Introduciton

1) the nordic model a. it is based on social democracy, it is really about balancing the

interests of individual autonomy against health priority. 2) Healthcare

a. These are essentially for the welfare state, they are emergency, private and public.medicine is relevant in that it is indivudal and curative, aublic health is about prevention and population based analysis.

3) Preconditions a. Health is determined by the environment, you must have adequate

access to food, and the environment must be maintained. 4) Human rights

a. Are those things which are attributable to man regardless of race creed colour ethnicity etc. Dignity is central to this concept

b. Principle autonomy, liberty and privacy should be respected as long as it respects the dignity of the indivdual.

5) The dilemma a. How do we make a decision based on the dignity of the individual and

the challenges that are faced. Right to life, the right to health, autonomy, privacy and non discrimnation.

6) The state obligation to respect protect and fulfill a. This is contained in UDHR and the Vienna declaration on the program

of action. b. There is an inherent interdependence between the rights, the right ot

helath necessaryily entails access to certain polctical and economic rights.

7) History in EU a. It was riddled by war, and the response was the Council of Europe and

the EU. 8) Normative standards

a. Are governed about the manner in which to treat humans. This is grounded in regional courts which are able to enforce these standards. The ECHR and the ECSR and the UN rights committees.

9) Interpretiaon a. Living standard. Tyrer v UK b. The role of doctors is to protect the health of patients frankhowitz v

Poland. c. Airey v Ireland there are inconsistencies in interpreting the scope fo the

rights. The court may take into consideration the economic and social rights. There is no clear water tight division.

d. Negative and positive aspects i. Right to life art 2.1

1. Enaalis positive obligaitons to protect and prevent suicide. Kilin v turkey

ii. Article 3

1. The deprivation of appropriate care may consitite a violation of article 3 based on the dignity of the indivdual and the inhumain and degrading torture.

e. Margin of appreciation i. There is a margin of appreciation between the states and the

ultimate application of the policies because of the nature of the diversity of Europe. Depends on the degree of interferance and the establishement of standards within Europe.

f. Absolute vs non absolute rights i. Right to life, prohib on torture, prohib on slavery

ii. Necessary in a democratic state, prescribed by law, achieving certain interests and outcomes.

g. Right to liberty i. And security as prescribed by law,

h. right to liberty and security i. right to privacy j. informed consent

i. jehovas witnesses v Moscow 2010 ii. it is for the medical authorites to decide on the appropriate

treatment to be used. k. Respect, protect and fulfill

i. Respect; is acknowledging the existence of a particular right ii. Protect, is the act of preventing non state actors from

interfering with a respected right. For example in criminilising certain conduct, and taking opsitive measures to prevent conduct.

iii. Fulfil is the administrative fulfillment of the right. Basically you need to take positive measures to ensure that the right is fully realized. Facilitate promote and provide healthcare services to all.

10) The European human rights framework (reading) a. TFEU

i. Art 152 and 168 are similar, policy is to improve public health combating serious cross border diseases.

ii. There is a desire to increase the accessibility of health related progams for cross border things. Serious things like alcohol and tobacco are relevant conclusion is that the adoption of the Lisbon treaty has resulted in the expansion of the area of health it is a more proactive role for states.

b. The TEU c. Public health

i. Is important as a transational endeavour. The EU under 168 has the competence to

ii. Strategy is to consider the larger relevance of the EU as acting as a global voice on the health of individuals.

iii. Promote 1. Safety programs for patients 2. High quality and safe healthcare 3. Safety and quality of organs and blood

iv. Clinical trials: the directive deals with this, 2001/20/EC.

Lecture II The development of human rights insturments historically

they can be tied back to the French revolution. before WWII there was a radical shift. It was important that rights belong

to the citizens and not merely the states. principle the earlier approach the state on behalf of the states could persue

human rights. Post WWII * positive obligations to act

o traditionally human rights was about interferance from the state. It was the liberal man without state intervention. The shift was that it required the states to actually act, not merely refrain from acting.

Economic consideraitons o This required the state to forego money for the fulfillment of cetain

rights. This increased complications between economic, social and economic rights, contra civil and political rights.

o first second and third generation rights. ! generally there is no sharp diviisn between these rights. All

of the decisions on the convention of human rights. Civil and political rights in context?

o Ecoomic social and cultural rights ! In the first 20 articles, these rights predominate. It is not

about what is written in the consittuion but also the active role in the states.

! in Belgiium there are positive rights to ignity affiliated with housing provision. They exist and are not implemented.

Globally o In south Africa, and latin 3merica

! They have used the supreme court to address issues of social protection.

o In Norway ! Does the constitution protect economic and social rights? ! 1814, it was very old, 200 year constitution second largest

in the world. There was a revion committee which went to the parlaimment. They made amendments concerning civil and political right . For example the right to family life. There was not a right to health or social benefits?here is a welfare state, but it is not protected under the constitution.

o The lesson: when it comes to what is contained in these legal insturments, they can be in the constitution but it doesnt really matter. The more rights you have the more rights the people actually have.

o Despite not being protected in Norway, there amy be a high standard of health care protection.

The role of the court o this impacts on thee level

examining the detail of these different insturments

interaction between the ECHR which is binding, and the ESC which makes decisions through a committee that are not binding.

o The ECHR o The ESC is through the European Social Charter. This is used for

non binding decisions, The European convention on human rights (ECHR)

the European court of human rights, does this protect economic social and cultural rights? It is not legally binding. It is not legally binding and enforceable. Explination the convention has been ratified? When internally examining this, can you invoke the connveiton as a source of law? Another queston, depends on the extent of ratification. In Norway human rights act it is incorporated in Norwegian law

issue: are the decisions of the EUHR court binding on different countries? Principle: compensation may be paid to the applicants. It is binding! But there is no administrateive body to enforce its decions There is a committee that legally this is a binding decision. If you dont pay, the council of Europe cannot enforce it in that sense, the philosoical question is whether it is still legally bining if it can be enforced. It is binding in the sense that the state has committed itself to follow these rules.

Principle the ECHR creates binding but not enforceable decisions. Does it protect health and social rights? No, but some civil and

political rights that they cover aspects of social rihts. Not a direct protection however.

o not really, they are connected, working buying food to be well fed. You cannot claim a right to work form the state. For example provison of conditions for people to find work. Princple : there is no prima facie protection of health or social rights, however it does have an impact on addressing social rights in certain circumstances throught the provison of other rights.

does it protect economic rights o yes in a sense property rights are protected, however these are

generally protected through the states themselves. the revised European Social charter: usage it is not legally binding but provides a number of different targeted social rights.

type of instrument? It is soft law in a sense. It is binding because it is ratified in a sense. But it is softer.

