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Which are the most relevant international and regional human rights standards related to patient care?

Overview

A wide variety of human rights standards at the international, regional, and national levels applies to patient care. These standards can be used for many purposes:
  • To document violations of patient rights
  • To advocate for the cessation of these violations
  • To sue governments for violations of national human rights laws
  • To complain to regional and international human rights bodies about breaches of human rights agreements.
In the tables on the following pages, examples of human rights violations related to patient care are provided. Relevant human rights standards are then cited, along with examples of legal precedents and provisions from patient right charters and declarations, interpreting each standard.

How to read the tables

As you read through each table, ask yourself the following questions about the violations, standards, and precedents and interpretations that are cited:

EXAMPLES OF HUMAN RIGHTS VIOLATIONS

Do any of these violations occur in your country? Are there other violations of this human right that exist in your country?
HUMAN RIGHTS STANDARDS

Are these violations prohibited by the "human rights standards"? Can the standards be interpreted to apply to this violation?
PRECEDENTS AND INTERPRETATIONS

Do any of the "examples of precedents and interpretations" apply to this issue? Can they be interpreted to apply to this issue?

Remember that human rights law is an evolving field, and that many human rights violations are not directly addressed by existing legal standards and precedents. Through ongoing documentation and advocacy, advocates can build a stronger body of jurisprudence on patient care and human rights.

Abbreviations

In the tables, the seven treaties and their corresponding enforcement mechanisms are referred to with the following abbreviations:

Treaty Enforcement Mechanism
International Covenant on Civil and Political Rights
(ICCPR)
Human Rights Committee (HRC)
International Covenant on Economic, Social, and Cultural Rights (ICESCR) Committee on Economic, Social and Cultural Rights (CESCR)
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee)
Convention on the Rights of the Child (CRC) Committee on the Rights of the Child (CRC Committee)
African Charter on Human and People’s Rights (ACHPR) & Protocols African Commission on Human and People’s Rights (ACHPR Commission)
[European] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) European Court of Human Rights (ECtHR)
European Social Charter (ESC) European Committee of Social Rights (ECSR)

Table 1: Patient care and the right to liberty and security of the person

Examples of Human Rights Violations
  • A hospital employs excessive restraints on patients, such as tying them to a bed or wheelchair for hours each day.
  • Mentally ill patients are confined without a set procedure or standard. 
  • There are unjustified delays in reviewing whether mentally ill patients must continue to be institutionalized.
  • Patients are detained in hospitals for their inability to pay bills.
Human Rights Standards Precedents and Interpretations
ICCPR 9(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

ACHPR 6 Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

ECHR 5(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
HRC: considering a period of 14 days of detention for mental health reasons without review by a court in Estonia incompatible with ICCPR 9. [CCPR/CO/77/EST (HRC, 2003), para. 10].

ECtHR:  establishing that civil commitment must follow a procedure prescribed by law and cannot be arbitrary; the person must have a recognized mental illness and require confinement for the purposes of treatment. [Winterwerp v. The Netherlands, 33 Eur. Ct. H.R. (ser. A) (1979)].

ECtHR: mandating speedy periodic legal review of civil commitment with the essential elements of due process. [X v. United Kingdom, 46 Eur. Ct. H.R. (ser. A) (1981)].

ECtHR: awarding damages for violation of liberty interests to a patient detained in a Hungarian psychiatric hospital for 3 years where the commitment procedure was superficial and insufficient to show dangerous conduct. [Gajcsi v. Hungary (Application No. 34503/03), Oct. 3, 2006].

Table 2: Patient care and the right to privacy

Examples of Human Rights Violations
  • Patient medical information is open to all hospital staff, including those not involved in patient care.
  • Patients are forced to disclose their medical diagnosis to their employer in order to obtain sick leave from work.
  • Medical examinations take place under public conditions.
  • Terminally-ill patients are forced to remain in public wards.
  • Staff of medical/ psychiatric institutions routinely open patient mail and review their correspondence.
Human Rights Standards Precedents and Interpretations
ICCPR 17(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

ECHR 8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

CRC 16(1) No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

See also:
  • European Convention on Human Rights and Biomedicine, art 10(1): “Everyone has the right to respect for private life in relation to information about his or her health.”
The European Charter of Patients’ Rights sets out:  “Every individual has the right to the confidentiality of personal information, including information regarding his or her state of health and potential diagnostic or therapeutic procedures, as well as the protection of his or her privacy during the performance of diagnostic exams, specialist visits, and medical/surgical treatments in general.” [art. 6].

