Human Rights And Medical Ethics

Question 1

Distinctive characteristics of human rights

Answer 1

Universality – everyone has them
Everyone has them equally
They are the rights of individuals

Question 2

Objective rights

Answer 2

It is right that P
P stands for a proposition describing an actual/possible fact
for example it is right that promises are kept

concept = a global moral evaluation of a state of affairs

Question 3

Subjective right

Answer 3

expresses a relationship between a person and something else

X has a right to a thing

Concept = moral relationship between person (usually) and thing/action/state

Question 4

Positive rights/obligations

Answer 4

Certain rights impose positive obligations on others (the state) to take positive states to protect the right.

e.g. by providing legal/institutional structures/resources

Question 5

negative rights/obligations

Answer 5

negative obligation imposed to refrain from interpreting with the right in question

e.g. the right to privacy

Question 6

origins of human rights - Macintyre in ‘after virtue’

Answer 6

“there is no expression in any ancient or medieval language correctly translated by our expression ‘a right’ until near the close of the middle ages: the concept lacks any means of expression in Hebrew, Greek, Latin or Arabic, classical or medieval, before about 1400, let alone in Old English, or in Japan even as late as the mid-nineteenth century.”

Question 7

origins of human rights - the Greeks

Answer 7

• Aristotle believed constitutions could assign rights to citizens
• Citizens’ rights included rights to property and participation in public affairs
• When rights were violated, laws determined compensation/punishment
• No notion of “Human Rights”, he believed rights were derived from constitution and some men were slaves by nature

Question 8

origins of human rights - Magna Carta 1215

Answer 8

Principle that the king was subject to the law

Art 39: no free man shall be arrested, imprisoned, exiled or in any way ruined, except by lawful judgement of his peers or by the law of the land

Not a charter of human rights

It’s purpose was to provide remedies for specific grievances

Question 9

origins of human rights - St Thomas Aquinas

Answer 9

Summa Theologica (1265-74) “…this is the first precept of the law, that good is to be done and promoted and evil is to be avoided. All other precepts of the natural law are based on this”

Human law to be judged by conformity with natural law

Question 10

Origins of human rights - Hugo Grotius (1583-1645)

Answer 10

Will of God law, known through man’s sociability, which was the basis of all other laws of nature

Law of nature concerned with maintenance of rights. Justice a matter of respecting and exercising individual rights

Separated rights from theology – theory did not require belief in god

De Jure Belli Ac Pacis
• Book 1: Conception of war and natural justice. Argues there are some circumstances where war is justifiable
• Book 2: Identifies “just cause” for war, self-defence, reparation of injury, and punishment; examines circumstances under which these attach and when they do not
• Book 3: Question of what rules govern the conduct of war once it has begun. Argued that all parties to war are bound by such rules, whether their cause is just or not.

Question 11

origins of human rights - Thomas Hobbes (1588-1679)

Answer 11

“The Right of Nature… is the liberty each man hath, to use his own power… for the preservation of his own life… of doing any thing, which in his own Judgement and Reason, hee shall conceive to be the aptest means thereunto”

Question 12

origins of human rights - John Locke (1632-1679)

Answer 12

Each individual had responsibility to God to observe laws of nature

God willed preservation of mankind and imposed on everyone obligations not to harm lives, health, liberty, and possessions of others

Question 13

origins of human rights - American declaration of independence (1776)

Answer 13

“…that all men are created equal, that they are endowed by their creator with certain inalienable right, that among these are life, liberty and the pursuit of happiness… whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it”

Question 14

Origins of human rights - Kant (1724-1804)

Answer 14

1985 – Groundwork for the Metaphysics of Morals
• Supreme principle of natural law = categorical imperative
• “so act that the maxim of your will can at the same time be a universal law”
• “treat all humans as ends in themselves, rather than as mere means”

Question 15

Origins of human rights - French declaration of rights 1789

Answer 15

Article 1: Men are born and remain free and equal in rights. Social distinctions may be based only on considerations of the common good.

Article 2 : The aim of every political association is the preservation of the natural and imprescriptible rights of man. These rights are Liberty, Property, Safety and Resistance to Oppression.

Article 3 : The source of all sovereignty lies essentially in the Nation. No corporate body, no individual may exercise any authority that does not expressly emanate from it.