Supervison body under the charter? o It is a committee. They make non binding decisonns.

Role and function, the content. o riht to work o safe work o organize o collective bargaining

principles; provisions that target social rights. Biomedial convention*** this is of great importance to this course because it targets health isssues at an international level.

It targets biomedicine. Principle it is about health law, and the main provison is about informed consent. Many of these provsions allow interaction without consent. Likewise additional protocals which cover medial research are contained within this insturmet.

supervisionary body. There is no kind of supervisonary body. principle application; interesting in that it targets health law, informative,

however it is not biding, and does not have any adminsitrateive body or committee to carry out the purposes of this instrument.

deep analysis of technical issues reading

o it recognizes dignity in art 1 and certain normative measures allowing the primacy of the human body for non exploitative purposes.

Limits o It doesnt have any enforcement, and it doesnt even

require regular reporting. However it does have a Secretary general who ensures effective implementation of its primary provisns. It can also request a non binding advisory judgement from the ECHR. 29.

Analysing the effectiveness of the European approach to rights 1) the EU social charter has a lot of potential, this is because of the collective rights mechanism. Although the biomedicine convention is relatively limited, it allows for certain things, and it is likely to increase in prominence in coming years.

the content of these provisions

they do not hae the same wording content because of the interpretation by the court. For example with change of gender. The court

despite being the same, the content is different in interprertaion. universal declaration on human rights

the preamble o in artile 22 everyone has the right to social secrity, and entitled to

right of securitsaiton of economic social essential for dignity. Everyone has the right to rest and leisure. Principle at the time these were radical.

o application; this is not really binding. It nonetheless had a right to civil and political rights.

Caselaw about the free movement of persons within the EU 1) SPUC v Grogan

this case really exemplified the extent to which the Eu was willing to allow people to morally shop for treatment within the EU. There were some irish people seeking to get an aborition in another country and it was held that this was possible.

It has been argued that despite the benefits to health treatment this free movement may comprimise the financial stability of nations who must supply extended facilities and programs to other non citizens.

insturments under the UN there were reasons that the ratification of economic and social rights were not ratified. This was in 1968. This was a major dispute between the east and west. The US has not actually ratified this final instrument. General overview

are there committess made according to the conventiosn. These following two

1) The universal declaration of human rights (UDHR) 2) International coveneant on civil and political rights (ICCPR)

there is a committee, a state can ratify and there is a complant mechanism. The citizens can go to this committee and have this postion. This is under the following convention.

International covenant on economic social and cultural rights (ICESCR)

contrastingly there is no complaint procedure. There are state reports, they may provide a report, every five years, which they normally say is going pretty well!!

not normally in practice. They can focus on development points, five year increments

the relevance of NGOs they provide the committees with shadow reports. They may not always have the same weight.

the committee produces** a statement, however it si not binding on the states.

Convention on the rights of the child (CRC)

history; 1989, under the UN. It is the conention ratified by most states in the world. It is only the US and Somalia which have not ratified it. And most other countries have ratified these measures.

provisons include o policy; they intended to have a convention protecting children.

Although there are coverages to other conventions, the fact that children are generally not politically represented.

o the best interests of the child o the childs right to be heard.

Discussion o it addresses both civil and political freedoms, and eocomic and

social rights. This is an integrated instrument. In considering the conflict between these.

Actions o state reports are produced, the committee in Switzerland reviews

them.

o There is a system of individual complaints which is an additional protocol of the CRC.

Convention on the rights of persons with disibilities CRPD policy vulnerable group in need of special protecitons.

Discrimination treaties, why dont university professors?

women migrant workers

o health, not other persons issue: what is the logic behind making specific treaties for vulnrable

people. This is continually ongoing. Several others bodies that protect Human rights Reading

key issues; free movement of patients, blood and tissue cells, data protection, internal market flow, right to privacy nuder the EU.

The enforcement a. The Lisbon treaty establishes the jurisdiction of judicial review

through the ECHR. Threre are a number of provisons that deal specifically with the rights.

i. Art 1 on the dignity ii. Art 3 on the integrity of the person

1) a In the EU

they are influential because they do have binding nature. They are also implemented. There are so amny. There are many remedies. Smaller member states cannot challenge the EU

considering the relevance of health This is not a question of the EU. This has changed however. Partly

because some of the provisions of health serviecs is important econoic reasons. There should be a free movement of health services. There should be increased mobility within health.

significant $$ this is a large econmic impact. The European charter on fundamental rights

It is translated in many languages. It is in Danish. Principle article 35 everyone has the right to preventative health care.

This is an enforceable instrument by the court in Luxembourg. In this respect it is a question of member states. In the implementation of health or social rights. Article 34. On social security and assistance.

Secondary law within the EU

the directive on patient rigts on free movement of workers- it is not really long.

o for example where there is a cross border issue, (it is not saying that there is the same protection of patient rights, only in the context of cross border movement).

Driving force in this area. o This is specific to cross border internations therefore it is only

relevant with reference to ther instrumentts in Europe

Current reflections on current challenges in the field of human rights- discussion on the complexity of the law and its practical application 1) Judicialisation

Introduction o Ffrom the point of view of a lawyers there is a lot of complicated

law. It is not a lot of people who can sort this out. Finding a direction in the legal jungle. As a lawyer it is good!

Is this in the best interests of the citizens? o Do we need this law? Free access to a lawyer. Do we need all the

lawyers to be an agent between citizens and the law. Right to information. Even for a skilled lawyer.

2) Supervison bodies This has occurred regularly, there is a dynamic approach which appears to

be neutral. much of the responsibility is with the court, and it must be dynamic issue; is it too dynamic? Is it not dynamic enough? Should it be more

dependent or indepenedet on these insturments? Lack of supervision bodies

o Some of the instruaments without adminstartige bodies means that they really die out. For example the biomedial convention will be revised or may die out it doesnt have a source of

47 judges and o The court has become much more efficient.

3) National implementation *This is the key issue

even in the EU only certain rules are implemented domestically. This is parly formula if implemented in the legislation. There are significant differences between the member sates variety on how the states implement their oblgaitons and are binding themselves through the increasing number of insturments.

