HUMAN RIGHTS Medical humanities II 2012-2013

Prof. Marija Definis Gojanović, MD, Ph.D.

Human rights violations

• Human rights violations occur when actions by state (or non-state) actors abuse, ignore, or deny basic human rights (including civil, political, cultural, social, and economic rights).

Substantive rights

- Right to life - Freedom from torture

• The prohibition of torture and inhuman or degrading treatment or punishment is absolute; such a fundamental right deserves no exceptions or limitations • Article 3 imposes a negative obligation - not to inflict torture, inhuman or degrading treatment or punishment • The article also creates a positive obligation - State must take measures to protect its citizens

• Broad term "ill-treatment" - cover both torture and other methods of abuse prohibited by international law, including inhuman, cruel, humiliating, and degrading treatment, outrages upon personal dignity and physical or moral coercion Declaration of Tokyo (1975), uses a briefer, less legalistic definition which omits the element of severity of suffering but which otherwise embodies the elements of torture

Cumulative conditions of detention can amount to ill treatment and in some circumstances to torture!

Methods of ill treatment may be both physical and/or psychological in nature!

• It is often difficult to draw a clear distinction between “mental” and “physical” torture

Substantive rights

- Right to liberty - Right to fair trial - Self determination - Freedom of speech - Freedom of though, conscience and religion - Right to work - Right to education - Minority rights - Group rights

Future generations

• In 1997 UNESCO adopted the Declaration on the Responsibilities of the Present Generation Towards the Future Generation.

• National security With the exception of non-derogable human rights, the UN recognizes that human rights can be limited or even pushed aside during times of national emergency • Relativism and universalism Relativists argue that human rights must avoid pushing the values of a single culture at the expense of others Universalists argue that human rights have always existed

The Human Rights Protection of Vulnerable Groups • Groups that are structurally discriminated against and groups that have difficulties defending themselves are: 1) women and girls; 2) children; 3) persons deprived of their liberty; 4) refugees; 5) internally displaced persons; 6) stateless persons; 7) national minorities; 8) indigenous peoples; 9) migrant workers; 10) disabled persons; 11) elderly persons; 12) HIV positive persons and AIDS victims; 13) Roma/Gypsies/Sinti; 14) lesbian, gay and transgender people........

Medical profession and human rights

•

“It is my aspiration that health will finally be seen not as a blessing to be wished for, but as a human right to be fought for.”

United Nations Secretary General, Kofi Annan

What is the link between health and human rights?

• There are complex linkages between health and human rights: - Violations or lack of attention to human rights can have serious health consequences; - Health policies and programmes can promote or violate human rights in the ways they are designed or implemented; - Vulnerability and the impact of ill health can be reduced by taking steps to respect, protect and fulfil human rights.

•

What is meant by “the right to health”?

“The right to health does not mean the right to be healthy, nor does it mean that poor governments must put in place expensive health services for which they have no resources. But it does require governments and public authorities to put in place policies and action plans which will lead to available and accessible health care for all in the shortest possible time. To ensure that this happens is the challenge facing both the human rights community and public health professionals.”

United Nations High Commissioner for Human Rights, Mary Robinson

The right to the highest attainable standard of health

• Opening text of the Constitution of WHO (1946) “The States Parties to this Constitution declare, in conformity with the Charter of the United Nations, that the following principles are basic to the happiness, harmonious relations and security of all peoples.

”

• Criteria by which to evaluate the right to health: (a)

Availability

. Functioning public health and health-care have to be available in sufficient quantity.

(b)

Accessibility

. Health facilities, goods and services have to be accessible to everyone without discrimination. Accessibility has four overlapping dimensions: Non-discrimination; Physical accessibility; Economic accessibility; Information accessibility.

(c)

Acceptability

. All health facilities, goods and services must be respectful of medical ethics and culturally appropriate, sensitive to gender and life-cycle requirements, as well as designed to respect confidentiality and improve the health status of those concerned.

(d)

Quality

. Health facilities, goods and services must be scientifically and medically appropriate and of good quality.

What is meant by a rights-based approach to health?

•

Justice as a right, not as charity

A rights-based approach to development describes situations not simply in terms of human needs, or of developmental requirements, but in terms of society’s obligations to respond to the inalienable rights of individuals; empowers people to demand justice as a right, not as charity; and gives communities a moral basis from which to claim international assistance when needed.

Kofi Annan, UN Secretary-General

What is meant by a rights-based approach to health?

• Using human rights as a framework for health development.

• Assessing and addressing the human rights implications of any health policy, programme or legislation.

• Making human rights an integral dimension of the design, implementation, monitoring and evaluation of health-related policies and programmes in all spheres, including political, economic and social.

Rights-based approach to health?

• Substantive elements to apply, within these processes, could be as follows: ✓ Safeguarding human dignity.