Question 16

Origins of human rights - Thomas Paine

Answer 16

The Rights of man

Rights men had by virtue of their status as human beings, they owe nothing to society or the state

State had value and claims on the obligations of citizens only as an instrument for the protection of natural rights of citizens

Question 17

Origins of human rights - Jeremy Bentham (1748-1832)

Answer 17

“there are no such things as natural rights – no such thing as rights anterior to the establishment of government – no such thing as natural right opposed to, in contradiction to, legal;…”

“Natural rights is simple nonsense, natural and imprescriptible rights, rhetorical nonsense, - nonsense on stilts”

Question 18

Nuremberg Trials

Answer 18

Medical trial

“These experiments revealed nothing which civilized medicine can use… Certain advances in destructive methodology we cannot deny, and… this may well have been the principal objective.”

23 defendants, 15 guilty, 7 hanged. 7 acquitted – several physician defendants continued to practice medicine after the war and some worked for the German pharmaceutical industry.

Question 19

Aftermath of WWII

Answer 19

Development of both bioethics and human rights

Development of ethical codes, conventions etc. governing clinical and research practice

Development of international human rights declarations, conventions and treaties aimed at preventing human rights abuses

Question 20

Nuremberg code 1948

Answer 20

“1. The voluntary consent of the human subject is absolutely vital. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion…”

Question 21

Declaration of Helsinki 1964

Answer 21

11. It is the duty of physicians who participate in medical research to protect the life, health, dignity, integrity, right to self-determination, privacy, and confidentiality of personal information of research subjects…..
12. Medical research involving human subjects may only be conducted if the importance of the objective outweighs the inherent risks and burdens to the research subjects.
13. Participation by competent individuals as subjects in medical research must be voluntary. Although it may be appropriate to consult family members or community leaders, no competent individual may be enrolled in a research study unless he or she freely agrees.

Question 22

Convention on Human Rights and Biomedicine (1997)

Answer 22

Article 1 – Purpose and Object
- Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, resect for their integrity and other rights… with regards to the application of biology and medicine

Article 2 – Primacy of the human being
- The interests and welfare of the human being shall prevail over the sole interest of society or science

Article 5 – General rule
- An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it… The person concerned may freely withdraw consent at any time

Question 23

Universal declaration on Bioethics and Human Rights (2005)

Answer 23

Article 3 – Human dignity and human rights
 1. Human dignity, human rights and fundamental freedoms are to be fully respected.
 2. The interests and welfare of the individual should have priority over the sole interest of science or society.

Article 4 – Benefit and harm
- In applying and advancing scientific knowledge, medical practice and associated technologies, direct and indirect benefits to patients, research participants and other affected individuals should be maximized and any possible harm to such individuals should be minimized.

Article 5 – Autonomy and individual responsibility
- The autonomy of persons to make decisions, while taking responsibility for those decisions and respecting the autonomy of others, is to be respected. For persons who are not capable of exercising autonomy, special measures are to be taken to protect their rights and interests

Question 24

UN declaration of Human Rights 1948

Answer 24

European Convention for the Protection of Fundamental Rights and Freedoms

Ratified by UK 1951

Came into fore 3/9/1953

1966 UK accepted individual petitions to ECtHR

Incorporated into UK Law by HRA 1998 – in force as of 2/10/2000

The rights guaranteed by the ECtHR are modelled upon the UN Declaration of HR, but content of rights and qualifications are more specific in that they reflect the intention of member states that rights be legally enforceable

ECHR Purpose

Maintenance and further realisation of HRs and fundamental freedoms

Promotion of ideals and values of a democratic society – balance between individual and group interests

Upholding the rule of law

ECHR intended to guarantee rights that are not merely “theoretical and illusory” but those that are “practical” and “effective” in reality

Absolute rights

No derogations permitted, and no circumstances whereby circumstances of rights can be justified in public interest – e.g. prohibition of torture under Art. 3

Limited/ Qualified rights

Limited rights
• E.g. Art 5 Right to liberty and security of the person
• Limitations either set out in article or implied by ECtHR

Qualified Rights
• E.g. Art 8 Right to respect for private life
• Includes general qualification provision in second paragraph of article
• Once infringement of limited/qualified right is show, it is for state/ relevant body to show that any violation is justified

Prescribed by law

Intended to achieve a legitimate objective

Necessary in a democratic society

Question 25

Article 2: Right to life

Answer 25

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

When does life begin?
Vo v France [2004] ECtHR
• “The court has yet to determine the issue of the ‘beginning’ of ‘everyone’s right to life’ within the meaning of this provision and whether the unborn child has such a right.”

