany (2005)
• involuntary confinement in psyc hospita from 1977 to 1979 without a
court oder was a violation of art 8. In accordance with the law.
• all compulsory interventions raise serious concern over art 8.
• there was no breach of individual liberty
o it was justified to keep them institutionalized. But the court
authorities must follow proper procedures. They need a court order
for this purpose. To be legal they require very strong
justificaitons
Glass v UK (2004)
• facts
o child treated against the will of the mother.
o there was basically no free or informed consent because the mother
declined on behalf of the child. She clearly withdrew consent. The
court decided that the will of the mother should be taken into
account.
Jehovas witnesses of Moscow v Russia (2010)
• facts
o JW of M have approaches to medical treatment, in blood
transfusions they reect this on moral grounds.
o personal autonomy, these are important principles, interpretation of
the guarantees. They refer to the pretty case.
o The ability to take their life in their own choosing. They may
refrain from engaging in activities that are perceived to be
dangerous and risky. Non treatment with the prospect of death
within the personal autonomy of the treatment.
o the imposition of medical treatment, without the consent of the
medical would nifringe on integrity and be in breach of art 8 of
the convention. Autonomy.
the link between the case
• of the children, if they were in threat of death, would it be the same
outcome. Parents are not allowed to be deniedtreatment on behalf of the
childs best interests.
• it is sometimes not clear what the best interests of the child is in denying
treament.

read some of these cases.
restrictions on privacy liberty or autonomy –the extent to which these are absolute
values
• 8.2 liberty and privacy are not absolute rights, interferance in the interests
of national secrity, freedoms of others. If the state wishes to mmake
exceptions they must define it within the exceptions whichare outlined in
these probsions.
• We see this in ‘people of unsound mind’ who are seen to be dangerous.
Privacy or liberty violations.
interesting case**
Enhorn v Sweden (2005)
• detetion of a person who is infested by HIV,
• issue; in violation of the right to liberty? Was the state permitted to restrict
individual liberty to protect other people form society.
• if a person transmits to another erson is that a ciriminal offence? Of GBH?
This is one queston
court held
• the 19yo man with whom he had intercourse, there is no indication that he
intended to do this, it would have been a criminal offence.
• rationality
o was this person that dangerous? Compulsory isolation of the
applicant was a last resort. This was a last resort measure.
Because other measures need to be taken? The order of the
application, for 1.5 years in total, the authorities failed to strike
a balance between liberty and the
• held
o he didn’t know that he was acutlaly infected, he didn’t infect
anyone else?
The right to information
• this is one of the most violated rights, they are often not given specific
information, or appropriate.
Trocellier v France (2006)
• information
• states are obliged to adopte ‘necessary measures’ and inform patitents
before hand.
• principle; the patneitn cannot give meaningful consent without proper
information of the procedures.
privacy and confidentiality
• article 8
o information about you is part of your identity that you should be
able to contorol. This confidentiality, is important to trust the
medical profession.
o it is possible in some circumstances to disclose information

!
!

this must be regulated however. In Z v Finland (1997)
court of appeal judgement, [look at the conclusion]

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.

Lecture III 24 march
Facts
• more people will become disabled
• more people will be affected by illness because of old age
• developed states education affects disabilties, education is important. This
is a significant factor in this group.
• they are likely to be unemployed, and other social barriers.
The rights framework
• ‘all humans are born equal’ the normative values embedded in the
instruments.
Art 2 UDHR
• Disability will be included in this