Quantitive implementation o many do not really give effect to this

The quality of the rule selection of current challenges in the field of health law

reason for the importance!! o There are many types of treatment that are available but which are

not accessible because of prohitive costs. The citizens have a high standard.

o there are certain things which cannot be covered. Often the US is compared through insurance schemes. Here the states generally cover them private insurance forms a small part of this.

The international normative framework of rights

1) historically the right to health was based on the utilitatan argument, regarding the prevention of the spread of infectious diseases. Gradually after WWII this argument was favoured through the implemention of the right to health. Deontologially accepting the relevance of health as a fundamental tenant of being a human.

2) Where is it a. 11ESC

i. marangopoulos; right to healthy living and healthy working conditions

ii. ECCR v Bulgaria, access to healthcare in Bulgaria iii. Interights v Croatia, access to health and reproductive services

in Croatia. b. AAAQ in the Biomedicine convention

i. More the actual provison of healthcare, not the underlying determinants.

3) In common law vs civil law countries a. It is more common to have the right contained in civil constions,

howver this does not deny the practical proovsion of health services in common law countries.

4) The scope a. Art 12 IECCT adopted gc 14 b. This takes a braod interpretation of this provison stating that it is not

the right to healthcare merely but also the underlying determinats fo health. Including housing, nutrition, this is backed up by studies that indicate that peoples underlying environmental aspects are highly determinative of their helalth.

5) Elements a. The AAAQ- AP appraooch

i. Availability; it requires that there are adequate healthcare facilties in the state

ii. Accessibility; this is non discrimination, fee? Econmic, social, without discrimaition on prohibited grounds, they must be accessible for marganilized groups. Affordability for all receive inforaiton about the right to health,

iii. Acceptability, respectful of cultural individuals, minorities, and communities etc.

iv. Quality v. Accountabitlity; moniroring and other processes, as is

identified by potts,

vi. Participation; that the public is largly engaged in the major decisions of the health sector,

b. General comment 14 on respect, protect and fulfill i. Respect

1. This is in line with other obligations, basically respect the existant rights. Do not discriminate, and pollute the water, do not cause harm to groups of individual, use of substances that are harmful to peoples health

ii. Protect; 1. is to ensure that individals refrain from infringitng on

the rights of others. It is the states responsibility to oversee that these people do not cause harm to one another. Budgetary, and judicial frameworks of protection, sanctions in the criminal law.

iii. Fulfull 1. Facilitate; assisiting communities to access the right to

health 2. Provide; to groups who are unable to access these

faclities, if there is not an adoption of a national framework or policy to deal with the right to health.

iv. International obligaitons 1. This extends to other countries, for example strictly

enforcing patient rihts for coutnries that are developing, or by providing aid to countries.

c. Obligations vs public health and medicines i. Medicince, is more individual focused

ii. Public health is strategic and based on group needs. Argument is that there is a greater need to consider the social factors and determinants that allow for health in a globalizing world.

d. Justiciability i. This is basically whether a right may be upheld in a court or

enforceable institution. Whether the right to health is subject to this is much debated.

ii. Many of these violations have been tried in lower or middle income countries where the abuses are more apparent and pertinent.

Lecture III Patient rights

overview definition, development sources related movements

o pub health o human rights

concept of human dignity balancing of different rights case law

developments in medicine and health care

there has been a great growth there are more treatment options new ethical legal dilemmas increasing age of populaitons many new questions increased technicality of medical care, and more creative. Because of this

developent there are scope and definition of patient rights

rights of individuaals who interact with the healthcare system includes rights to become a patient to access healthcare services. Rights

while receiving treatment, rights after treatment. Patient

User of the healthcare system, whether healthy or sick o It is not necessary that they be sick or healthy. For example you

may be engaging in preventative health care. Likewise th retention of records.

patient rights development

the conceptualization of rights of these patients has changed dramatically. o Right to professional conduct

Autonomy o Has only been a recent development,

The Nuremberg code (1947) o There were 10 ethical principles including voluntary informed

consent. This was a necessary development. Impact of the human rights development UDHR 1948 and ECHR

1950 o Based on these, after WWII patient rights were conceptualized in

the 1970s Declaration of the promotion of patient rights in Europe WHO 1994

what have been major public health movements?

Responses to the HIV aids epidemic, reproductive sexual health 1980s 1990s.

o balancing between protecting society, and balancing the rights of the infected individuals to retain a place within society.

New insights

Need to protect society also respect individual rights o Balancing social and individual rights.

Health and human rights: a theoretical framework 1994

this is because national health policies can have important impacts on the rights of individuals. These violations may also have health imapcts. Protection of rights and health are intrinsically linked together.

lack of confidentiality may seriously affect indiviudals Human rights patient rights instruments

declaration of the promotion of patients rights in EU WHO EU 1994 convention on human rights and bio medicine council of EU recommendations on patietn rights and biotechnology COE data proteciton convention EU law EU charter

general legal prinicples in the ifield of health care

dignity intergirirty eq treat privacy confidentiality equitable treatment and non disc

patient rights as human rights

life and health (civil and social rights) non discrimination right to information and autonomy right to confidentiality(information) and privacy (wider concept physical)

** the centrality of human dignity, Immanuel Kan and humanism

influence he has been incredibly influentiatl. Whilst everything has a human price, the human has dignity and is priceless. Our conceptualisaiton is based on the phil of Kant.

universal declaration of human rights

o dignity, upheld in all treatment, art 7 of ICCPR and art 3 of ECHR states

! noone shall be subjected to tourture, or cruel or degrading treatment or punishment.

Case Price v UK (2001) o degrading treatment of physically handicapped in prison, the oucrt

found that it was so great the falling short that the treatment was degrading to this woman. Principle it is not merely actions but inactions that may amount to liability under this provison

Also in prisons and other insuttions

all deprived of lierty, relevant for psychiatric. Application of principle

underpinning these rights is the concept of dignity, then the rights are methods by which this is actually made possible.

human dinity and non discirimnation article 1

parties and convention shall protect dignity, biology and medicine. there was a concern over the treatment of genetic anomolies. There were

genertic developments, and how these could be used to discriminate specific groups of people.

Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.!Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention.

Explanatory report to the biomedicine convention

the birth of the concept of self determination in healthcare

medical paternalism, has a long history in the healthcare sector. medical research

article 7 http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx 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.

nuremberg medical trial after WWII oct 1946 aug 1947

the trial documented murders, cruelty torture, and other degrading treatment as a result of the experiment.