Under the Declaration on the Promotion of Patients’ Rights in Europe, “All information about a patient’s health status… must be kept confidential, even after death.” “Patients admitted to health care establishments have the right to expect physical facilities which ensure privacy.” [art. 4.1, 4.8].

CESCR: referring to “the right to have personal health data treated with confidentiality.” [CESCR GC 14, para 12].

ECtHR: holding that “the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life. Respecting the confidentiality of health data is a vital principle….  It is crucial not only to respect the sense of privacy of the patient but also to preserve his or her confidence in the medical profession and in the health services in general.” [M.S. v. Sweden (27/08/1997)].

ECtHR: noting that disclosure of health data “may dramatically affect a person’s private and family life, as well as social and employment situation, by exposing him or her to opprobrium and the risk of ostracism.” [Z. v. Finland, 25/02/1997].

Table 3: Patient care and the right to information

Examples of Human Rights Violations
  • A state fails to provide information on various health care services. For instance, rape victims are entitled to obtain post-exposure prophylaxis to prevent HIV infection, but very few are aware of this option.
  • Hospitals fail to provide information on patient satisfaction, clinical performance, and waiting lists.
  • Physicians fail to comprehensibly explain to patients the facts related to their condition.
  • Physicians fail to provide patients with information about treatment options and the potential risks and benefits of each procedure.
  • Patients are denied access to their medical files.
  • Information services are unavailable for people who speak certain languages or who are deaf or blind.
Human Rights Standards Precedents and Interpretations
ICCPR 19(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

ACHPR 9 (1) Every individual shall have the right to receive information.

(2) Every individual shall have the right to express and disseminate his opinions within the law.

ECHR 10 (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

See also:
  • European Convention on Human Rights and Biomedicine, art 10(2): “Everyone has the right to know any information collected about his or her health.”
CESCR: health care accessibility "includes the right to seek, receive and impart information and ideas concerning health issues." [CESCR GC 14, para 12].

See also:
  • Under the European Charter of Patients’ Rights, "Every individual has the right of access to all kinds of information regarding their state of health and health services and how to use them, and all that scientific research and technological innovation makes available." [art. 3].
  • The Declaration on the Promotion of Patients’ Rights in Europe emphasizes, "Patients have the right to be fully informed about their health status, including the medical facts about their conditions; about the proposed medical procedures, together with potential risks and benefits of each procedure; about alternatives to the proposed procedures, including the effect of non-treatment; and about the diagnosis, prognosis, and progress of treatment." Moreover, "[p]atients have the right to choose who, if any one, should be informed on their behalf." [art. 2.2, 2.6].

Table 4: Patient care and the right to bodily integrity

Examples of Human Rights Violations
  • Physicians either fail to obtain consent from patients before performing medical procedures, or do not provide patients with adequate information so that they can make an informed decision.
  • In the case of a very young patient or a patient lacking capacity, the hospital does not allow for a substitute decision-maker.
  • A hospital lacks standardized procedures for obtaining patients’ consent to participate in scientific research.
  • Physicians ignore patient wishes regarding treatment.
  • Patients are not allowed to switch physicians or healthcare providers.
Human Rights Standards Precedents and Interpretations
ACHPR 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Note:  The right to bodily integrity is not specifically recognized under the ICCPR, ICESCR, or European conventions, but has been interpreted to be part of the right to security of the person (ICCPR 9, ECHR 5), the right to freedom from torture and cruel, inhuman, and degrading treatment (ICCPR 7, ECHR 3), the right to privacy (ICCPR 17, ECHR 8), and the right to the highest attainable standard of health (ICESCR 12, ESC 11).

See also:
  • CRC 19(1) (protecting the child from all forms of physical or mental violence)
  • Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, art. 4(1): "Every woman shall be entitled to respect for her life and the integrity and security of her person."
  • European Convention on Human Rights and Biomedicine, art 5: “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.”
CESCR: explaining that the right to health includes "the right to be free from non-consensual medical treatment and experimentation." [CESCR GC 14, para. 8].

ECtHR: "The imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person’s physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention" [Pretty v. United Kingdom, 2002].

ECtHR: finding a breach of physical and moral integrity when dimorphine was administered to a son against his mother’s wishes and a DNR (Do Not Resuscitate) order was placed in his records without his mother’s knowledge [Glass v. United Kingdom (Application no. 61827/00, 2004)].

See also:
  • The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, ("CPT 2001") : "[E]very competent patient…should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances."
  • The European Charter of Patients’ Rights sets out the right to "informed consent." "A patient has the right to refuse a treatment or a medical intervention and to change his or her mind during the treatment, refusing its continuation." [art. 4]. Moreover, a patient has “the right to freely choose from different treatment procedures and providers on the basis of adequate information." [art. 5].
  • Under the Declaration on the Promotion of Patients' Rights in Europe, "[t]he informed consent of the patient is a prerequisite for any medical intervention," and "[a] patient has the right to refuse or halt a medical intervention." [art. 3.1, 3.2].