ART 1.1 CRPD
• Purpose is to promote, protect and ensure the full and equal enjoyemen of
all human rights and freedoms.
Non discrimination
• What does this mean in the context of disability? Does thi mean equal
treatment, or is it more about creating specific opportunities for them.
The approach of the EU court, their decisions are insightful in this regard.
• Different treamtntt
• object and reasonable justification for different treatmet
non discrimination and disability
• in 2009 the court added disability to a list of suspect grounds of
discrimination. The ‘margin of apreciaton is greatly reduced in cases on
grounds of disability glor v Switzerland.
Non discrimnation and reasonable accommodation
• Principle when states fail to treat differently persons whose situations are
significantly different, they have a duty to provide services to persns who
are disadvantaged. These measures are intended to be within state
obligaitons.
It is not about treating people in the same way, but reasonable consideration for
differences.
• Equality in outcome. Accommodation for differences.
Price v UK (2001) note this case
• Facts
o She was treated differently in prison, and was heavily disabeled.
The failure to accommodate for these measures, constituted
degrading treatment.
o the norwegian judge Greve in referring to thlimmenos stated that it
amounted to discrimination. In addition to degrading and
inhuman treatment.
• Principle
o There were two grounds on which compensatory measures were
justifieid.
Article 2 CRPD
• discrimination on the basis fo disability means any distinction exclusion
onr restriction on the bais of disability which has the purpose or effect of
impairing or nullifying the recognition enjoyment or exercise, including
denial of reasonable accmodation.
What are positive measures required by states. Article 5.3 CRPD
• States shall take all appropriate steps to ensure that reaonsbale
accommodation is provided.
The right to healt
• biomedicine convention art 3
o parties take into account available resources and health needs,
shall atake appropriate measures with a view to provison
jurisdiction equitable access to health care of appropriate quality.
• Principle it is about a general right to health. And state obligations, on
grounds of equity.
What is a ‘fitting standard’?

in the explanatory report of the biomedicine convention, healthcare must
be of a fitting standard. In light f scientified pogress and subject to a
continuous quality assessment.
• principle to fit the standard the state has to accommodate for different
groups.
EU charter of fundamental rights article 35
• Everyone has the right of access to preventative health care, and the right
to benefit form medical treatment. A high level of human health.
EU charter of fundamental rights art 21
• prohiition of discrimination on the grounds of sex or disability. Principle
it is specifically mentioned in this charter. Therefore they should all be
guaranteed for the enjoyment of health care and union policies, for all
segments of society.
EU charter of hun rights art 26
• union recognizes the right to benefit from measures designed to ensure
their independence social and occupational integration in the life of the
community, recognizing the independence and autonomy. They are the
responsibility of the union.
In practice however what are the physical barriers
• physial accessibility to buildings
• transport
• accessible information
• stairtypes and negative attitudes
• they are often denied medical care, more often than others.


Art 12 ICESCR and the AAAQ article 12.1
• basic principle, right to health that everyone has the right to the highest
attainable standard of physical and mental health.
• principles that the states must live upto in recognizing the right to health,
free clean air, water etc.
o available
o accessible
o acceptable
o quality
• basic requirments must be fulfilled.
article 23 CRPD
• there is a provsion take all appropriate steps to ensure access for persons
within disability to health services. Gender sensitive, provide range quality
and free or affordable health care.
• population based public health programs.
• Principle this goes beyond what is expected for non disabled persons.
Inorder for the same quality of life to be expreinced there must be positive
measures take. Discriminatory denial of health care and services.
Awareness and stereotypes
• there are obligations imposed in raising awareness throughout society
including at a family level.
Access to faciliites 9.1 CRPD
• transportation, information, physical environemtn

9.2. States Parties shall also take appropriate measures to:
• Develop, promulgate and monitor the implementation of minimum
standards and guidelines for the accessibility of facilities and services open
or provided to the public;
• Ensure that private entities that offer facilities and services which are open
or provided to the public take into account all aspects of accessibility for
persons with disabilities;
• Provide training for stakeholders on accessibility issues facing persons
with disabilities;
• Provide in buildings and other facilities open to the public signage in
Braille and in easy to read and understand forms;
• Provide forms of live assistance and intermediaries, including guides,
readers and professional sign language interpreters, to facilitate
accessibility to buildings and other facilities open to the public;
• Promote other appropriate forms of assistance and support to persons with
disabilities to ensure their access to information;
• Promote access for persons with disabilities to new information and
communications technologies and systems, including the Internet;
• Promote the design, development, production and distribution of
accessible information and communications technologies and systems at
an early stage, so that these technologies and systems become accessible at
minimum cost.
o
multiple discrimination
• Principle; there could be accompanying factors that cause discrimination.
Sex, origin, sexual orientation, women.
• Different forms of discrimination must be viewed together.
Article 6 - Women with disabilities
• 1. States Parties recognize that women and girls with disabilities are
subject to multiple discrimination, and in this regard shall take measures to
ensure the full and equal enjoyment by them of all human rights and
fundamental freedoms.
2. States Parties shall take all appropriate measures to ensure the full
development, advancement and empowerment of women, for the
purpose of guaranteeing them the exercise and enjoyment of the human
rights and fundamental freedoms set out in the present Convention.
Mental disability (illness)
• Mental illness
o
• intellectual impairments
• dementia and alzheimers
• institutionalisation and violations of autonomy
council of Europe
• recommendation 10 on the protection of the human righs and dignity of
persons with mental disorder