The nazi doctros medicial killing and the psychology of genocide 1988 informed consent

informed consent seen as a kind of last defence, for the individual lack of trust in the medical prof, after WWII resulted in strict regulation of

medical research based on informed consent form the human subjet. medical treament and informed consent today protection form individual autonomy as the legal starting point today:protection individual autonomy as the legal starting point

human dignity protected through the protection of individual autonomy. There must be good reasons for the exceptions.

biomedical convention article 5

intervention in the health field with the free and informed consnent after they have been given appropritea information to the purpose and nature of the internvention and the conseqeuences and risks.

norwegian patient rights act

4-1 health care may be given only on the basis of the consent to fhte patient

unless a particular law or other legal basis provides an exception

if they are not able to understand the content of the consent. These are similar in other countries

the relevance of intervention

the concept of consent, can be given in different ways, if there are serious concerns. If it is a procedure of transportation, and other things there will be written consent.

there are serious questions where there are more serious measures, if it is an expereimentation, done with people who do not completely understand the risks you can talk about the requiremnts of disclosure and consent necessary.

the right to privacy

ECHR art 8- this is not an absolute human right, unlike the right to consent etc. It is about reasonable procedures by the state. They must regulate these exceptions.

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

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Relevance to autonomy It also covers physical interventions is an intervention on the private

sphere of the individual. This is touching upon you. Pretty v UK (2002) Stock v germany 2005 glass v UK Jehovas witnesses of moscow v Russia 2010

art 9 and 11 ECHR Pretty v UK

facts o 43 year old woman, with neuro denegenerative disease effected

physically but mentally clear. She requested to end her life with the help of the husband, is it a violation of privacy to reject her.

o argument was that ! privacy violation ! it was torture

holding o torture

! it was not actve, it was her own illness that caused her pain. o Privacy argument

! More complex discussion, it stated that the essence is the respect for dignity and freedom. It was undignified for her to be in that state. The court further held that in more sophistocation, many people are concerned that they be

forced to live on with physical mental decreptitude, should not be required to live on.

! nonetheless, this is necessary for the protection for the rights of others, and that there is to be no violation of art 8.

! Doctors were able to stop ending her life. There are justified policy grounds to maintain this.

Policy consdieraiotns o the state had an interest in maintaining a prohibition in not ending

lives in these circumstances. o http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-

60448#{"itemid":["001-60448"]} Storck v Germany (2005)

involuntary confinement in psyc hospita from 1977 to 1979 without a court oder was a violation of art 8. In accordance with the law.

all compulsory interventions raise serious concern over art 8. there was no breach of individual liberty

o it was justified to keep them institutionalized. But the court authorities must follow proper procedures. They need a court order for this purpose. To be legal they require very strong justificaitons

Glass v UK (2004)

facts o child treated against the will of the mother. o there was basically no free or informed consent because the mother

declined on behalf of the child. She clearly withdrew consent. The court decided that the will of the mother should be taken into account.

Jehovas witnesses of Moscow v Russia (2010)

facts o JW of M have approaches to medical treatment, in blood

transfusions they reect this on moral grounds. o personal autonomy, these are important principles, interpretation of

the guarantees. They refer to the pretty case. o The ability to take their life in their own choosing. They may

refrain from engaging in activities that are perceived to be dangerous and risky. Non treatment with the prospect of death within the personal autonomy of the treatment.

o the imposition of medical treatment, without the consent of the medical would nifringe on integrity and be in breach of art 8 of the convention. Autonomy.

the link between the case

of the children, if they were in threat of death, would it be the same outcome. Parents are not allowed to be deniedtreatment on behalf of the childs best interests.

it is sometimes not clear what the best interests of the child is in denying treament.

read some of these cases. restrictions on privacy liberty or autonomy the extent to which these are absolute values

8.2 liberty and privacy are not absolute rights, interferance in the interests of national secrity, freedoms of others. If the state wishes to mmake exceptions they must define it within the exceptions whichare outlined in these probsions.

We see this in people of unsound mind who are seen to be dangerous. Privacy or liberty violations.

interesting case** Enhorn v Sweden (2005)

detetion of a person who is infested by HIV, issue; in violation of the right to liberty? Was the state permitted to restrict

individual liberty to protect other people form society. if a person transmits to another erson is that a ciriminal offence? Of GBH?

This is one queston court held

the 19yo man with whom he had intercourse, there is no indication that he intended to do this, it would have been a criminal offence.

rationality o was this person that dangerous? Compulsory isolation of the

applicant was a last resort. This was a last resort measure. Because other measures need to be taken? The order of the application, for 1.5 years in total, the authorities failed to strike a balance between liberty and the

held o he didnt know that he was acutlaly infected, he didnt infect

anyone else? The right to information

this is one of the most violated rights, they are often not given specific information, or appropriate.

Trocellier v France (2006)

information states are obliged to adopte necessary measures and inform patitents

before hand. principle; the patneitn cannot give meaningful consent without proper

information of the procedures. privacy and confidentiality

article 8 o information about you is part of your identity that you should be

able to contorol. This confidentiality, is important to trust the medical profession.

o it is possible in some circumstances to disclose information

! this must be regulated however. In Z v Finland (1997) ! court of appeal judgement, [look at the conclusion]

Z v Finland (1997)

holding o consideration

! protection of personal data, is of fundamental importance, to enjoyment to the right to private and family life. Health data, is vital. It is crutial to respect privacy, and to preserve confidence in the medical profession and the trust in the health service.

! seeking diagnosis, preventive efforts form the community. principle

patient rights

relevance to humnan rights o the importance of using dignity in the value of all human rights. In

the case of pretty dignity was at stake, despite not getting her will. The respect for individual respect for autonomy lbeerty, and value are in the health system respected. Sometimes however ocial interests and pubic interests can outweigh rights to privacy and confidentiality. In the finland case it was that. In the Sweden case the protection was justified. There was insufficient proteciotn of pricacy.

o dusciionn ! this human rights framework is a usefula way of addressing

these issues for ht prteciotn of the individual annd balancing the interests fo individuals. Not spreading serious diseases. Even if it is very serious. You cannot use out of proportion interventions that are beyond that which is necessary like the aids case.

o Discussion for exam ! look for a balance in the cases, and how they approach the

issues. Consider how these concepts are found the balance that is necessary between social interests and human rights.

