1

Human Rights – Origin and Scope

Joy WingfieldShort residential course

Session 2 September 11th 2006

2

Nothing new

• Aspects of human rights are the basis of – Moral philosophy– Religion– Humanitarianism– Ethical codes

• What it is to be human

• How human beings should behave towards each other

3

What is new is rights

“We do not all agree on whether one should go to church on Sunday but we do agree that everyone should have the right to do

so”John Rawls: A theory of justice

Just because someone has a right to something, does that mean there is a

corresponding obligation on someone else to supply it/ help them to get it?

4

Recent Past

• First wave: Focus on concepts of liberty in late C18th as a bulwark against totalitarianism and religious persecution

• Second wave: Focus on community interests post WW2 – response to brutal atrocities, promotion of dignity, equality and community

• Third wave: Focus on mutuality, post cold war through controls on corporate excess and an ethic of human rights

Values for a Godless Age: Francesca Klug

5

Civil liberties to human rights

• Not enough to hope that governments will refrain from tyrannising their people

• Need for a positive statement of individual rights (American Constitution)

• Existing “culture of civil liberty” in UK from the common law

• Something that is a problem for “foreigners”

6

After the war (WW2)

• Events “outraged the conscience of mankind”

• Formation of the United Nations

• UN Charter 1945 – no bill of rights

• Universal Declaration of Human Rights from the UN in 1948

• UK signed up but not a legally binding treaty – moral and legal influence

7

ECHR – convention and court

• European Convention for the Protection of Human Rights and Fundamental Freedoms created in Rome in 1950

• Ratified by UK in 1951

• Court in Strasbourg set up in 1959

• Hears cases from people with a grievance against a signatory state

• 41 judges – one for every signatory

8

ECHR – convention and court

• Right to take case to Strasbourg only if exhausted domestic law

• Not available in UK till 1966

• Almost all signatories implemented into domestic law but UK not until 1998 in the Human Rights Act

• NOT confined to CITIZENS but for all human beings – even asylum seekers, etc

9

What rights? 11 in ECHR

• The right to life• Freedom from torture, from inhuman or

degrading treatment; from forced labour or slavery; from retrospective crimes or penalties; from discrimination

• Right to liberty and a fair trial; to privacy; to marriage and a family

• Freedom of conscience, expression and assembly

10

The Human Rights Act 1998

• Only roughly equates to the Civil Law• Interpretation is not bound by precedent

– Will interpret in light of present day attitudes and conditions

• Interpretation of statute not exclusively” as written”– Will interpret to be compatible with human rights

• Court can challenge and over-rule statute if not compatible with human rights– That is, can challenge the British parliament

11

Application of HRA

• Grievance must be from an individual whose rights have been breached

• Duty placed on public bodies and

• On private undertakings that provide public services

• So applies to all patients receiving NHS services but not necessarily to private healthcare

12

Contents of HRA

• Contained in Schedule 1 Part I, articles 2-18

• Let’s go through copy in your course notes

• Amendments in Part II, notably abolition of death penalty

• Schedule 3 contains some “derogations” to deal with terrorism, originally in Northern Ireland but potential to extend?

13

Application to healthcare

• See Austen’s presentation tonight• Conception, contraception, abortion• Euthanasia, assisted dying• Mental health• Consent• Resource allocation• Confidentiality, privacy• Disciplinary and registration processes

14

ExerciseHow might breaches of The Human Rights Act arise in the delivery of health care?

15

Codes of Ethics

Joy WingfieldShort residential course

Session 2 September 11th 2006

16

Club rules

• Ruddington Golf club

• CORGI - Confederation of Registered Gas Installers

• Girl Guide Promise

• Mission statements

• Express values, culture, standards, behaviour, performance, qualifications

• Membership; right to practise

17

Professionalism

• Learned professions• The law, the church, medicine• Repository of education and power• Protection of privilege• A “vocation” – religious calling• Superior technical and moral

authority• Paternalism

18

Healthcare ethics

• Hippocratic Oath 500 BCE• “Do good or at least do no harm”• “Act in the best interests of the patient”• Tell the truth, do your best, preserve secrets• International Code of Medical Ethics 1983• Declaration of Tokyo 1975 (torture)• Declaration of Helsinki 1996 (research)• Incorporation of ethics of human rightsAppendices of Mason and MCall Smith, Law and Medical Ethics

19

The Pharmacy Code of Ethics

• As at August 2006!• Principles underpin practice• Beneficence, integrity, competence• Professional independence and

judgement• Be accountable• Justify your decisions• Not all-inclusive

20

What is the Code for?

• Tell us what’s right and wrong?• Establish the culture?• More sticks to beat us with?• Values over and above the law?• Blueprint for the unknown?• Empowering individual pharmacists?

21

Benefits of Codes of Ethics

• Such rules are usually the result of reasoning and analysis

• Useful guides for action• Rules are usually public so health

workers and patients will know what to expect

• Sometimes short and sweet

22

Limitations of Codes of Ethics

• Frequently need interpretation• Rarely applicable in all situations• Need constant updating• Become unwieldy or remain superficial• Take away choice and judgement,

application of decision making skills• Recognise only the professional’s

judgement• No help in resolving conflicts

23

Exercise:Using the consultation documents in your folder, debate questions 6 and 7 and feedback.What are your views on question 8?What issues should be expanded upon in the added guidance?What training needs do you identify?

24

And finally

• Some sources of updates in healthcare law and ethics – there are dozens!

• Journals– Journal of Medical Ethics– British Medical Journal – ethics briefings– Medical Law Monitor

• Academia– Imperial, Manchester, Cardiff, Keele, Herts,

Edinburgh, Kings and many more