o non binding legally but it does reflect a European consensus on
normative best practices. The fitting standard allows for
flexibility in interpretation.
o There is a detailed critera which exists in this.
• Article 5 of the EU convention
o right to liberty
o allows deprivation of liberty including detention of persons of
unsound mind.
• Important case Winterwerp v the Netherlands**
o principle; the interpretation of the standard of deprivation of
liberty. These requirements can be applied to the fitting
standard. In regard to restricting individual lberty.
! unsound mind
! true mental disorder with medica expertise
! actual state of the mental health of the person
! the person’s condition must be of kind or degree warranting
compulsory confinement necessity and proportionality
! continued detention must be justified
! appropriate condtions ofr the detained person
" for example if there is no treament specifically for
them, it will not be justified.
Institutional challenges
• compulsory admission for people with intelletual deficiencies
• overcrowded
• physical restraints
• overuse of sedatives
• violence
• comp medical treatment
• control systems
• lack of respect for privacy and autonomy.
Art 3 CPRD main principles
• main rule; respect for inherent dignity including ones own choices.
Who is capable?
• once declared to be incapable does not mean forever incapable.
• national law must regulate when something is appropriate and in order to
violate liberty and privacy.
• what are the limits
o despite being declared incapable, this doesn’t mean it lasts forever.
o decisional capacity at the time of the intervention is decisive
o indiivudal assessment of mental capacity
legal capacity art 12 CRPD
• states shall recognize that persons enoy legal cap on equal basis and all
other areas of life.
• appropaite measures to provide access to the support they may require in
exercising their legal capacity.
Diabeties
• medical interventions, informed consent,principle merely because a
person is disabled it doesn’t mean that they cannot give informed consent.
• principle informed consent is not dependant on disability

• disability does not necessarily mean non informed consent.
Support decision making, underpinned by the principle of autonomy. This is
nonetheless violated quite regularly.
• principle this is a way of getting around this problem of informed consent.
If the docor evaluates the patient and they are able to understand, but need
to be informed, then they may be given supported decision making.
• article 25
o support, flexibility and max pres of deision making capacity. Free
and informed consent to medical treatment.
• Children
o are also allowed to
o http://www.mdac.info/sites/mdac.info/files/English_Supported_De
cision-making_An_Alternative_to_Guardianship.pdf
case note
• shtukaturov v Russia (2008)
o facts; legal incapaition of the applicant violated rights to a fair
trail, and respect to private life. Incapacitation without court review
also violated the right t liberty.
o law applied, art 8, requires; tailored made response to the ind or
degree of mental disorders in question with regard to legal
incapacitaiton orders. (the decision maker must make a tailored
deicison, if this flexible consent doesn’t make them capable then
proxy consent must be provided.
• Principle
o If a patient is uncapable of consenting an alternative tailored
approach must be taken, and proxy should be used as a last resort
applying article 6.
Article 6
o In seeking to protect unconsenting adulst
! Direct benefit, proxy consent, information and
participation.
! information and participation.
o Intervention in the health field
! Can only be taken into account direct benefit. Therefore
the intervention has the onus of proving that they will
directly benefit the patient. It is protection of the best
interests in a paternalistic sense, compared to the child
rights convention. Comparing it to ECHR 8.2 necessity
and proportanility, this standard is much stricter. The best
interest of the person must clearly outweigh expected or
possible harms.
Proxy consent
• Where according to law, an adult does not have the capacity to consent
because of a mental disability. This intervention may only be carried out
with his or her representative, provided by law for example. Different
countries will have different regulations, this is within the frame of the
biomedicine convention.
What are the limits
• Domestic law must specify the reaosns for depriving the person of the
right to consent

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


needs to be effectively implemented to positively induce engagement in
making decsions.

Thlimmenos v Greece (2000)
discrimination
• difference treament, without objective and reasonable justifiiecation,
whose situations are significantly different.
Acceptability
• culturally and ethically appropatie, gender and lifecycle requiremnts.
• they must be designed to improve health statuts, CESR
• for old people
o specifically designed
o knowledge
o and awareness of typical symptoms that define this group and
induce lack of access.

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.