Lecture III 24 march Facts

more people will become disabled more people will be affected by illness because of old age developed states education affects disabilties, education is important. This

is a significant factor in this group. they are likely to be unemployed, and other social barriers.

The rights framework all humans are born equal the normative values embedded in the

instruments. Art 2 UDHR

Disability will be included in this

ART 1.1 CRPD Purpose is to promote, protect and ensure the full and equal enjoyemen of

all human rights and freedoms. Non discrimination

What does this mean in the context of disability? Does thi mean equal treatment, or is it more about creating specific opportunities for them.

The approach of the EU court, their decisions are insightful in this regard. Different treamtntt object and reasonable justification for different treatmet

non discrimination and disability in 2009 the court added disability to a list of suspect grounds of

discrimination. The margin of apreciaton is greatly reduced in cases on grounds of disability glor v Switzerland.

Non discrimnation and reasonable accommodation Principle when states fail to treat differently persons whose situations are

significantly different, they have a duty to provide services to persns who are disadvantaged. These measures are intended to be within state obligaitons.

It is not about treating people in the same way, but reasonable consideration for differences.

Equality in outcome. Accommodation for differences. Price v UK (2001) note this case

Facts o She was treated differently in prison, and was heavily disabeled.

The failure to accommodate for these measures, constituted degrading treatment.

o the norwegian judge Greve in referring to thlimmenos stated that it amounted to discrimination. In addition to degrading and inhuman treatment.

Principle o There were two grounds on which compensatory measures were

justifieid. Article 2 CRPD

discrimination on the basis fo disability means any distinction exclusion onr restriction on the bais of disability which has the purpose or effect of impairing or nullifying the recognition enjoyment or exercise, including denial of reasonable accmodation.

What are positive measures required by states. Article 5.3 CRPD States shall take all appropriate steps to ensure that reaonsbale

accommodation is provided. The right to healt

biomedicine convention art 3 o parties take into account available resources and health needs,

shall atake appropriate measures with a view to provison jurisdiction equitable access to health care of appropriate quality.

Principle it is about a general right to health. And state obligations, on grounds of equity.

What is a fitting standard?

in the explanatory report of the biomedicine convention, healthcare must be of a fitting standard. In light f scientified pogress and subject to a continuous quality assessment.

principle to fit the standard the state has to accommodate for different groups.

EU charter of fundamental rights article 35 Everyone has the right of access to preventative health care, and the right

to benefit form medical treatment. A high level of human health. EU charter of fundamental rights art 21

prohiition of discrimination on the grounds of sex or disability. Principle it is specifically mentioned in this charter. Therefore they should all be guaranteed for the enjoyment of health care and union policies, for all segments of society.

EU charter of hun rights art 26 union recognizes the right to benefit from measures designed to ensure

their independence social and occupational integration in the life of the community, recognizing the independence and autonomy. They are the responsibility of the union.

In practice however what are the physical barriers physial accessibility to buildings transport accessible information stairtypes and negative attitudes they are often denied medical care, more often than others.

Art 12 ICESCR and the AAAQ article 12.1

basic principle, right to health that everyone has the right to the highest attainable standard of physical and mental health.

principles that the states must live upto in recognizing the right to health, free clean air, water etc.

o available o accessible o acceptable o quality

basic requirments must be fulfilled. article 23 CRPD

there is a provsion take all appropriate steps to ensure access for persons within disability to health services. Gender sensitive, provide range quality and free or affordable health care.

population based public health programs. Principle this goes beyond what is expected for non disabled persons.

Inorder for the same quality of life to be expreinced there must be positive measures take. Discriminatory denial of health care and services.

Awareness and stereotypes there are obligations imposed in raising awareness throughout society

including at a family level. Access to faciliites 9.1 CRPD

transportation, information, physical environemtn

9.2. States Parties shall also take appropriate measures to: Develop, promulgate and monitor the implementation of minimum

standards and guidelines for the accessibility of facilities and services open or provided to the public;

Ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities;

Provide training for stakeholders on accessibility issues facing persons with disabilities;

Provide in buildings and other facilities open to the public signage in Braille and in easy to read and understand forms;

Provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public;

Promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information;

Promote access for persons with disabilities to new information and communications technologies and systems, including the Internet;

Promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost.

o multiple discrimination

Principle; there could be accompanying factors that cause discrimination. Sex, origin, sexual orientation, women.

Different forms of discrimination must be viewed together. 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.

Mental disability (illness)

Mental illness o

intellectual impairments dementia and alzheimers institutionalisation and violations of autonomy

council of Europe

recommendation 10 on the protection of the human righs and dignity of persons with mental disorder

o non binding legally but it does reflect a European consensus on normative best practices. The fitting standard allows for flexibility in interpretation.

o There is a detailed critera which exists in this. Article 5 of the EU convention

o right to liberty o allows deprivation of liberty including detention of persons of

unsound mind. Important case Winterwerp v the Netherlands**

o principle; the interpretation of the standard of deprivation of liberty. These requirements can be applied to the fitting standard. In regard to restricting individual lberty.

! unsound mind ! true mental disorder with medica expertise ! actual state of the mental health of the person ! the persons condition must be of kind or degree warranting

compulsory confinement necessity and proportionality ! continued detention must be justified ! appropriate condtions ofr the detained person

" for example if there is no treament specifically for them, it will not be justified.

Institutional challenges compulsory admission for people with intelletual deficiencies overcrowded physical restraints overuse of sedatives violence comp medical treatment control systems lack of respect for privacy and autonomy.

Art 3 CPRD main principles

main rule; respect for inherent dignity including ones own choices. Who is capable?

once declared to be incapable does not mean forever incapable. national law must regulate when something is appropriate and in order to

violate liberty and privacy. what are the limits

o despite being declared incapable, this doesnt mean it lasts forever. o decisional capacity at the time of the intervention is decisive o indiivudal assessment of mental capacity

legal capacity art 12 CRPD states shall recognize that persons enoy legal cap on equal basis and all

other areas of life. appropaite measures to provide access to the support they may require in

exercising their legal capacity. Diabeties

medical interventions, informed consent,principle merely because a person is disabled it doesnt mean that they cannot give informed consent.

principle informed consent is not dependant on disability

disability does not necessarily mean non informed consent. Support decision making, underpinned by the principle of autonomy. This is nonetheless violated quite regularly.

principle this is a way of getting around this problem of informed consent. If the docor evaluates the patient and they are able to understand, but need to be informed, then they may be given supported decision making.

article 25 o support, flexibility and max pres of deision making capacity. Free

and informed consent to medical treatment. Children

o are also allowed to o http://www.mdac.info/sites/mdac.info/files/English_Supported_De

cision-making_An_Alternative_to_Guardianship.pdf case note

shtukaturov v Russia (2008) o facts; legal incapaition of the applicant violated rights to a fair

trail, and respect to private life. Incapacitation without court review also violated the right t liberty.

o law applied, art 8, requires; tailored made response to the ind or degree of mental disorders in question with regard to legal incapacitaiton orders. (the decision maker must make a tailored deicison, if this flexible consent doesnt make them capable then proxy consent must be provided.