Table 5: Patient care and the right to life

Examples of Human Rights Violations
  • Due to inadequate reproductive health and prenatal care, complications from pregnancy and childbirth are a leading cause of death for young women.
  • Ambulances fail to arrive at certain communities in a timely manner.
  • Patients are unable to obtain low cost medications due to bureaucratic hurdles and an overly restrictive patent regime. As a result, their life is in danger.
  • Health services do not include preventive screening for many types of cancer. As a result, patients learn they have cancer when it is already too late for effective treatment.
Human Rights Standards Precedents and Interpretations
ICCPR 6(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

ACHPR 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

ECHR 2(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

HRC: explaining that the right to life “should not be interpreted narrowly” or “in a restrictive manner,” and its protection “requires that States adopt positive measures… to increase life expectancy.” [HRC GC 6, paras 1, 5].

ECtHR: holding that a violation of the right to life occurs "where it is shown that the authorities...put an individual’s life at risk through the denial of health care which they have undertaken to make available to the population generally." [Cyprus v. Turkey, 35 EHRR 721, para. 219 (2002)]

Table 6: Patient care and the right to the highest attainable standard of health

Examples of Human Rights Violations
  • Hospitals do not take adequate measures to prevent hospital-borne infections, oversee health risks following transfusions, and ensure their tests and treatment remain of high quality.
  • Hospitals fail to meet the needs of patients who require religious or psychological support or provide treatment appropriate for the terminally ill.
  • Hospitals fail to provide care suited to the needs of small children.
  • Long, unjustified delays in the provision of health services regularly lead to a worsening in patients’ health.
  • A state lacks adequate compensation procedures for patients harmed by health care providers.
Human Rights Standards Precedents and Interpretations
ICESCR 12(1) The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

12(2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:… (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

CRC 24(1) States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health.

ACHPR 16(1) Every individual shall have the right to enjoy the best attainable state of physical and mental health. 16(2) States Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

ESC 11 – The right to protection of health

With a view to ensuring the effective exercise of the right to protection of health, the Contracting Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designed… (2) to provide advisory and educational facilities for the promotion of health…

See also:
  • CRC 24, African Charter on the Rights and Welfare of the Child 14 (child’s right to the highest attainable standard of health)
CESCR: "As well as being culturally acceptable, health facilities, goods and services must also be scientifically and medically appropriate and of good quality." They must also be "sensitive to gender and life-cycle requirements." [CESCR GC 14, para 12].

CESCR: pointing to a need for federal legislation on the patient rights in Russia, including redress for medical errors. [E/C.12/1/ADD.94 (CESCR, 2003), para. 32].

ECtHR: holding that states have a duty to protect the health of detainees and lack of treatment may amount to a violation of the right to freedom from torture or to inhuman or degrading treatment [Hutardo v. Switzerland (Series A No. 280-A, 28/01/94); Ilhan v. Turkey, 34 EHRR 36 (2002)].

See also:
  • CPT 2001: The provision of basic necessities of life must always be guaranteed in institutions where the State has persons under its care and/or custody. These include adequate food, heating and clothing as well as, in health establishments – appropriate medication. [Para 33].
  • The European Charter of Patients' Rights refers to the right to "the observance of quality standards," "safety," "innovation." [arts 8-10].
  • The Declaration on the Promotion of Patients' Rights in Europe, promulgated by a WHO European Consultation, "Patients have the right to a quality of care which is marked both by high technical standards and by a humane relationship between the patient and health care provider." [art. 5.3].

Table 7: Patient care and freedom from torture and cruel, inhuman, and degrading treatment

Examples of Human Rights Violations
  • Victims of state torture are denied needed medical care.
  • Prisoners lack basic health services and are forced to subsist on very little food and with inadequate clothes and no heat during the winter.
  • Mentally ill prisoners are punished for symptoms of their illness, including self-mutilation and attempted suicide.
  • National laws restricting opioid availability and access cause cancer and AIDS patients to suffer unnecessary pain.
Human Rights Standards Precedents and Interpretations
ICCPR 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

ACHPR 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

African Women’s Protocol 4(1) All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited.

ECHR 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

See also:

  • Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment
  • Code of Conduct for Law Enforcement Officials
  • Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, art. 4(1) "All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited."
  • European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
HRC: calling for the improvement of hygienic conditions, regular exercise, and adequate treatment of the mentally ill in detention facilities in Bosnia and Herzegovina (both in prisons and mental health institutions). [CCPR/C/BIH/CO/1 (HRC, 2006), para. 19].

