Standard of healthcare: what obligations in human rights law?
Ineta Ziemele PhD (Cantab.)
Professor of international law at the Riga Graduate School of Law
Judge of the Constitutional Court of Latvia
Innsbruck, 26 September 2016
Let me at the outset delimit the scope of my speech. There are several layers of legal regulation on human rights in Europe that may influence the concept of standard of healthcare or even provide a definition of what is the minimum standard of healthcare. These layers are: domestic law, including the bills of rights in national constitutions, the EU law, and international law which includes such treaties as the European Convention on Human Rights and the (revised) European Social Charter. I believe I am better placed to comment on international law with a particular attention to the Council of Europe instruments. However, I will provide a few comments on constitutional law as well.
Let me now clarify and give some examples of what the minimum European human rights standard is and how it is affecting the debate on healthcare standard. It is important to recall that the Council of Europe instruments set a minimum human rights standard which does not affect the constitutional choices in the Member States to provide for a higher standard of protection of human rights. In accordance with the EU Charter on Fundamental Rights, the European Convention on Human Rights (“the Convention”) contains the minimum human rights standard and consequently the Charter can set higher standards of human rights protection.
The Convention does not contain a provision concerning the right to health or healthcare as such. The Convention follows the ideological division existing during the Cold War era when the Western democratic world emphasized the role of civil and political rights which the the Convention indeed provides for. At the same time, the Socialist countries put an emphasis on social and economic rights and therefore within the United Nations context there are two Covenants. One is the Covenant on Civil and Political Rights and the other – the Covenant on Economic, Social and Cultural Rights. In Europe, the matters such as health, housing, social benefits and other socio-economic rights are traditionally more appropriately addressed in instruments such as the European Social Charter or the revised European Social Charter.
The era of an ideological division has ended. In 1993, the Vienna World conference on Human Rights announced that: “All human rights are universal, indivisible and interdependent and interrelated”. Thereby it was recognized that that the division that had emerged subsequent to the adoption of the 1948 Universal Declaration of Human Rights did not have a solid legal or philosophical basis.
The European Court of Human Rights (“the Court”) has had to admit that it is becoming increasingly difficult to define precise and clear boundaries between the fundamental rights and freedoms enshrined in the Convention and socio-economic rights. The Court is thus inevitably called upon to consider cases having a socio-economic dimension, including health, where they raise an issue under one or more fundamental civil and political rights guaranteed under the Convention. Consequently, health-related issues have arisen before the Court in a wide variety of circumstances.
Minimum European human rights standard
I would like to recall that Article 11 of the revised European Social Charter provides as follows:
“Article 11 – The right to protection of health
With a view to ensuring the effective exercise of the right to protection of health, the Parties undertake, either directly or in cooperation with public or private organisations, to take appropriate measures designed inter alia:
1) to remove as far as possible the causes of ill-health;
2) to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health;
3) to prevent as far as possible epidemic, endemic and other diseases, as well as accidents.”
The compliance with the obligations stemming from the revised European Social Charter is monitored by an expert committee – the European Committee of Social Rights – which is also authorised to receive collective complaints from several non-governmental organizations and to monitor the State reports regarding the implementation of the Charter rights. There have not been too many complaints regarding Article 11. The few points that the expert committee has made are the following.
The Committee has noted that “the right to protection of health guaranteed in Article 11 of the Charter complements Articles 2 and 3 of the European Convention on Human Rights – as interpreted by the European Court of Human Rights – by imposing a range of positive obligations designed to secure its effective exercise.” This normative partnership between the two instruments is underscored by the Committee’s emphasis on human dignity. In also stated that “human dignity is the fundamental value and indeed the core of positive European human rights law – whether under the European Social Charter or under the European Convention of Human Rights and [that] health care is a prerequisite for the preservation of human dignity”. In other words, the aim of the healthcare system is to guarantee the respect for for human dignity. The Committee further commented that: “under Article 11 para. 1 of the Charter, health systems must respond appropriately to avoidable health risks, i.e. ones that can be controlled by human action, and states must guarantee the best possible results in line with the available knowledge”.
How does the protection of human dignity, as one of the core concepts of the human rights law, impact the healthcare standard? It is important to recall that Article 1 of the Universal Decalaration of Human Rights provides: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.