Principle o If a patient is uncapable of consenting an alternative tailored

approach must be taken, and proxy should be used as a last resort applying article 6.

Article 6 o In seeking to protect unconsenting adulst

! Direct benefit, proxy consent, information and participation.

! information and participation. o Intervention in the health field

! Can only be taken into account direct benefit. Therefore the intervention has the onus of proving that they will directly benefit the patient. It is protection of the best interests in a paternalistic sense, compared to the child rights convention. Comparing it to ECHR 8.2 necessity and proportanility, this standard is much stricter. The best interest of the person must clearly outweigh expected or possible harms.

Proxy consent Where according to law, an adult does not have the capacity to consent

because of a mental disability. This intervention may only be carried out with his or her representative, provided by law for example. Different countries will have different regulations, this is within the frame of the biomedicine convention.

What are the limits Domestic law must specify the reaosns for depriving the person of the

right to consent

proxy conset participation.

o They must take part, but this is not actually in making a decision. This is the same as children.

Older persons and the right to health. Older persons and the right to health, growing number of people who are

old. Aging, health and health care

o Health concerns increase and disability and illness rise. At the same time, older persons do not have sufficient access to

appropriate health care services. o Especially for the oldest people.

Common health problems and related disabilities o Disease, stroke and non communicable diseases. Poor nutrition,

increasing levels of obesity. The health paradox

Instead fo decreasing our overall healthcare needs an improved standard of health may in fact generate increased healthcare needs.

Article 3 biomedicine convention Take into account the health needs, and available resources, appropriate

quality of provision of srvices. State obligations

Absense of unjustified discrimination regarding health care, satisfactory degree of care for all groups, reasonable accmodation for different needs thimmenos v Greece.

Fitting standard considering scientifiec progress, subject to continuous quality assessmet.

Especially for old people. If there is lack of access to appropriate care, because serives are not

effectively provided then this can be a breach. Ie if they need emergency assistance.

article 6

needs to be effectively implemented to positively induce engagement in making decsions.

Thlimmenos v Greece (2000) discrimination

difference treament, without objective and reasonable justifiiecation, whose situations are significantly different.

Acceptability culturally and ethically appropatie, gender and lifecycle requiremnts. they must be designed to improve health statuts, CESR for old people

o specifically designed o knowledge o and awareness of typical symptoms that define this group and

induce lack of access.

in conclusion in discussing disability as a concept we do not use the medical definintion.

It is also about how society responds to these kinds of disabilities. States are obligated to accommodate for these differences, in taking into account the different disabiities that define each of these groups.

there are also identifiable links between social, economic, mental and physical disabilities.

law o conventions CRPD and ECHR

right to privacy and liberty discrimation and autonomy

o what does it mean, it is more about positive steps to ensure that discirmiantin is avoided. In failing to take positive steps they are discriminating.

Autonomy o

informed consent states must define the direct benefit.

Persecitves

Un treaties then health care privatisaiton

question abortion law in Australia restriction, cut off period, statistical data, high or low relative, teenage

pregnancy illegal abortions, reproductive health information, undocumented migrants

right to health as a human right

different types or generations of human rights, these are considered to be interconnected.

o civil and political rights, age of enlightenment, 1800s. These contain what we consider to be rights associated with civil society. Freedom of religion, torture, and health

o economic social and cultural rihts, health, these can be traced back to the industrial revolution, 19th century, 1919, social rights movement.

o collective rights, these were recognized at the beginning of colonisaiton, self determination of peoples. Right to development, environment.

1993 vinenna declaration and program of action o where it was stated that all rights are universal individible and

interdependent and interrelated. The are self reinforcing. Which rights are important for the protection of health

Civil rights, Right to life, prohib of torture, inhuman degrading treatment. economic social and cultural rights, these include the right to health,

adequate standards of living, food, social security, progress. Health the history of this right

Post WWII in 1946 there was optimisum, physical, mental and social wellbeing. It is unachievable, especially for governments. This can be interpreted as supporting the mental and social aspects of helath, creating these conditions.

What are the different interpretaitons rawls 1971

o human health is a natural good, not socially produced, it does not come within the sphere of social justice different approach, the capabilities approach.

Benkatapuram (2011) o health capabilities, building on mhars recognisigng the moral

entitlement for the capability of being healthy. A right to a cluster of entitlements to learn to be healthy.

o for example a disabled person cannot walk, they have needs to function in society however.

Discussion o Therefore there is a mvovement away from the WHO definintion.

The rawls approach has been largely dropped and it is the physical capabilities.

1999 PHD thesis,what is health as a right?

Right to health care, too narrow right to highest attainable standard of health, broader right to protection of health, art 11 eu social charter, brother on the EU

convention of CPR. right to health, this is the term that is currently used most commonly.

where is it located

at the UN o 12 ICESCR, brother of civil and political rights in 1966 o 12 CEDAW women o 24 CRC children o 25 CRPD o 28,43,45 MWC o 24 CSR o 25 ILO 169

ratification

ICESCR, they have a problem with economic and philosophical basis. There are millions of uninsured persons, it has not ratified the treaty.

Regional level

EU o art 11 Eu Social Charter o Art 3 Biomedocne convention o 35 EU charter on fundamental rights (constitution) this is a moot

point of interpretation Africa

looking at the EU

art 11 ESC o take app measures to remove causes of ill health, education,

econuragement individual responsibility, prevent epidemic endemic and other diseases.

national constitutions

UK no written constitution Ireland no ESC netherlands steps to promot the health of the population, has constitution,

ESR but they are not rights, they are obligations on the state art 22. Czech Republic prior soviet state, explicity stated right to health. Citizens

have the right on the basis of public insurance, protected under law. starting point, right to health

art 12 ICESCR o how to think about this provison

general comment 14 o adoted in 2000, the legal status is not legally binding, they are

comments, it is nonetheless an authoritative docuemtn. o not a right to be healthy it is about health care, and underlying

determinants. WHO

o underlying determinants to health, genera comment 14 AAAQ

o accessibility (non discrimination, physical accessibility, affordability, information accessibility), availability, acceptability (ethics and cultural consideration especially in consider informed consent), quality

respect o negative

protect o positive obligation , to regulate the actors in the helath system to

ensure that human rights are not violated. fulfil

General comment 14 Core obligations, right to min services under all circs, irrespective to

available services. o The idea is interesting in that in an emergency, for vulnerable

groups, undocument migrants, do they have a right to this minimum.

