Liberty: human rights and mental health

In this paper, Lord Phillips reflects on the present state of the law relating to mental health; he considers the place of the common law doctrine of necessity as the basis for the detention of patients; he reviews a number of issues arising from the jurisprudence of the European Court of Human Rights in Strasbourg and a number of recent decisions of the Court of Appeal. Finally, he considers the prospects for change in the law foreshadowed in the Government's White Paper on the Reform of Mental Health Law (2000).     

Public health and human rights

The editorial introduces the special issue of the journal that incorporates papers originally presented at the "Public Health and Human Rights" conference held at the Monash Prato Centre, Italy, in June 2007. It identifies the intersection between public health and human rights; access to health care services, particularly for marginalised groups such as indigenous peoples and persons with mental illnesses; and the role of international instruments in encouraging states parties to implement and monitor compliance with these rights.     

UNGASS review: reports show little progress on human rights

Reports tabled at the second annual United Nations General Assembly debate on the implementation of the Declaration of Commitment on HIV/AIDS suggest that not a lot of progress has been achieved and that many countries will not meet the commitments listed in the Declaration for the year 2003. The one-day session was overshadowed by the fight against terrorism. NGO participation was minimal.     

Public health and human rights: questions from an epidemic in Prato

This article uses Carlo Cipolla's account of the plague epidemic in Prato in 1630-1631 to identify several key questions in public health. The article goes on to observe that the underlying problems posed for public health by the plague epidemic in Prato are similar, in important respects, to those encountered in addressing contemporary public health concerns. Questions of inequalities in health and socio-economic differentials in mortality; the relationship between economic wellbeing and health; the relevance of access to effective interventions; the significance of knowledge concerning disease aetiology or uncertainty in devising and implementing appropriate interventions; and the role of regulation in controlling public health hazards are as relevant today as in the Renaissance. However, contemporary recognition of the right to the highest attainable standard of health has altered the nature of public health responses. Concern for individuals' and populations' rights to health can be seen to have the potential to inform policies for inequalities in health, for economic development in middle- and low-income countries, for access to health care and essential medicines, and for strategies to regulate and control emerging risks to health.     

The third way in mental health policy: negative rights, positive rights, and the Convention

Mentally disordered patients may be said to have rights in two senses: negative rights to freedom from arbitrary detention or interference with their person; and positive rights to expect a certain minimum standard of service, be that in terms of treatment as an in-patient, or as a patient in the community. The Labour government has appointed a 'scoping group' to carry out a root-and-branch review of the Mental Health Act 1983. The 1983 Act was mainly concerned with in-patient treatment. The group is to look at the scope for introducing further compulsory powers in the community, enhancing the rights of carers and relatives, and is to take account of recent British and Strasbourg case law. The primary impact of the Convention on psychiatric patients has been in relation to protection against arbitrary detention under Article 5, unsoundness of mind being one of the permitted grounds of deprivation of liberty under Article 5(1)(e). This article explores the potential impact of Convention rights in developing what Gostin referred to in the early 1980s as a 'new legalism'. The new legalism linked concern for traditional rights to due process and review by the courts or other external bodies with the 'ideology of entitlement' to adequate treatment and services. The article outlines the current policy context of mental health services and looks at the development by the European Court of Human Rights of positive Convention rights to services out of Article 5, whose purpose seems at first sight to be the protection of due process rights. It examines the relevance of Convention rights to community powers.     

Charter rights & health care funding: a typology of Canadian health rights litigation

Canadian health consumers have increasingly relied on the Charter of Rights and Freedoms to demand certain therapies and reasonably timely access to care. Organizing these cases into a 5-part typology, we examine how a rights-based discourse affects allocation of health care resources. First, successful Charter challenges can, in theory, lead to courts granting and enforcing positive rights to therapies or to timely care. Second, courts may grant a right to certain health services; however, subsequently government fails to deliver on this right. Third, successful litigation may create negative rights, i.e. rights to access care or private health insurance without government interference. Fourth, consumers can fail in their legal pursuit of a right but galvanize public support in the process, ultimately effecting the desired policy changes. Lastly, a failed lawsuit can stifle an entire advocacy campaign for the sought-after therapies. The typology illustrates the need to examine both legal and policy outcomes of health right litigation. This broader analysis reveals that the pursuit of health rights seems to have caused largely a regressive rather than progressive impact on Canadian Medicare.     

The safeguarding and foundation of human rights

Human rights, as legally understood, must be safeguarded. This presupposes a state of law. The safeguarding of human rights further presupposes an independent judiciary applying the law in a community with common values and aspirations. The foundation of human rights is an individualistic philosophy dependent on the respect for truth and the possibility for the individual to attain it. The respect for the dignity of the human person is the result of a long historical development from this starting point.Dedicated to Helmut CoingTranslated by E. F. Kaelin.     

Indigenous Australia and health rights

Over the last decade, there has been a significant shift in public policy in relation to indigenous Australians. The new policy frameworks have been marked by an antipathy towards a policy discourse based on a human rights framework. This has also been associated with a shift from an approach based on "self-determination" to one founded on the idea of "mutual obligation". This article describes these developments in detail and considers the implications for human rights discourse.     

Human rights and health law

Important statutory and common law developments are changing the landscape of health law in Australia. Human rights considerations are formally included amongst the factors to be applied in the interpretation of statutory provisions and evaluating the lawfulness of actions on the part of government instrumentalities. The Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) create limited bills of rights at State/Territory level in two Australian jurisdictions. Although neither is entrenched, they have the potential to make it more difficult for government to promulgate laws that are inconsistent with human rights, as defined. They will have important repercussions for the evolution of health law in these jurisdictions. The decision of Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85 by the Victorian Court of Appeal has also provided a legitimation for parties to incorporate human rights perspectives in submissions about the interpretation of statutory provisions where health rights are in conflict.