The health and human rights movement: progress and obstacles

There is a new maturity about the health and human rights movement as it endeavours to integrate human rights into health policies at the national and international levels. In addition to the traditional human rights techniques, such as "naming and shaming", the movement is also using new approaches such as indicators, benchmarks and impact assessments. However, it is confronted with a range of major obstacles and this article focuses on two of them: the inadequate engagement within the health and human rights movement of (i) established human rights non-governmental organisations and (ii) health professionals. This article argues that established human rights non-governmental organisations should work on health and human rights issues, such as maternal mortality, just as vigorously as they already campaign on disappearances, torture and prisoners of conscience. Also, it emphasises that health and human rights complement and reinforce each other. Nevertheless, many health professionals have never heard of the right to the highest attainable standard of health. The article argues that there is no chance of operationalising the right to health without the active engagement of many more health professionals, and it makes some preliminary observations about steps that might be taken to deepen health professionals' engagement in the health and human rights movement.     

The statue of security: human rights and post-9/11 epidemics

Following the attacks of September 11, 2001(9/11), there have been increasingly divisive proposals for Americans to sacrifice liberty for safety. "Health and human rights" provides a much more constructive and effective framework than fear on which to base both routine public health actions and responses to public health emergencies. This can be illustrated by the failure of bioterrorism-based government initiatives at both the state and federal levels since 9/11, as well as the worldwide response to the post-9/11 SARS epidemic. Effective public health work can only occur with a population that trusts its public health officials. 9/11 can serve as a catalyst to reform public health by adopting the health and human rights framework that can move it from a fragmented state and local activity to one that is federal and coordinated, and ultimately one that is global and based on transparency, trust, science, and respect for human rights.     

Determining health care rights from behind a veil of ignorance

Should our society establish positive rights to health care that each citizen could claim, as many health policy analysts believe? Or should it provide only background rules of contract and property law and leave the provision of health care to the free market, as Richard Epstein advocates in Mortal Peril? In this article, Professor Korobkin argues that this question should be addressed from the Rawlsian "veil of ignorance" perspective. That is, the question should be answered by asking what kind of society would individuals agree to form if they had no knowledge of their individual skills or endowments; if they did not know whether they were rich or poor, healthy or sick, weak or strong. Professor Korobkin contends that individuals behind such a veil of ignorance would balance their inherent risk aversion (which favors a safety net of "rights") against the inefficient incentives created by rights regimes that would reduce net social wealth (which favors a free market). Whether they would choose to establish rights to health care or not is ultimately an empirical question that turns on how inefficient any particular right would be. The question thus requires a case-by-case analysis of proposed rights. The article then considers the policy issues of (1) community rating of private health insurance and (2) the mandated provision of emergency medical care. It concludes that in these cases the inefficient incentives created by establishing rights are probably smaller and/or controllable enough to lead individuals behind the veil of ignorance to favor a regime of positive rights.     

Health and human rights: challenges of implementation and cultural change

The author identifies the evolution of discourse about human rights to health in medical law, health law and public health law, as well as in major international instruments. He emphasises the importance of General Comment No 14 on Art 12 of the International Covenant on Economic, Social and Cultural Rights. He argues that its breadth but also its specificity in terms of accountable benchmarks and measures of health service provision are likely to frame discourse on "rights to health" in the succeeding years. He identifies the need for translation of the rhetoric in such instruments into meaningful and patient-informed data so that it becomes possible to compare and contrast advances (or otherwise) in rights to health within and among different countries.     

The future of public health law

Developments in medicine and constitutional law dictate modification of public health legislation in the United States. Traditionally overlooked by legislators, present public health laws provide inadequate decision-making criteria and inappropriate procedures for dealing with issues. Revised legislation should provide health care officials and agencies with the tools to balance individual rights against public health necessities. This Article makes four recommendations for legislative reform: (1) remove artificial legislative distinction between venereal and other communicable diseases; (2) provide criteria defining "public health necessity" to limit discretionary exercise of police power by health officials; (3) provide strong confidentiality protections in the collection and storage of public health information; (4) empower public health officials to select from a graded series of less restrictive alternatives in dealing with public health problems.     

A bad trip for health-related human rights: implications of Momcilovic v The Queen (2011) 85 ALJR 957

Momcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a specific State human rights law, the High Court judgments allude to significant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.     

