Table 8: Patient Care and the Right to Participate in Public Policy
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||Treaty Body Interpretation|
|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.||HRC [Jurisprudence]: The author claimed that by preventing her daughter, who has a permanent mental impairment, from obtaining a termination of pregnancy, as permitted under the State’s criminal law, the State party violated her rights under the ICCPR. The State’s criminal law permits female rape victims with a mental disability the right to terminate a pregnancy. The Committee found a violation of Art. 7, Art. 17 and Art. 2(3) in relation to Arts. 3, 7 and 17. L.M.R. v. Argentina, CCPR/C/101/D/1608/2007 (2011).
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.
|Human Rights Standards||Case Law|
|ECHR 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.||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.
Hurtado v. Switzerland, 17549/90 (January 28, 1994).
ECtHR: The applicant did not receive timely prenatal genetic testing that would have allowed her to make a decision to legally abort her pregnancy. The Court found that the determination of whether she should have access to genetic testing “was marred by procrastination, confusion and lack of proper counselling and information given to the applicant” and that the lack of regard of the patient’s rights and her suffering amounted to a violation of Art. 3. R.R. v. Poland, 27617/04 (May 26, 2011).
ECtHR: holding that the failure to respond adequately to the prisoner’s deteriorating mental health amounted to inhuman or degrading treatment or punishment. Keenan v. United Kingdom, 27229/95 (April 3, 2001).
ECtHR: holding “that there has been a violation of Article 3 of the Convention as regards the lack of adequate medical treatment and assistance provided to the applicant while he was detained, amounting to degrading treatment.” Nevmerzhitsky v. Ukraine, 54825/00 (April 5, 2005).
ECtHR: in discussing what constitutes a violation of Article 3 for prisoners, “[t]he Court observes that there are three particular elements to be considered in relation to the compatibility of an applicant’s health with his stay in detention: (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention, and (c) the advisability of maintaining the detention measure in view of the state of health of an applicant . . .” The applicant in this case suffered “chronic and severe mental disorders including schizophrenia” and was held in an ordinary detention center without special medical attention. The Court held “that the nature, duration and severity of the ill-treatment to which the applicant was subjected are sufficient to be qualified as inhuman and degrading.” Musial v. Poland, 28300/06 (January 20, 2009).
|ECHR 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.||ECtHR: examining whether there was a violation of Art. 3 after the applicant was held in a police station cell despite his psychological disorders, which were registered by public authorities as a second-degree disability. The Court found that the authorities were “under an obligation to have him examined by a psychiatrist as soon as possible in order to determine whether his psychological condition was compatible with detention, and what therapeutic measures should be taken” and that this lack of medical attention violated Art. 3. Rupa v. Romania, 58478/00 (December 16, 2008).|
Committee Against Torture: Noting overcrowding, inadequate living conditions, and lengthy confinement in Russian psychiatric hospitals, which may be “tantamount to inhuman or degrading treatment.” CAT/C/RUS/CO/4 (CAT, 2006), para. 18.
World Medical Assembly, Declaration of Tokyo: Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment (www.wma.net/en/20activities/10ethics/20tokyo/index.html).
Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, G.A. Res. 37/194, UN Doc. No. A/RES/37/194 (Dec. 18, 1982) (http://www2.ohchr.org/english/law/medicalethics.htm).
Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1999) (www.ohchr.org/Documents/Publications/training8Rev1en.pdf).
Code of Conduct for Law Enforcement Officials, G.A. Res. 34/169, UN Doc. A/RES/34/169 (Dec. 17, 1979) (http://www2.ohchr.org/english).
The European Charter of Patients’ Rights, Art. 11: 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 treatments and simplifying patients’ access to them.
Declaration on the Promotion of Patients’ Rights in Europe
Art. 5.10: Patients have the right to relief of their suffering according to the current state of knowledge.
Art. 5.11: Patients have the right to humane terminal care and to die in dignity.