✓ Paying attention to those population groups considered most vulnerable in society. ✓ Ensuring health systems are made accessible to all, in law and in fact, without discrimination on any of the prohibited grounds.

✓ Using a gender perspective, recognizing that both biological and socio-cultural factors play a significant role in influencing the health of men and women.

✓ Ensuring equality and freedom from discrimination.

✓ Disaggregating health data to detect underlying discrimination.

✓ Ensuring free, meaningful and effective participation of beneficiaries of health development policies or programmes....

Rights-based approach to health?

• .......

✓ Articulating the concrete government obligations to respect, protect and fulfill human rights.

✓ Identifying benchmarks and indicators to ensure monitoring of the progressive realization of rights in the field of health. ✓ Increasing

transparency

in, and

accountability

for, health as a key consideration at all stages of programme development.

✓ Incorporating

safeguards

to protect against majority threats upon minorities, migrants and other domestically “unpopular” groups in order to address power imbalances. A key factor in determining if the necessary protections exist when rights are restricted is that each one of the five criteria of the

Siracusa Principles

must be met.

Possible “ingredients” in a rights-based approach to health:

R

ight to health

I

nformation

G

ender

H

uman dignity

T

ransparency

S

iracusa principles

B

enchmarks and indicators

A

ccountability

S

afeguards

E

quality and freedom from discrimination

D

isaggregation

A

ttention to vulnerable groups

P

articipation

P

rivacy

R

ight to education

O

ptimal balance between public health goals and protection of human rights

A

ccessibility

C

oncrete government obligations

H

uman rights expressly linked

Human Rights & Medical Personnel

An inadequate level of health care can lead rapidly to situations falling within the scope of the term “inhuman and degrading treatment” CPT 3rd General Report

Human rights and International Conventions concerning medical personnel

• The UN Universal Declaration of Human Rights clearly stipulates „No one shall be subjected to torture or cruel, inhumane or degrading treatment or punishment“. • The World Medical Association's (WMA) "Declaration of Tokyo" in 1975 states: "The physician shall not countenance, condone or participate in the practice of torture or other cruel, inhuman or degrading procedures, whatever the offence of which the victim of such procedure is suspected, accused or guilty, and whatever the victim's belief or motives, and in all situations, including armed conflict and civil strife."

Human rights violations under military regime

• An extreme case in recent history occurred in Nazi death camps • US soldiers in Vietnam • Since the September 11 attacks, terrorism has been linked inextricably to the public mind (in the west) to people from middle-eastern and Muslim backgrounds Abu Ghraib and Guantanamo • Military medical personnel are placed in a position of a

"dual loyalty"

conflict.

Human Rights and human experimentation

• Directive on Human Experimentation issued in December 1900 by the Prussian Minister of Religious, Educational and Medical Affairs • Circular on innovative therapy and scientific experimentation promulgated by the Reich Minister of the Interior in February 1931 • in April 1936, the Bureau of the Medico-Scientific Council of the People's Commissariat for Health of the Russian Socialist Federated Soviet Republic issued an Advisory Resolution on the procedures for testing new medicinal substances and methods which may present a hazard for the health and life of patients • In 1946 the American Medical Association published its first principles of human experimentation

Human Rights and human experimentation

• in 1953 the US Department of Defence issued its "top secret" Memorandum on the use of human volunteers in experimental research • in the same year, the Clinical Center of the US National Institutes of Health issued a policy document on clinical research • the United Kingdom Medical Research Council issued a Memorandum on clinical investigations • on 16 December 1966, the International Covenant on Civil and Political Rights was adopted by the United Nations General Assembly, which came into force ten years later, on 23 May 1976

Human Rights and human experimentation

• Article 7 was influenced by the events that led to the Nuremberg Code, as well as by other inhuman practices during World War II. It lays down that "no one shall be subjected without his free consent to medical or scientific experimentation.“

Human Rights and human experimentation

• Declaration on the Human Rights of Individuals who are not nationals of the country in which they live, proclaimed by the General Assembly on 13 December 1985. Article 6 lays down that "no alien shall be subjected without his or her free consent to medical or scientific experimentation"

Human Rights and human experimentation

• The

Tuskegee syphilis experiment

(also known as the

Tuskegee syphilis study

or

Public Health Service syphilis study

) was an infamous clinical study conducted between 1932 and 1972 in Tuskegee, Alabama by the U.S.

Other issues

• • • • •

Doctor as collaborators with police in criminal investigations Narco-analysis, brain mapping, lie detectors – tools for torture?

Testimonial compulsions - Compulsory blood/ DNA test for determining the commission of offence, paternity, etc Compulsory vaccination policy Sterilization cases

How do ethics relate to human rights?

Work in ethics needs to take into account human rights norms and standards, not only in substance but also in relation to the processes of ethical discourse and reasoning.