ECtHR:  upholding prisoners’ right to confinement under conditions compatible with human dignity. Prisoners’ health and wellbeing must be adequately secured by the provision of requisite medical assistance. [Kudla v. Pologna, Oct. 26, 2000].

See also:
  • Committee Against Torture: pointing to overcrowding, inadequate living conditions, and lengthy confinement in Russian psychiatric hospitals as “tantamount to inhuman or degrading treatment.” [CAT/C/RUS/CO/4 (CAT, 2007), para. 18].
  • The European Charter of Patients’ Rights sets out: "Each individual has the right to avoid as much suffering and pain as possible, in each phase of his or her illness. The health services must commit themselves to taking all measures useful to this end, like providing palliative care treatment and simplifying patients’ access to them." [art. 11].
  • Under the Declaration on the Promotion of Patients' Rights in Europe, "Patients have the right to relief of their suffering according to the current state of knowledge...Patients have the right to humane terminal care and to die in dignity." [art. 5.10, 5.11].

Table 8: Patient care and the right to participate in public policy

Examples of Human Rights Violations
  • A country fails to adopt a national health plan or to make it publicly available to its citizens.
  • Citizens lack an opportunity to comment on and participate in the setting of public health priorities.
  • The government will not accept or respond to information and proposals on health care delivery submitted by citizens.
Human Rights Standards Precedents and Interpretations
ICCPR 25 Every citizen shall have the right and the opportunity, without… distinctions… (a) To take part in the conduct of public affairs, directly or through freely chosen representatives.

CEDAW 7 State Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:… (b) [t]o participate in the formulation of government policy and the implementation thereof.

See also:

  • CEDAW 14(2)(a) (right of rural women to participate in development planning)
  • Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, art. 9(1): "States Parties shall take specific positive action to promote participative governance and the equal participation of women in the political life of their countries."
  • The Ljubljana Charter on Reforming Health Care
CESCR: calling for countries to adopt “a national public health strategy and plan of action” to be “periodically reviewed, on the basis of a participatory and transparent process.” [CESCR GC 14, para. 43].

CESCR: “Promoting health must involve effective community action in setting priorities, making decisions, planning, implementing and evaluating strategies to achieve better health.  Effective provision of health services can only be assured if people’s participation is secured by States.” [CESCR GC 14, para. 54].

See also:

  • The European Charter of Patients' Rights has a whole section on the "Rights of Active Citizenship"—citizens" "right to participate in the definition, implementation and evaluation of public policies relating to the protection of health care rights." [Part III].

Table 9: Patient care and the right to non-discrimination and equality

Examples of Human Rights Violations
  • Members of certain communities are treated in separate wards with a lower standard of care.
  • Health workers refuse to treat sex workers, drug workers, or LGBT persons.
  • Maternal and reproductive health services for women are lacking.
  • A country fails to provide health services to the poor or non-citizens.
Human Rights Standards Precedents and Interpretations
ICCPR 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

ICESCR 2(2) The States Parties to the present Covenant undertake to guarantee the rights enunciated in the present Covenant shall be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, birth or other status.

ACHPR 2 Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

See also:

  • International Convention on the Elimination of All Forms of Racial Discrimination, art. 5(e)(iv)
  • Convention relating to the Status of Refugees
  • European Convention on Human Rights and Biomedicine, art 3 (equitable access to health care)
  • European Convention on Citizenship and the Convention Relating to the Status of Stateless Persons
CESCR: explaining that health facilities, goods, and services have to be accessible to everyone without discrimination “and especially to the most vulnerable and marginalized sections of the population.” The Committee further urged particular attention to the needs of “ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with disabilities and persons with HIV/AIDS.” [CESCR GC 14, para 12].

CESCR: explaining that health facilities, goods, and services “must be affordable for all,” and “poorer households should not be disproportionately burdened with health expenses as compared to richer households.” [CESCR GC 14, para 12].

CESCR: criticizing China for inadequate medical care provided to low-income patients. Many expensive drugs required by chronically ill and mentally ill patients are not subsidized and thus in practice denied them. [E/C.12/1/ADD.107 (CESCR, 2005), para. 87].

CESCR: admonishing Russia where hospitals and clinics in poor regions often do not stock all essential drugs. [E/C.12/1/ADD.94 (CESCR, 2003), para. 31].

ECSR: declaring that the health care system must be accessible to everyone, including the disadvantaged. [Conclusions XVII-2 and 2005, Statement of Interpretation on Article 11].

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