Primary health care 1978 Example of a case at the UN level

CEDAW communication 17 2008 there is a complaint mechanism, where these parties may be considerd. Maria de Lourdes da silva pimentael v Brazil on behalf of Alyne dee silva (the desceased)

o Article 12 2 (e) recommendations 24 28 Facts

o She was pregnant, the foetus had died, she only got the surgery 14 hours after labour was induced. Her health deteriorated and she died. Her mother submitted the case on her behalf.

o Argued that the healthcare was provided much too late, the committee recognized this, and considered the violation.

o the state was responsible for the malfeseance of the state. In outsourcing medical services to these, the state maintains an oblgation to protect, and regulate with regard to the right to health.

At a European level, there are more of these cases the monitoring body is the EUc committee of social rights council of

EU, EU social charter, collective complaints mechanism check the website coe.int/t/dghl/ monitoring

FIDH v france, migrants marangopoulos v Greece, miners ERRC v Bulgara gypsies INTERRIGHTS v Croator (AIDS descrimination

State approaches in different courntires

treatment and action campaign CCT8/02 if you had HIV and were pregnant, then the baby wouldnt contract Aids.

The government only decided to use this in certain treatment centres. This was seen to be an outright disaster. They were wholly rejecting this approach. The constitution has jurisdiction, the constitution is enforceable in the state. There was a rejection of the core, min services.

issue was the right to health violated held; that there was indeed a violation, of this right because they should be

more dispursed. public health perspective

mackintosh and koivusalo o there has been research undertaken in this area. The more that

govenrmetns invest in heatlh care, the better funds. o greater exclusion of children from treatment when ill when higher

primary care commercialization. o the states duty to protect,

human rights law, and the indirect responsibilities of states

o neutral, yet, the human rights perspective can have serious human rights consequences. We have seen this in public health research, it may lead to worse outcomes for people.

Economic accessibility o ensuing that these services are affordable for all

obligation to protect o to ensure that it does not constitute a threat to accessibiiity and the

quality of health facilities goods and services. If you are a state, then how can you examine the consequences of these privatization efforts? Basically apply the AAAQ

will it lead to more efficiency?

enhance the accessibility o private health companies are heavily regulated by the government.

Ie they must accept all patients. This is incredibly important. acceptability

o protection of data, will it still be protected. They do not necessarily have an interest in protecting this data.

What are the effects on the quality of the care, ie if they are outsourced to staff in private facilities. Do they receive adequate training.

vulnrable groups and non discriminiation, tthis *** can be a useful framework of the discussion in the paper.

the right to health, formal by law and substantive equality

o this goes further than law, you need to really do more to achieve the factual equality of these. Ie positive discrimination, reproductive needs of women.

General comment 20 CESCR direct vs indirect discrimination

o direct- an individual is treated less favourably because of a reason connected to a prohibited ground of discirmaition. These are found in the treaties.

o This may be on the basis of sex for example. o law policies which appear neutral, have a negative impact on

rights, as distinguished on prohibited grounds. ! For example birth certificate is a prerequisite for health

care. Discrimantion CESCR GC 20

Prohibited grounds other status; disability age nationality marital family sexual orientation,

health stuate, place of residence. For example a health stauts. Discrimaition on the basis of health stautts

there should be measures taken to avoid where access to health insurance, will amount to discrimation, if no objective crieia can justify differentiation. If there is no stigmatization, health insurance,

vulntrable groups is discussied in GC 14- 18-24 ethinci minorities, undocumented migrants women children disabled and elderly. How to ensure that they are not rejected from denmark oly provides emergency series, spain grated universal access.

WHO debate, the social determinants of health

The issue; there is access to health car , and the underlying determinants of health. This is a term that comes form social medicine.

history, 2006 WHO adopted report about social determinants, this is relevant to bring back to health as a right

this is about where people grow, they are born live and work. It is about distribtion of money power and resources at a global level. It is really a matter of social justice.

Deciding on your health staus, it may be worse. What constitutes health

Genetic 30% behaviour 40% health care 15%

life expectancy

college teachers, 82 civil servants Machintach,

Capabilities approach,

benkatapuram four dimensons WHO closing the gap in a generation,

o Sir Michael marmot, purring the right remedial differences and within countrie , is a matter of social justice.

issue; how to approach this from the perspective of human rights

from a normative perspective, what standards should be required based on human rights law. Education

what is she trying to sya o underlying determinants, social determinants, there are similar

things, o health care,

how does she deal with this

it is a conjucntive approach, the right to housing, education, right to health, housing conditions. What are the major determinants

the homework of checking the abortion legislation in the country. Right to a safe and healthy environment? Universal declaration of human rights art 1

policy it is a liberal philosophy connected to the individual endowment of reason. This is linked to an informed decision.

What is the relevance of reason? there are many groups including children who dont really have the

capacity to reason. We dont expect them make informed decisions about healthcare issues.

adults and children, who are not able to express their opinons, or older children who dont have the legal capability to make legally binding decisions. Adults with severe mental disabilities

are anoher vulnerable group if they are also endowed with a physical or mental disability. There are many different health problems that arise later in life.

the concept of self determination is challenged if

principle, it is not that they put themselves at risk but that they dont know the extent to which they are putting themselves to risk.

lack of the ability to make informed deicisons and thereby uts humself at risk unknown or uncomprehensible to him or her.

The reaons that these patients are interesting in a human rihts framework in that they dont fully understand the nature of the risk that they are exposing themselves to. They may be afraid of paid, or needles, they cant comprehend the benefit of enduing a small pain for a longer period.

should we completely abandon the idea of self determination when dealing with these different groups of people?

There is a tendency to completely disregard their porential of self determination. You should override this with your paternalistic efforts at bettering their circumstsnaces.

however what are the risks in taking away self determaintion? there is a luring risk of abuse of power, when other people make these

decisions how are you guarded against an abuse of power. so how do we actually protect these vulnerable groups?

