Health and Human RightsWMA – SEYCHELLES BASIC CONCEPTS IN ETHICS SEMINAR, 10TH & 11TH JULY 2015 (July 2015)

Professor A Dhai Immediate Past-President SAMA

Director: Steve Biko Centre for BioethicsHoD Bioethics Discipline

Faculty of Health Sciences University of the Witwatersrand, Johannesburg

South African Unit of the UNESCO International Network in Bioethics

• Relationship between human rights and healthcare ethics.

• Explain what human rights are.• Difference between civil and political rights

and economic and social rights.• How the different ethical principles relate to

human rights in international conventions and national legislation and policies.

OUTLINE

• Interplay between human rights and healthcare ethics is crucial for the proper provision of healthcare in democratic and caring societies.

• Not only do practitioners have to ensure that their own conduct does not contravene professional ethics and human rights standards, but as advocates of their patients, they have an obligation to protest when the behaviour of others violates these standards.

• When health is harmed as a consequence of the neglect or abuse of rights, practitioners have a moral duty to act in the best interests of their patients.

• Although the primary responsibility for ensuring that human rights are respected lies with governments, practitioners feel a particular responsibility to consider human rights issues in their practices and to mandate their representatives to lobby actively on a wide range of such issues. An example of such a body in South Africa is the South African Medical Association.

INTRODUCTION

British Medical Association The Medical Profession and Human Rights (2001) 14–42

• Society accords health practitioners with power and authority with the expectation that they would be altruistic and have special duties and obligations towards the patients that they treat.

• These duties and obligations confer correlative rights to patients, who are also increasingly seen as having some responsibilities as well.

• In healthcare context, practitioners have an ethical obligation to provide assistance in the best interests of their patients which supports the conclusion that patients have a moral right to that help. – At an individual level, these rights and duties are applicable within a

limited context – that of a pre-existing practitioner–patient relationship. – At a population level, the profession’s responsibility is perceived as

extending to the wider society at large.

Rights – Individual / Population Level

British Medical Association The Medical Profession and Human Rights (2001) 14–42

• Rights we have by virtue of being human.

• Fundamental rights owned by every human being from birth - comprehensively defined in international human rights instruments and codes.

• Have been codified into international human rights law and national law in some countries.

• When human rights have been ratified and acceded to in international agreements or legislated for in national legal systems they also become legal rights.

What are human rights?

• health policies, programmes, practices and research may inadvertently violate human rights;

• human rights violations may have important adverse effects on the health of individuals and groups;

• promoting human rights is an essential part of efforts to promote and protect public health;

• human rights paradigm provides a useful framework within which the health profession may begin to lobby for health promotion and protection.

Why do practitioners need to know about human rights?

• Reflection of the desire to protect human rights following World War II.

• Objectives of setting down international standards of human rights were: – to provide a means of defending individuals against the abuses of

power committed by organs of the state; and– to promote individuals’ opportunities to thrive and develop through

measures such as education, healthcare and a safe living environment, i.e. the social determinants of health.

• These principles laid the foundation for the International Bill of Rights which was introduced to protect people from a wide range of suffering and deprivation.

United Nations Charter of 1945

• Universal Declaration of Human Rights (UDHR)

• International Covenant on Economic, Social and Cultural Rights (ICESCR),

• International Covenant on Civil and Political Rights (ICCPR)

International Bill of Rights

• broadly divided into – civil and political rights, – economic and social rights – environmental and cultural rights.

• Generally accepted that:– human rights are universal, inalienable, indivisible and interdependent. – Basic beliefs about human rights apply all over to everyone in the same

way. • Hence:

– Respect for civil and political rights cannot be separated from the enjoyment of social, economic or even cultural rights.

– Genuine economic and social development also means that individuals must have political and civil freedoms to participate in the process.

Categories of human rights

• International Covenant on Civil and Political Rights introduced to guarantee civil and political rights and to protect people from oppression by the state.

• Also called ‘first generation’ rights’. • Focused on belief that all citizens are entitled to participation in political

process and freedom from interference by the state provided that their actions are not harmful to others.

• Hence conferred upon individuals in society freedom to act without undue constraint.

• Represent negative freedoms or negative rights.

• Some examples:– right not to be subjected to medical or scientific experimentation without

consent;– right to freedom from torture; and– right to freedom from slavery.

Civil and political rights

• ‘second generation’ rights, recognises that it takes more than freedom from interference by the state for people to survive and develop.

• access to economic and other resources like food, shelter and clean water are necessary for an adequate standard of living.

• positive rights, and represent claims on the state for the provision of basic services.

• single greatest determinant of health is socio-economic status. • examples of socio-economic rights are:

• right to access healthcare;• right to social security; and• right to education.

• moral priority should be given to access to appropriate healthcare.• reflects belief that health is also a basic human need of much more importance

than basic human desires. • if health is not optimal, people will not develop optimally. Ill health or physical

disability will diminish one’s potential to develop to the best of one’s ability.

Economic and social rights

• bioethical principles - autonomy, beneficence, non-maleficence and justice – provide a useful framework for reflecting on aspects

of human rights instruments that affect health. • Elements of these principles found in – International Bill of Rights, – African Charter of Human and People’s Rights

(hereafter referred to as the African Charter), – Constitution of the Republic of Seychelles

Bioethical Framework for Health and Human Rights

• right to: – life, – liberty and security of the person; (informed

consent)– privacy; (confidentiality)– freedom of movement; – freedom of thought, conscience and religion;

Autonomy

• Right to – social security– a standard of living adequate for a person’s health and wellbeing and that

of his or her family.– everyone to enjoy the highest attainable standard of physical and mental

health • State must:

– provide for the reduction of still births and of infant mortality and for the healthy development of the child;

– improve all aspects of environmental and industrial hygiene;– prevent, treat and control epidemic, endemic, occupational and other

diseases; – create conditions which assure to everyone medical service and medical

attention in the event of sickness.

Benificence

• Nobody to be:– Subjected to cruel, inhuman or degrading treatment; – Arbitrary interference with their privacy.– Deprived of their liberty; – Subjected to unlawful interference with their privacy;– Subjected to cruel, inhuman or degrading treatment – in

particular nobody may be subjected without their free consent to medical or scientific experimentation; and

– Denied the right in community with other members of their group, to enjoy their own culture, to profess and to practice their own religion or to use their own language(e.g. persons belonging to ethnic, religious or language minorities).

Nonmaleficence

• Everyone is born free and equal in dignity and rights and entitled to all the rights and freedoms without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

• Every child has the right, without any discrimination to be protected by his or her family, society and the State;

• All persons are equal before the law and are entitled, without any discrimination, to the equal protection of the law. This means that the law should prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination

Justice

• Siracusa Principles

• Limitation reasonable and justifiable in open and democratic society

Limitations of Rights

• Steve Biko, the leader of the Black Consciousness Movement in South Africa was arrested on 21 August 1977, under the Terrorism Act 83 of 1967. He was interrogated by police officers of the Port Elizabeth security police and suffered major head injuries while in police custody. On the 11 September 1977 an injured and untreated Biko was loaded onto the back of a Land Rover and driven 1 250 km to Pretoria to take him to a prison with hospital facilities. He died shortly after arrival at the Pretoria prison on 12 September, having been left to die in his cell with an empty drip bottle attached to his arm. Biko was never charged with a crime or brought to trial.

• During his detention Biko was kept naked in his cell, chained to a grille at

night, and left lying on a urine-stained blanket on a rubber mat on the floor.

Which rights of Steve Biko were violated?