Abortion in Australia: access versus protest

Currently in Australia anti-choice protesters' right to freedom of speech and freedom to protest is privileged over a woman's right to privacy and to access a health service safely, free from harassment, intimidation and obstruction. This article considers how this situation is played out daily at one Victorian abortion-providing clinic. The Fertility Control Clinic was thrown into the spotlight after the murder of its security guard by an anti-choice crusader in July 2001. Australian common law appears not to offer women protection from anti-choice protesters. By contrast, United States and Canadian "bubble" legislation sits comfortably with key constitutional rights. It would be a useful development if Australian governments passed legislation to ensure the rights, wellbeing and safety of Australian women accessing health services. Such legislation would be another step away from the misogynistic and androcentric values once central to our legislative framework.     

The conflict between the ethics of th individual and the ethics governing public health: practical sustainability of health care in jeopardy?

The "health rights movement" has reconstructed the clinical relationship between health care workers and patients by simultaneously demanding more from traditional medical care and challenging the perceived power differential between doctors and patients by rejecting the paternalistic medical model in favour of an individual patients' rights model. However, the growth in individual expectations of a right to health care creates a potential conflict with the ethics that prioritise public health and guide the rationing of its limited financial and human capital resources. This, in turn, creates a practical dilemma which requires public health institutions to become service orientated while sacrificing their integral role in training and educating the medical workforce and potentially compromising the practical sustainable delivery of public health in Australia. However, the law can play a role in resolving this conflict through legislation, regulations, codes, administrative law and common law in an effort to ensure the quality and future sustainability of public health in Australia.     

Brief for 885 law professors in support of maintaining adherence to the Roe decision

This brief opposes the overturn of "Roe v. Wade" and resists weakening "Roe's central holding" that would allow states to overturn legal abortion. The brief was written for 885 law professors. "Roe" was not a "constitutional aberration," or "an exercise of raw, judicial power." Some members of the Supreme Court seem to think that the state has "an overriding interest" in protecting fetal life. Some Court members have questioned "Roe's" trimester framework. A person's decision to abort should be done privately. If women are not free to choose abortion, they will not have equality. There is an absence of "express rights of privacy and procreational freedom" in the Constitution. "Roe" was 1 instance of the Court's recognition of constitutional rights that are not named explicitly. Historical materials are drawn on to show the link between trends in society and the "judicial recognition of unenumerated rights." The most serious questions about "Roe" deal with its trimester framework. Justice Blackmun's majority opinion said that the 1st trimester of pregnancy was personal. "Roe" said that abortions created a medical risk at the beginning of the 2nd trimester. Therefore, the government was more interested in the health of the mother at that time. The state could then regulate abortion "in ways that are reasonable related to maternal health." The start of the 3rd trimester was when the fetus was viable. The right of a woman to end her pregnancy "offends powerful moral forces." Some of "Roe's" critics had their scientific facts wrong. Medical authorities think Justice O'Connor is mistaken when she says that "Roe" is "on a collision course with itself." The 23rd to 24th week of pregnancies where the fetal organs can "sustain life outside the womb." This has not changed since "Roe" was decided in 1973, nor is it likely to in the future. Some "amici" believe that the state can never have an interest in the fetus. The state can not have an interest in the fetus distinct from the woman who will give birth to it. During previability, restricting a woman's procreational rights would not be scientifically supportable. The state does have an interest in "upholding the value of human life." "Roe" is "within the mainstream" of constitutional jurisprudence and should be reaffirmed.     

What is the goal of access to health care?

This article first examines the justifications for the goal of access to health care and the variations between health systems in their endorsement of individuals' rights to health care irrespective of income, ethnicity, age and other characteristics. It then examines the meanings of the goal of "access" to health care and considers four key dimensions--service availability ("having" access), service utilisation ("gaining" access), the relevance and effectiveness of services and equity of access. These dimensions provide a common framework that can be applied across countries and health systems and employed to assess the extent to which access to health care is actually achieved.     

