Table 5: Palliative Care and the Right to Non-discrimination and Equality

  • A country decides that it is not worth investing precious resources in providing care for the elderly.
  • Former drug users are denied access to opioid-based pain medication.
  • A state provides only limited health services to non-citizens and refugees, denying them access to palliative care.
Human Rights Standards Treaty Body Interpretation
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.

ICESCR 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.

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.

CESCR General Comment 6: “The range of matters” for which discrimination on the basis of age is acceptable “is very limited.” In fact, States parties “are obliged to pay particular attention to promoting and protecting the economic, social and cultural rights of older persons.” Paras. 12 & 13 (1995).

CESCR General Comment 6: Emphasizing the need “to eliminate any discriminatory legislation and the need to ensure the relevant budget support” for the elderly. Para. 18 (1995).

CESCR General Comment 6: Upholding “the right of elderly persons to the enjoyment of a satisfactory standard of physical and mental health” and urging of “a comprehensive view, ranging from prevention and rehabilitation to the care of the terminally ill.” Para. 34 (1995).

CESCR: Recommending that Bulgaria “take affirmative action for the well-being of older people,” in light of their increasing number. [ICESCR, E/2000/22 (1999) 46, para. 238].

CESCR: Noting “with satisfaction” Finland’s inclusion of age as a prohibited ground of discrimination in its constitution. [CESCR, E/2001/22 (2000) 73, para. 433].

Human Rights Standards Case Law
ECHR 14: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ECtHR: The Court considered “the applicant’s complaints that she has been discriminated against in the enjoyment of the rights guaranteed under that provision in that domestic law permits able-bodied persons to commit suicide yet prevents an incapacitated person from receiving assistance in committing suicide.” However, it found no violation of Article 14 because it would be too difficult to judge who is incapable of committing suicide and would undermine the law’s purpose to protect life and to safeguard against abuse. Pretty v. The United Kingdom, no. 2346/02, para 86 (April 29, 2002).

Other Interpretations

SR Health: The right to health clearly proscribes discrimination in respect of age, including within palliative health care services. States are obliged to respect the right to health by refraining from denying or limiting equal access for all persons to palliative health services (E/C.12/2000/4, para. 34). Age-based discrimination that is sanctioned on the basis of risk/benefit profiling cannot under any circumstances be considered appropriate in the context of palliative care, which aims to improve quality of life, rather than its length. A/HRC/18/37 (July 4, 2011).