HUMAN RIGHTSMedical humanities II

2014-2015

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).

• Breaches of International humanitarian law represent the most serious of human rights violations.

“All human beings are born free and equal in dignity and rights”

The Universal Declaration of Human Rights

• 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

Substantive rights

Future generations

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

• National securityWith 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 universalismRelativists 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........

Convention on the Rights of Persons with Disabilities

• international human rights treaty of the UN • intended to protect the rights and dignity of

persons with disabilites • global movement from viewing persons with

disabilities as objects of charity, medical treatment and social protection towards viewing them as full and equal members of society, with human rights.

Convention on the Rights of Persons with Disabilities

• adopted by the UN General Assambly 2006, came into force on 3 May 2008. As of September 2014, it has 159 signatories and 151 parties

Convention on the Rights of Persons with Disabilities

• The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

• "Discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Article 5 - Equality and non-discrimination

• 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

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.

Article 7 - Children with disabilities

• 1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.3. States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children.

Article 9 - Accessibility

• 1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.

Article 25 - Health

• States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation. 

In particular, States Parties shall:

• Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes;

• Provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons.

• Require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care;

• Prohibit discrimination against persons with disabilities in the provision of health insurance, and life insurance where such insurance is permitted by national law, which shall be provided in a fair and reasonable manner.

Rights of people with mental illness/mental disability/psychiatric disorders

• Much of the hardship experienced by people with mental disabilities, however, is caused by discrimination and the absence of legal protections against improper and abusive treatment.

“All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.”

Principles for the Protection of Persons with Mental Illness

• People with mental disabilities are often deprived of liberty for prolonged periods of time without legal process; subjected to peonage and forced labor in institutions; subjected to neglect in harsh institutional environments and deprived of basic health care; victimized by physical abuse and sexual exploitation; and exposed to cruel, inhuman or degrading treatment.

• People with mental disabilities are often denied opportunities to receive an education, to work, or to enjoy the benefits of public services or other accommodations.

• In many cases, the laws do not actively discriminate against people with mental disabilities, but they may place improper or unnecessary barriers or burdens on individuals with mental disabilities.

• In some countries, people with mental disabilities are subject to de jure discrimination – the arbitrary denial of rights that are afforded to all other citizens.

• Improper discrimination may also take place against people with no disability at all – if they are improperly viewed as having a mental disorder, or if they once experienced a mental disorder earlier in life.

• In 1993, the World Conference on Human Rights meeting in Vienna reemphasized the fact that people with mental and physical disabilities are protected by international human rights law and that governments must establish domestic legislation to realize these rights.

• In what has come to be known as the “Vienna Declaration,” the World Conference declared that “all human rights and fundamental freedoms are universal and thus unreservedly include persons with disabilities.”

International human rights law creates a number of broad protections that provide important rights to people with mental disabilities, including:

• 1) the right to the highest attainable standard of physical and mental health;

• 2) protections against discrimination • 3) protections against torture, inhuman, or

degrading treatment; • 4) protections against arbitrary detention.

• National legislation, embodying the rights and obligations of citizens, should include the rights and obligations of persons with disabilities. States are under an obligation to enable persons with disabilities to exercise their rights, including their human, civil and political rights, on an equal basis with other citizens. States must ensure that organizations of persons with disabilities are involved in the development of national legislation concerning the rights of persons with disabilities, as well as in the ongoing evaluation of that legislation.

The Principles for the Protection of Persons with Mental Illness and the Improvement of

Mental Health Care, 1991.

• Principle 9

Treatment

1.Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others.

2. The treatment and care of every patient shall be based on an individually prescribed plan, discussed with the patient, reviewed regularly, revised as necessary and provided by qualified professional staff.

3. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused.

4. The treatment of every patient shall be directed towards preserving and enhancing personal autonomy.

• Principle 10

Medication

1. Medication shall meet the best health needs of the patient, shall be given to a patient only for therapeutic or diagnostic purposes and shall never be administered as a punishment or for the convenience of others. Subject to the provisions of paragraph 15 of Principle 11, mental health practitioners shall only administer medication of known or demonstrated efficacy.

2. All medication shall be prescribed by a mental health practitioner authorized by law and shall be recorded in the patient's records.

• Principle 16

Involuntary admission• 1. A person may (a) be admitted involuntarily to a

mental health facility as a patient; or (b) having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines, in accordance with Principle 4, that person has a mental illness and considers:

• (a) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons.

Basic Principles for the Treatment of Prisoners

• 1. All prisoners shall be treated with the respect due to their inherent dignity and value as human beings.

• 2. There shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Prisoners and Human Rights

Prisoners, just like all other people, are entitled to enjoy their human rights.

• particularly relevant for prisoners -

The right to be treated with humanity, dignity and respect while in detention.

INTERNATIONAL HUMAN RIGHTS STANDARDS FOR PRISON OFFICIALS

• No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. There are no exceptions.

• No prisoner shall be subjected, even with his or her consent, to any medical or scientific experimentation which may be detrimental to health.

INTERNATIONAL HUMAN RIGHTS STANDARDS FOR PRISON OFFICIALS

Special Categories of Prisoners

A.Non-discrimination

B. Women in prison

C. Juveniles in detention

D. Prisoners under sentence of death

E. Life and long-term prisoners

Standard Minimum Rules for the Treatment of Prisoners

were adopted on 30 August 1955 by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders

• Recommendation Rec(2006)2

of the Committee of Ministers to member states on the European Prison Rules

The Rights of Refugees

• refugee is defined as a person who

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country or return there because there is a fear of persecution...”

1951 United Nations Convention

Relating to the Status of Refugees

(the Refugee Convention)

The Rights of Refugees

• Prohibition on the forced return of

a refugee is called nonrefoulement and

is one of the most fundamental principles

in international refugee law.

This principle is laid out in Article 33 of the

Convention Relating to the Status of Refugees, • Some countries detain asylum seekers upon

arrival, during the asylum process or while waiting for deportation.

The Rights of Refugees

• Articles 12 - 30 of the Refugee Convention set out the rights which individuals are entitled to once they have been recognised as Convention refugees. All refugees must be

- granted identity papers and travel documents that allow them to travel outside the country

- must receive the same treatment as nationals of the receiving country, must receive the most favourable treatment provided to nationals of a foreign country and which must be at least as favourable to that accorded aliens generally in the same circumstances.

The Rights of Refugees

• The United Nations High Commissioner for Refugees (UNHCR) was created in 1951 to assist in the international protection of refugees. The organization’s primary objective is to ensure that all persons can exercise the right to seek asylum and find safe refuge in another state, and to return home voluntarily.

• The 1951 Refugee Convention does not force a state to admit a refugee, that is to grant asylum.

a gap here between the individual’s right to seek asylum and the state’s discretion in providing it.

What's the difference between immigrant and refugee?

• The distinction is significant and could determine whether the migrants are subject to deportation to their home country or eligible to remain in the States under asylum.

• An immigrant is someone who chooses to resettle to another country.

• A refugee is someone who has been forced to flee his or her home country. As such, refugees can apply for asylum, a process that could take years.

What's the difference between immigrant and refugee?

• "Migrants, especially economic migrants, choose to move in order to improve the future prospects of themselves and their families," the U.N. High Commissioner for Refugees says. "Refugees have to move if they are to save their lives or preserve their freedom."