1999 PHD thesis,what is health as a right?
• Right to health care, too narrow
• right to highest attainable standard of health, broader
• right to protection of health, art 11 eu social charter, brother on the EU
convention of CPR.
• right to health, this is the term that is currently used most commonly.
where is it located
• at the UN
o 12 ICESCR, brother of civil and political rights in 1966
o 12 CEDAW women
o 24 CRC children
o 25 CRPD
o 28,43,45 MWC
o 24 CSR
o 25 ILO 169
ratification
• ICESCR, they have a problem with economic and philosophical basis.
There are millions of uninsured persons, it has not ratified the treaty.
Regional level
• EU



o art 11 Eu Social Charter
o Art 3 Biomedocne convention
o 35 EU charter on fundamental rights (constitution) this is a moot
point of interpretation
Africa

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





FIDH v france, migrants
marangopoulos v Greece, miners
ERRC v Bulgara gypsies
INTERRIGHTS v Croator (AIDS descrimination

State approaches in different courntires
• treatment and action campaign CCT8/02
• if you had HIV and were pregnant, then the baby wouldn’t contract Aids.
The government only decided to use this in certain treatment centres. This
was seen to be an outright disaster. They were wholly rejecting this
approach. The constitution has jurisdiction, the constitution is
enforceable in the state. There was a rejection of the core, min services.
• issue was the right to health violated
• held; that there was indeed a violation, of this right because they should be
more dispursed.
public health perspective
• mackintosh and koivusalo
o there has been research undertaken in this area. The more that
govenrmetns invest in heatlh care, the better funds.
o greater exclusion of children from treatment when ill when higher
primary care commercialization.
o the states duty to protect,
• human rights law, and the indirect
• responsibilities of states
o neutral, yet, the human rights perspective can have serious human
rights consequences. We have seen this in public health research, it
may lead to worse outcomes for people.
• Economic accessibility
o ensuing that these services are affordable for all
• obligation to protect
o to ensure that it does not constitute a threat to accessibiiity and the
quality of health facilities goods and services.
If you are a state, then how can you examine the consequences of these
privatization efforts? Basically apply the AAAQ
• will it lead to more efficiency?





enhance the accessibility
o private health companies are heavily regulated by the government.
Ie they must accept all patients. This is incredibly important.
acceptability
o protection of data, will it still be protected. They do not necessarily
have an interest in protecting this data.
What are the effects on the quality of the care, ie if they are outsourced to
staff in private facilities. Do they receive adequate training.

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.

• Deciding on your health staus, it may be worse.
What constitutes health
• Genetic 30%
• behaviour 40%
• health care 15%
life expectancy
• college teachers, 82
• civil servants
• Machintach,
Capabilities approach,
• benkatapuram four dimensons
• WHO closing the gap in a generation,
o Sir Michael marmot, purring the right remedial differences and
within countrie , is a matter of social justice.
issue; how to approach this from the perspective of human rights
• from a normative perspective, what standards should be required based on
human rights law. Education
• what is she trying to sya
o underlying determinants, social determinants, there are similar
things,
o health care,
how does she deal with this
• it is a conjucntive approach, the right to housing, education, right to
health, housing conditions. What are the major determinants
the homework of checking the abortion legislation in the country.
Right to a safe and healthy environment?
Universal declaration of human rights art 1
• policy it is a liberal philosophy connected to the individual endowment of
reason. This is linked to an informed decision.
What is the relevance of reason?
• there are many groups including children who don’t really have the
capacity to reason. We don’t expect them make informed decisions about
healthcare issues.
adults and children, who are not able to express their opinons, or older children
who don’t have the legal capability to make legally binding decisions. Adults
with severe mental disabilities
• are anoher vulnerable group if they are also endowed with a physical or
mental disability. There are many different health problems that arise later
in life.
the concept of self determination is challenged if
• principle, it is not that they put themselves at risk but that they don’t know
the extent to which they are putting themselves to risk.




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 don’t 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 don’t want it to be too expensive
• economic interests
• personal interests in representing the authorities
indivdual doesn’t want treatment
WWII




removed brains of the dead psychiatric patients
they removed them and stored them for research interests, this was not in
the interests of the patients and the relatives. This is an example where
research interests and society conflicted with the patient and the relatives.
There was a huge discrepancy between these two particular interests.