Health-related cases brought before the Court have most frequently been argued under Articles 2, 3, 8 and 14 of the Convention. Under Article 2 State agents are obliged to refrain from acts or omissions of a life-threatening nature, or which place the health of individuals at a grave risk. States also have positive obligations under Article 2 to protect the health of individuals in particular circumstances. An issue may thus arise under Article 2 where it is shown that the authorities of a Contracting State have put an individual’s life at risk through the denial of healthcare they have undertaken to make available to the population in general. Let me describe to you one of such cases. On 31 March 2005 the applicant gave premature birth by Caesarean section in a public hospital. Shortly afterwards the baby developed breathing difficulties. As there was no suitable neonatal unit in the particular hospital, the doctors decided to transfer the baby to another public hospital 110km away. That hospital refused to admit the child on the grounds that there was no space in the neonatal intensive care unit. Another centre explained that there were no incubators available and suggested that the parents take the child back to the public hospital. On their arrival there, the doctors again refused to admit the baby owing to lack of space in the neonatal unit. The child subsequently died in the ambulance car. The Court concluded that the hospital where the applicant gave birth could not have been unaware of the risk to the life of the applicant’s new-born baby boy in the event of a refusal to admit him to another hospital. In spite of that risk, before choosing to transfer him, the staff of the hospital had not taken the necessary measures to ensure that he would definitely be admitted for treatment in the other hospital. The failure to ensure coordination between hospitals and the fact that none of the doctors solicited took charge of the child could not be justified by a mere lack of space. The quantity and condition of the facilities in the region’s hospitals could not be considered as being satisfactory. This showed that the State had not sufficiently ensured the proper organisation and functioning of the public hospital service, or more generally its health protection system, and the lack of space could not be explained merely by an unforeseeable influx of patients. The child had died simply because he was offered no treatment at all. Such a situation constituted a denial of medical care of such gravity as to put a person’s life in danger. Furthermore, there had been no charges or proceedings against the staff who had failed to admit the applicant’s son for treatment, which also raised a problem under Article 2 of the Convention.
As regards Article 3, State agents must refrain from treatment which damages a person’s physical health or causes them mental or psychological harm. The State may also be required to take positive measures to protect the physical and mental health of individuals, such as prisoners, for whom it assumes special responsibility. One of the principles that emerges from the Court’s case-law regarding healthcare standard in places of deprivation of liberty is that the persons who have been deprived of liberty should receive the same medical attention as the population outside these places. In other words, if the State provides insulin free of charge to persons suffering from diabetes, the same should be provided to prisoners with such a diagnosis.
The right to respect for private life guaranteed by Article 8 of the Convention has assumed a particular prominence in the Court’s case-law on “the right to health”. The Court has interpreted the notion of private life as covering the right to the protection of one’s physical, moral and psychological integrity, as well as the right to choose, or to exercise one’s personal autonomy – for example, to refuse medical treatment or to request a particular form of medical treatment.
Article 8 also gives rise to both negative and positive obligations. The Court has found States to be under a positive obligation to secure the right to effective respect for physical and psychological integrity. In addition, these obligations may require the State to take measures to provide for an effective and accessible protection of the right to respect for private life, through both a regulatory framework of adjudicatory and enforcement machinery and the implementation, where appropriate, of specific measures.
In the case L.H. v. Latvia the Court established that, when the applicant was giving birth at a public hospital in 1997, the surgeon performed tubal litigation on the applicant without her consent. After failing to reach an out-of-court settlement, the applicant filed a civil action in damages against the hospital which was ultimately successful. While the proceedings were pending, the director of the hospital wrote to the Inspectorate of Quality Control for Medical Care and Fitness for Work (“MADEKKI”) requesting an evaluation of the medical treatment the applicant had received in the institution under his supervision. During the subsequent administrative inquiry, MADEKKI requested and received the applicant’s medical files from three different medical institutions and ultimately issued a report concluding that no laws had been violated during the applicant’s childbirth. The applicant subsequently challenged the lawfulness of the administrative inquiry undertaken by MADEKKI, but her claim was dismissed, the Senate of the Supreme Court having found that the domestic law authorised MADEKKI to examine the quality of medical care provided in medical institutions at their request.
The Court recalled the importance of the protection of medical data for a person’s enjoyment of the right to respect for private life and that the relevant regulation should be formulated with sufficient clarity to avoid arbitrariness. It firstly observed that the applicable legal norms described the competence of MADEKKI in a very general manner and that there did not seem to be a legal basis for a hospital to seek an independent expert advice from for the use in an ongoing civil litigation. Furthermore, the domestic law in no way limited the scope of private data that could be collected by MADEKKI during such inquiries, which resulted in it collecting medical data on the applicant relating to a seven-year period indiscriminately and without any prior assessment of whether such data could be potentially decisive, relevant or of importance for achieving whatever aim might have been pursued by the inquiry. Finally, the fact that the inquiry had commenced seven years after the applicant’s sterilisation raised doubts as to whether the data collection was “necessary for purposes of medical treatment [or] provision or administration of health care services” as required under domestic law. In view of the foregoing, the Court found that the applicable law had failed to indicate with sufficient clarity the scope of discretion conferred on competent authorities and the manner of its exercise.