Physicians' "Right of Conscience"— Beyond Politics

During the past few months, the discussion over the physicians' "Right of Conscience" (ROC) has been on the rise. The intervention of politics in this issue shifts the discussion to a very specific and narrow area, namely the "reproductive health laws" which bear well-known predisposing attitudes.
In this article, the physician's ROC is discussed in the context in which it naturally belongs: the Patient Physician Relationship (PPR). I suggest that the physicians' rights demand is a comprehensible, predictable, and even inevitable step as part of the "evolution" of the PPR. Thus, the most appropriate way to comprehend and tackle the demand for physicians' ROC is within the context of medical professionalism. While searching for practical solutions to the "reproductive health" problems, there is a need to recognize the ethical and practical implications of the change in the PPR and balance between patient and physician rights.     

Dr. Jekyll's waiver of Mr. Hyde's right to refuse medical treatment: Washington's new law authorizing mental health care advance directives needs additional protection

Mental health care advance directives are gaining popularity nationwide. Following a growing trend, the Washington State Legislature has recently passed a law allowing patients to draft mental health care advance directives that could be irrevocable. Patients who sign an irrevocable directive essentially waive their fundamental right to refuse treatment in the future. The United States Supreme Court has held that waivers of fundamental rights must be made knowingly, voluntarily, and intelligently. However, as passed, Washington's new law contains insufficient safeguards to guarantee such a waiver. This Comment proposes that the Washington State Legislature amend this law the require two additional protections: a "rights advocate" to explain the potential waiver of rights, and a written warning in the advance directive form. These safeguards will help ensure that patients make knowing and intelligent waivers of their fundamental right to refuse treatment.     

Condliff v North Staffordshire Primary Care Trust: can human rights redress inequities in United Kingdom and Australian cost-containment-driven health care reforms?

A recent case from the English Court of Appeal (R (on the application of Condliff) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910, concerning denial by a regional health care rationing committee of laparoscopic gastric bypass surgery for morbid obesity) demonstrates the problems of attempting to rely post hoc on human rights protections to ameliorate inequities in health care reforms that emphasise institutional budgets rather than universal access. This column analyses the complexities of such an approach in relation to recent policy debates and legislative reform of the health systems in the United Kingdom and Australia. Enforceable human rights, such as those available in the United Kingdom to the patient Tom Condliff, appear insufficient to adequately redress issues of inequity promoted by such "reforms". Equity may fare even worse under Australian cost-containment health care reforms, given the absence of relevant enforceable human rights in that jurisdiction.     

Mental health and human rights: the role of the law in developing a right to enjoy the highest attainable standard of mental health in Australia

Article 12(1) of the International Covenant on Economic, Social and Cultural Rights requires governments to recognise "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". However, the traditional focus of mental health laws on the treatment and detention of those with low-prevalence serious mental illnesses may have skewed resources such that the development of a right to mental health for all individuals with mental illnesses has been stymied. In Australia, a number of inquiries and reports have found that while legislation has been changed to comply with human rights principles, access to mental health care and follow-up post-hospitalisation need critical attention. This article outlines a five-year project aimed at exploring how mental health laws can help develop and support a right to enjoy the highest attainable standard of mental health.     

Arguments in Favour of a Functional Theory of Fundamental Rights

The article suggests a relational concept of fundamental rights.This concept enhances the «functional» rôleplayed by some of the rights in the system of a state governedby the rule of law, rather than an ethical universality or asubstantial content coinciding with any list of «human»rights. Fundamental rights belong to the fundamental (ideal, substanticeand normative) criteria of recognition/selection of actions and normain the institutional/normative practice of a legal order. Given thispremise, the work analyses some relevant issues: universal-fundamentalnexus, property rights, liberty rights, social rights. Fundamentalrights refuse any rigid classification which identifies anddistinguishes among them on the basis of their fixed doctrinal structure: universal rights vs. non universal ones, property vs.liberty rights, social rights as rights to state services. Theseclassifications miss the real point about fundamental rights,which are to protect interest and values of individuals sociallydeemed worth of the best legal efforts in the most effective approach.     

Criminal law and HIV/AIDS: strategic considerations

Richard Elliott's paper on criminal law and HIV/AIDS, an edited and updated version of his presentation at "Putting Third First," sets out five guiding principles for criminal law policy and HIV/AIDS; briefly outlines the rationales for criminalization; discusses three strategic legal questions regarding the criminalization of HIV transmission/exposure; and offers a number of recommendations for consideration of those needing to articulate a well-considered perspective on the ethical, legal, human rights, and public health dimensions of the criminalization of HIV transmission/exposure.     