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 didn’t want them to treat them. This may was in the centre of an
apartment with nursing home,who didn’t 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 didn’t have great health.
Need for protection against own bad judgementd


Rule of law as a protection against abuse of power
• goal; of rule of law is about minimizing risk of abuse of power by
authorities.
• principle is that individual must give informed and free consent to
interferance with personal matters, or it must be based in law.
o therefore citizens must await for the legislators to give them a
legal basis to interfere int eh personal lives of the citizens.
patients not capable of consent –protective elements for vulnerable people. These
measues ensure that abuse of power does not occur.
• all interferance must be based in law
o legislation
o rule of necessity for unforeseen situations
o duty of care, a duty to render help if needed and not rejected
• if anyone should be granted the possibility to consent on behalf of
someone else that too must be based in law.
lecture II
patient
medical professional
• informed consent- duty to collect
• information – duty to give
• confidentiality- duty to ensure
necessity
• if the patient says they don’t want the treatment, then there must be a legal
basis to acuire the treatment. Unless there is a legal basis.
• in the norwegian case, there was necessity argued. If they didn’t have this
they would die, it was also about protecting other patients in the nursing
home. If he wansnt there, in the woods then the outcome may have been
different.
information
• you cannot withhold information, but you cannot not tell.
confidentiality
• he or she must know everything. If this was the case in all cases
## what is the core issue??
where the child or the patient cannot give consent? The new issue is ;who should
give consent? Should they both get information? Should their interests outweigh
the childs?
unique characteristics that distinguish children from adults
• everyone who is a child has a legal guardian. You don’t need that as an
adult.
types of rights
• indivudual rights



o the right to act or not act, to be protected from other peoples
actions
protection rights
o likewise they have a right to be protected by someone else’s
actions. This is done by custody.

The ramifications of custory
• principle; only if you have custory over the child can you make a decision
on their behalf. This is not linked or relatd to biology.
• duty to act: the custory holder can act in all matters concerning the child
unless made by law.
• duty to care: for the child in the home and outside the home, they must
seek medical care if this is available. It is about making a decision, and
allowing discretion, it must be in the interests of the child. If you don’t
care for them, they can be removed from the home.
Overall legal framework
• the Oviedo convention [on human rights and biomedicine]
• covers individuals undergoing medical treatment or who are participating
in medical experiements.
• UN convention of the rights of childthe EU conv on Human rights
• everyone including children
when the parent give consent on behalf of the child
• art 6(2)
• art 6(2)
• sec 4-4
• UNCRC art 12(1)
Progression
• to the rights o fhte child,
• in Norway, and Iceland there are fixed age limties.
o at age 16 they can give informed consent
o aboove 12 can offer opinion on matters concerning their health.
• Age 15
o In denmark this is the age, and it is the age
the parent giving informed consent on behalf of the child
• principle the partent or guardian is given the same access to information
about the risks and benefits of the treatment as the child. Because eiwhtout
this informed consent cannot be made.
what about the child’s right to confidentiality, and privacy
• UNCRC 16(1) right to privacy
• ECHR art 8 ight to Privacy.
in Norway
• s 3-4 of the Norwegian patients rights act
o is the patient 12-16 information for reasons that must be respected
does not want this
o infomration is necessary in ordert o fulfill the parental
responsibilities the information is to be given regardless o fhte

childs wishes. Thus there is a limitation. [compare this to
denmark where it is all information that is given or needs to be
given]
o it cannot be promised to the child that they have a right to
confidentiality, because it is linked to a more fundamental
concept of parental responsibility. Everyone regardless of age
can be informed about contraceptives confidentially.
in a case
• there is informed consent, as the custody holder for someone to
receive treatment.
Next issue
• there are limitations of the capacity for the adult to consent to certain
matters, there are certain apparent boundaries.
o ECHR art 8 – everyone has a right to respect for his her private
family life
o ECHR art 9 – everyone has the right to freedom of thought
consnience and religion
• ENCRC art 3
o all actions concern children whether undertaken by public or
private social welfare institutions courts of law administrative
authorities or legislative bodies the best interests of the child
should be a primary consideration, health specific boundaries.
What is therefore the best interests of the child?
o

Sponsor Documents

Or use your account on DocShare.tips

Hide

Forgot your password?

Or register your new account on DocShare.tips

Hide

Lost your password? Please enter your email address. You will receive a link to create a new password.

Back to log-in

Close