Another set of cases concerns the quality of legal regulation in the area of organ removal. In another Latvian case the facts were as follows. In 2002 the applicant’s adult son died in a public hospital in Riga as a result of serious injuries sustained in a car accident. The applicant subsequently discovered that her son’s kidneys and spleen had been removed immediately after his death without her knowledge or consent. Her complaint to the Prosecutor General was dismissed on the grounds that the organs had been removed in accordance with the domestic law. The applicant had not been contacted because the hospital had had no contact details and, as the law then stood, medical practitioners were only obliged to actively search and inform close relatives of a possible organ removal if the deceased was a minor.
The applicant complained that she had not been informed about the possible removal of her son’s organs for transplantation purposes. The Government argued that when close relatives were not present at the hospital, the national law did not impose an obligation to make specific inquiries with a view to ascertaining whether there was any objection to the organ removal and that, in such cases, the consent to the removal could be presumed. However, the Court found that the way in which this “presumed consent system” operated in practice in cases such as the applicant’s was unclear: despite having certain rights as the closest relative she was not informed – let alone provided with any explanation – as to how and when those rights could be exercised. The Court accordingly found that the Latvian law as applied at the time of the death of the applicant’s son had not been formulated with a sufficient precision and did not afford an adequate legal protection against arbitrariness. On the basis of these findings, it concluded that Article 8 had been violated.
I believe that you will agree that behind these cases lies a much more important issue, one that the previously mentioned judgments did not succeed to address. Surely, especially in the area of healthcare the clarity of legal regulation is very important and provides for important guarantees. For example, in a line of cases against France an important question was asked about the fairness of the procedure for striking doctors out of the list of authorised medical practitioners due to their unprofessional behaviour. In the case Gubler v. France the issue was about the fairness of the disciplinary proceedings conducted by the National Council of Ordre des medecins. The Court found that members of the disciplinary section who ruled on the complaint of the applicant were not involved in the Council’s decision to bring action against the particular doctor. Already in 2002 the Court pronounced on the State obligations regarding the regulation of hospitals. In the case Calvelli and Ciglio v. Italy the Court stated that Article 2 of the Convention requires States to make regulations compelling hospitals to adopt appropriate measures for the protection of their patients’ lives and an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in public or the private sector, can be determined and those responsible made accountable.
At the same time, the Court has been very careful as concerns the disputes over the medical treatment provided or the access to a particular medical treatment or a drug. In Hristozov and others v. Bulgaria the Court could not rule that any obligation under Article 8 had been violated where the applicants were denied access to an unauthorized experimental anti-cancer drug.
To sum up this line of cases, it should be noted that human rights law clearly sets certain standards as to how the healthcare system should be regulated by the State. Availability of hospitals, discretion as concerns the medical data, proper rules of conduct for the medical staff as well as effective judicial proceedings in cases of conflict should be in place. But the guiding light or ultimate goal in selecting the correct approach is human dignity.
Another case against Latvia probably disclosed the idea of human dignity in its aspects that one does not think about or encounter too often. Following the death of the applicant’s husband in a car accident, tissue was removed from his body during an autopsy at a forensic centre and sent to a pharmaceutical company in Germany with a view to creating bio-implants, pursuant to a State-approved agreement. When the body was returned to the applicant after the completion of the autopsy its legs were tied together. The applicant only learned of the removal of the tissue two years later, in the course of a criminal investigation into the allegations of a wide-scale illegal removal of organs and tissues from cadavers. However, no prosecutions were ever brought as the statute of limitations had expired.
Building on the case Petrova v. Latvia, the Court in this case found that the domestic authorities’ failure to secure the legal and practical conditions to enable the applicant to express her wishes concerning the removal of her deceased husband’s tissue constituted an interference with her right to respect for private life. In examining the lawfulness of that interference, the Court noted that the domestic authorities had disagreed over the scope of the domestic legislation, with the forensic centre and the security police considering that there existed a system of a “presumed consent”, while the investigators thought that the Latvian legal system relied on the concept of an “informed consent”, with removal of body parts permissible only with the consent of the donor (during his or her lifetime) or of the relatives. By the time the security police accepted the prosecutors’ interpretation and decided that the applicant’s consent had been required, they were out of time to bring a criminal prosecution. This disagreement among the authorities inevitably indicated a lack of sufficient clarity. Indeed, although the Latvian law set out the legal framework for consenting to or refusing tissue removal, it did not clearly define the scope of the corresponding obligation or the discretion left to the medical or other authorities in this regard. The Court noted that the relevant European and international materials on this subject attached a particular importance to establishing the relatives’ views through reasonable enquiries.