PERSONS WITH DISABILITIES AND THEIR SEXUAL,REPRODUCTIVE, AND PARENTING RIGHTS: AN INTERNATIONAL AND COMPARATIVE ANALYSIS

Despite important gains in human rights, persons with disabilities — and in particular women and girls with disabilities — continue to experience significant inequalities in the areas of sexual, reproductive, and parenting rights. Persons with disabilities are sterilized at alarming rates; have decreased access to reproductive health care services and information; and experience denial of parenthood. Precipitating these inequities are substantial and instantiated stereotypes of persons with disabilities as either asexual or unable to engage in sexual or reproductive activities, and as incapable of performing parental duties. The article begins with an overview of sexual, reproductive, and parenting rights regarding persons with disabilities. Because most formal adjudications of these related rights have centered on the issue of sterilization, the article analyzes commonly presented rationales used to justify these procedures over time and across jurisdictions. Next, the article examines the Convention on the Rights of Persons with Disabilities and the attendant obligations of States Parties regarding rights to personal integrity, access to reproductive health care services and information, parenting, and the exercise of legal capacity. Finally, the article highlights fundamental and complex issues requiring future research and consideration.     

The structure of basic human rights

This paper offers a theory of the structure of basic human rights which is both compatible with and clarificatory of the traditional conception of such rights. A central contention of the theory is that basic rights are structurally different from other kinds of moral rights, such as special rights, because of differences both in the way in which basic rights have content and the model on which basic rights are correlative with duties. This contention is exploited to develop and defend the central thesis of the theory, namely that basic human rights are bundles of mutually held active rights enjoyed by persons in virtue of the specifiable moral relationships they bear to each other.     

Rights and Quarantine During the SARS Global Health Crisis: Differentiated Legal Consciousness in Hong Kong, Shanghai, and Toronto

Interventions in public health crises inevitably give rise to concerns about how the balance between rights concerns and community health security might be handled. During the SARS global health crisis, different jurisdictions struggled simultaneously with similar public health challenges posed by the previously unknown and deadly disease. Yet instead of a convergence of strategies, different jurisdictions responded with measures, especially with regard to the use of quarantine, that revealed a pattern of divergence about how to strike the balance between rights concerns and health security. The origins of this article stem from the realization that Toronto's use of quarantine was far more extensive than that of either Hong Kong or Shanghai, two jurisdictions with historically weak records regarding respect for fundamental rights and civil liberties. Perspectives on the balancing of individual rights and community health security are treated here as expressions of legal consciousness. Instead of assuming a uniform legal consciousness in Toronto, Shanghai, or Hong Kong, this article presents legal consciousness as varied among groups of individuals differently situated in the crisis. The promise of this differentiated approach to legal consciousness is that it facilitates both drawing contrasts between perspectives of differently situated groups within the same city and noting commonalities between similarly situated groups in other cities. Through an examination of three distinct perspectives on rights and quarantine in each city—those of senior public health officials, frontline hospital workers, and contacts of SARS patients—the competing legal meanings and understandings about the tensions between community health security and individual rights during the SARS crisis are identified in a way that enables us to better understand the pattern of different uses of quarantine.     

Rights-based rights

Ronald Dworkin maintains that particular rights, like the right to free speech and the right to own personal property, can be derived from a foundational right, the right to equal concern and respect. This paper questions the tenability of this program for rights-based rights. A right is an individuated moral or political guarantee which confers a specified benefit on each right-holder and which resists conduct that would derogate it. For there to be rights-based rights, both the foundational right and the rights it implies must satisfy this definition. It is doubtful, however, that the right to equal concern and respect should count as a right since the benefits it confers are at best highly controversial and may not be assignable to individuals. But even if we grant that the content of the right to equal concern and respect can be satisfactorily specified, the status of the derived rights remains problematic. The trouble is that the relation between the right to equal concern and respect and the rights it implies parallels the relation between the principle of utility and the rights it may imply. Both of these foundational principles can extinguish derived rights. Consequently, rights dependent on either of these principles are not trumps, and their standing as rights is suspect. I conclude that Dworkin's method of defending rights is inappropriate for the most important of our rights though it may well serve for less critical ones.