Protect from abuse of power form the authorities bad judgements, safeguards of others[ this is distinguished from the first in

that we have a legal guardian in custory, they may not have their own agenda but you cant trust their judgement]

own bad judgement safeguards, there is abuse risk that is hugher when

there is an unequal balance of power o indiivudal relies on help this goes for o children o adusts without the ability to have informed consent

the reliance on the welfare state o because of reliance on this there may be an abuse of power. o the prior risk was to do with incarceration, or other violent

retaliation. o being put into a vulnerable position is another abuse in that they

are reliant on the help. conflicting interests of authorities and individual citizens in healthcare

the individuals interest in effective non invasive respectful treatment without side effects.

if not possible then it should be as close as possible to these ideal goals. authorities may have different interests

research interests o potential for abuse

interests of society as a whole o you dont want it to be too expensive

economic interests personal interests in representing the authorities

indivdual doesnt want treatment WWII

removed brains of the dead psychiatric patients they removed them and stored them for research interests, this was not in

the interests of the patients and the relatives. This is an example where research interests and society conflicted with the patient and the relatives. There was a huge discrepancy between these two particular interests.

case study

a guy who was probs diabetic, with big wounds on his leg. The staff at the nursing home wanted to treat them, but it hurt badly to change the band aids so he didnt want them to treat them. This may was in the centre of an apartment with nursing home,who didnt want treatment.

holding the court held that the hospital was able to treat the wounds. This is a clear example of a situation where the individual;s own interest was in a discrepancy with the authorities.

Another situation person doesnt want treatment, authorities without interest, and relatives want treatment

this will never be a problem with an adult with a normal legal and mental capacity.

denmark- another conflict of interest

when you have night staff in the hospital. It was a waste of time and resources. They therefore came up with the idea that they could use the quiet hours to wake them up, dress them, and put them back to sleep. This was the argument.

the economic interests of the nursing home was conflicting with a normal routine, and a day sleep.

it is not healthy to be woken up in the middle of the night. Furthermore when the authorities are personalized, when they walk into the patient.

nursing home in denmark

she killed 4 people, they were said to be mercy killings. There had been unexplicable deaths. She was charged with this. Despite her personal interests, there was a potential conflict of interest.

need for protection against bad judgment

a common thread is giving the family more of a say. economic interests

o having a relative in the house, access to pension and finances, access to child support

o unsound emotional bond o unable to see own limitations regarding the necessary care. At the

time the authorities discovered that she had a problem she was unable to see clear answers from anything. Dehydrated and malnourished. She didnt have great health.

Need for protection against own bad judgementd

Rule of law as a protection against abuse of power goal; of rule of law is about minimizing risk of abuse of power by

authorities. principle is that individual must give informed and free consent to

interferance with personal matters, or it must be based in law. o therefore citizens must await for the legislators to give them a

legal basis to interfere int eh personal lives of the citizens. patients not capable of consent protective elements for vulnerable people. These measues ensure that abuse of power does not occur.

all interferance must be based in law o legislation o rule of necessity for unforeseen situations o duty of care, a duty to render help if needed and not rejected

if anyone should be granted the possibility to consent on behalf of someone else that too must be based in law.

lecture II patient medical professional

informed consent- duty to collect information duty to give confidentiality- duty to ensure

necessity

if the patient says they dont want the treatment, then there must be a legal basis to acuire the treatment. Unless there is a legal basis.

in the norwegian case, there was necessity argued. If they didnt have this they would die, it was also about protecting other patients in the nursing home. If he wansnt there, in the woods then the outcome may have been different.

information

you cannot withhold information, but you cannot not tell. confidentiality

he or she must know everything. If this was the case in all cases ## what is the core issue?? where the child or the patient cannot give consent? The new issue is ;who should give consent? Should they both get information? Should their interests outweigh the childs? unique characteristics that distinguish children from adults

everyone who is a child has a legal guardian. You dont need that as an adult.

types of rights

indivudual rights

o the right to act or not act, to be protected from other peoples actions

protection rights o likewise they have a right to be protected by someone elses

actions. This is done by custody. The ramifications of custory

principle; only if you have custory over the child can you make a decision on their behalf. This is not linked or relatd to biology.

duty to act: the custory holder can act in all matters concerning the child unless made by law.

duty to care: for the child in the home and outside the home, they must seek medical care if this is available. It is about making a decision, and allowing discretion, it must be in the interests of the child. If you dont care for them, they can be removed from the home.

Overall legal framework

the Oviedo convention [on human rights and biomedicine] covers individuals undergoing medical treatment or who are participating

in medical experiements. UN convention of the rights of childthe EU conv on Human rights everyone including children

when the parent give consent on behalf of the child

art 6(2) art 6(2) sec 4-4 UNCRC art 12(1)

Progression to the rights o fhte child, in Norway, and Iceland there are fixed age limties.

o at age 16 they can give informed consent o aboove 12 can offer opinion on matters concerning their health.

Age 15 o In denmark this is the age, and it is the age

the parent giving informed consent on behalf of the child

principle the partent or guardian is given the same access to information about the risks and benefits of the treatment as the child. Because eiwhtout this informed consent cannot be made.

what about the childs right to confidentiality, and privacy UNCRC 16(1) right to privacy ECHR art 8 ight to Privacy.

in Norway

s 3-4 of the Norwegian patients rights act o is the patient 12-16 information for reasons that must be respected

does not want this o infomration is necessary in ordert o fulfill the parental

responsibilities the information is to be given regardless o fhte

childs wishes. Thus there is a limitation. [compare this to denmark where it is all information that is given or needs to be given]

o it cannot be promised to the child that they have a right to confidentiality, because it is linked to a more fundamental concept of parental responsibility. Everyone regardless of age can be informed about contraceptives confidentially.

in a case

there is informed consent, as the custody holder for someone to receive treatment.

Next issue there are limitations of the capacity for the adult to consent to certain

matters, there are certain apparent boundaries. o ECHR art 8 everyone has a right to respect for his her private

family life o ECHR art 9 everyone has the right to freedom of thought

consnience and religion ENCRC art 3

o all actions concern children whether undertaken by public or private social welfare institutions courts of law administrative authorities or legislative bodies the best interests of the child should be a primary consideration, health specific boundaries. What is therefore the best interests of the child?

o