Furthermore, the principle of legality required States to ensure the legal and practical conditions for the implementation of their laws. In the absence of any administrative or legal regulation on the matter, the applicant had been unable to foresee how to exercise her right to express her wishes concerning the removal of her husband’s tissue. Consequently, the interference with her right to respect for her private life was not in accordance with the law within the meaning of Article 8 § 2 of the Convention.
However, this case went beyond Article 8 and the question of a presumed or informed consent and the lack of a clear mechanism to establish either. The applicant had complained that the entire ordeal had been inhumane and thus contrary to Article 3. The applicant had had to face a long period of uncertainty, anguish and distress as to which organs or tissue had been removed, and the manner and purpose of their removal. The applicant had learned that a large number of people from whom tissue had been removed had been implicated. She had discovered the nature and amount of tissue that had been removed only during the proceedings before the European Court. The Court pointed out that in the specialised field of organ and tissue transplantation, it was common ground that the human body had to be treated with respect even after death. Indeed, international treaties including the Convention on Human Rights and Biomedicine and its Additional Protocol had been drafted to safeguard the rights of organ and tissue donors, living or deceased. Moreover, respect for human dignity formed part of the very essence of the European Convention. Consequently, in the Court’s view the suffering caused to the applicant had undoubtedly amounted to degrading treatment.
It is interesting to note that human dignity has not been an overwhelmingly often used concept in the Court’s case-law. I think it is fair to say that only during the last three years the Court has become more engaged with the value of human dignity. The Court has been examining various healthcare issues from the point of view of the right to life, human treatment and privacy. The perspective of human dignity offers a new reflection for the Court and the Elberte case really exemplifies that.
There are constitutions in Europe which provide for the right to human dignity expressis verbis, notably the German Constitution. There are those that, similarly to the European Convention on Human Rights, do not. There are different constitutional practices which disclose that one may see a so-called external dimension of human dignity which could be sufficiently dealt with through the protection of honour and reputation within the broader scope of the right to privacy. But there is a more internalized dimension of human dignity which is the area that is more often encountered by the doctors and the medical staff. For example, the Latvian Constitutional Court, when dealing with cases on the right to health (which is a separate provision in the Bill of Rights) has so far seen them from a purely economic point of view, i.e., by inquiring what is the minimum healthcare standard that the State budget can afford. In one of the most prominent judgments concerning a rare illness which required a particularly expensive drug, the purchase of which was not compensated by the State, the Court did not find a violation of the right to health under the Constitution. I believe that the human dignity approach would have added a different reflection.
I have noticed a tendency among the human rights lawyers to inquire more and more into the value of human dignity. In 2015 the European Court in the case Bouyid v Belgium articulated a number of connections.
“89. The word “dignity” appears in many international and regional texts and instruments … Although the Convention does not mention that concept – which nevertheless appears in the Preamble to Protocol No. 13 to the Convention, concerning the abolition of the death penalty in all circumstances – the Court has emphasised that respect for human dignity forms part of the very essence of the Convention (see Svinarenko and Slyadnev [(Grand Chamber), nos. 32541/08 and 43441/08, 17 July 2014], § 118), alongside human freedom (see C.R. v. the United Kingdom, 22 November 1995, § 42, Series A no. 335‑C; and S.W. v. the United Kingdom, 22 November 1995, § 44, Series A no. 335‑B; see also, among other authorities, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002‑III).”
The slap in the face by the policeman was a violation of human dignity. There are important human rights obligations that may directly impact on the healthcare standard. There is also a very important rejuvenated debate in Europe about the scope and place of human dignity in various situations.
 Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, Vienna, 25 June 1993.
 The European Committee of Social Rights, Conclusions XVII-2 (2005, Volume 1).
 The European Committee of Social Rights, decision on the merits (2004), The International Federation of Human Rights Leagues (FIDH) v. France (Complaint No. 14/2003), paragraph 31.
 The European Committee of Social Rights, Conclusions XV-2, Denmark, 31 December 2001.
 Asiye Genç v. Turkey, no. 24109/07, 27 January 2015.
 L.H. v. Latvia, no. 52019/07, 29 April 2014.
 Petrova v. Latvia, no. 4605/05, 24 June 2014.
 Gubler v. France, no. 69742/01, 27 July 2006.
 Calvelli and Ciglio v. Italy (Grand Chamber), no. 32967/96, 17 January 2002.
 Hristozov and others v. Bulgaria, nos. 47039/11 and 358/12, 13 November 2012.
 Elberte v. Latvia, no. 61243/08, 13 January 2015.
 Case no. 2012-14-03, judgment of 9 April 2003, available in English: http://www.satv.tiesa.gov.lv/wp-content/uploads/2012/06/2012-14-03_Spriedums_ENG.pdf.
 Bouyid v. Belgium (Grand Chamber), no. 23380/09, 28 September 2005.