Evans v UK [2007]
• UK law does not recognise fetal rights
• ECtHR: issue of when life begins falls within the ‘margin of appreciation’ which states enjoy.

Legal cases results

Right to life does not give a patient the right to demand a certain medical treatment which they would not otherwise receive – needs balanced vs society – cost etc.

Art 2 does not confer a right to die

Where there is an immediate risk of a detained mentally disordered patient committing suicide, the medical authorities have a duty under Art 2. To do all that can be reasonably expected to safeguard life

Question 26

Article 3: Prohibition of Torture

Answer 26

No one shall be subjected to torture or to inhuman or degrading treatment or punishment

Court cases results

A measure which is a therapeutic necessity cannot be regarded as inhuman or degrading

Suffering which occurs on account of illness may be severe enough to risk being covered by Art. 3, and may risk being exacerbated by medical treatment for which authorities can be held responsible
• This does not mean that there is a lawful opportunity for assisted suicide to avoid torture

Question 27

Article 5: Right to Liberty and Security

Answer 27

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save…

The lawful detention of a peon after conviction by a competent court

The lawful detention of persons for the preventions of the spreading of infectious diseases, or persons of unsound mind, alcoholics or drug addicts or vagrants…
• To justify unsound mind, it must be established that:
• There is objective medical evidence of unsound mind
• The unsoundness of mind is of a degree or kind warranting compulsory detention, and
• The unsoundness of mind persists throughout the patient’s detention

Question 28

Article 8: Right to respect for private and family life

Answer 28

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

There shall be no interference by a public authority.. except… 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

Legal cases
• Poland 2007
• Failure to permit applicant to have a therapeutic abortion to protect her sight from deteriorating violated her right to a private life
• Evans vs UK 2007
• UK did not breach Art 8 in requiring consent of both gamete donors for continued storage and use of an embryo.

Woman’s right to respect for decision to become a parent balanced vs right of male partner to choose not to become a parent
• Nicklinson vs MoJ 2014 currently UK Supreme Court
• Blanket ban on assisted suicide may breach Art 8

Question 29

Hard Law

Answer 29

Legal instruments with legally binding force

E.g. HRA 1998, ECHR

Question 30

Soft Law

Answer 30

Quasi legal instruments – no legally binding force

E.g. UN Declaration of Human Rights

Aspirational goals

May harden into hard law

Crucial role played in the development of universal norms in bioethics

Question 31

Statute of the International Court of Justice, Article 38

Answer 31

Definitions of international law

International conventions, whether general or particular, establishing rules expressly recognised by the contesting states

International custom, as evidence of a general practice accepted as law

The general principles of law recognised by civilised nations

Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law

Question 32

Human Dignity as a fundamental value

Answer 32

Both bioethics and human rights see dignity as a key principle

Concept of dignity is vague and contested

Charles foster – “dignity is a slippery notion… some aspects of dignity are like the proverbial elephant: we know them when we see them, but they are difficult to describe

Dignity as a term frequently used in human rights documents: but is not defined

Dignity =/= human rights
• Scope is potentially wider than respect for persons or human rights dependent on interpretation e.g. treat an embryo or corpse with dignity – neither has human rights or is a person

Question 33

What is human dignity?

Answer 33

Often seen as a synonym for self-respect

Not necessarily connected with bodily integrity – may be physically violated and still have dignity

Question 34

Religious accounts of dignity

Answer 34

Dignity comes from God

All human beings equal in dignity – even the unborn

Non-humans do not have this form of dignity

Question 35

UNESCO on the link between Human genome and human rights

Answer 35

The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity…. Imperative not to reduce individuals to their genetic characteristics

Question 36

Utilitarian account of dignity

Answer 36

Basis of dignity is in our ability to suffer

Respect for dignity

Obligation to prevent and not bring about unnecessary suffering

Non-sentient beings do not possess all the rights that sentient beings do

Question 37

Kant: dignity of reason

Answer 37

Man… is not be values as a means to the ends of other people, or even to his own ends, but to be prized as an end in himself… he possesses a dignity… whereby he exacts the respect of all other rational beings in the world

Question 38

Some say dignity is an incoherent and unhelpful concept

Answer 38

Macklin – Dignity is a useless concept. It means no more than respect for persons or their autonomy.

Dignity does not = autonomy?

Female patient in PVS. Is it acceptable for medical students to practice vaginal or rectal exams on her?
• Why?

Question 39

Bioethics and human rights

Answer 39

HR has much to offer medical/bioethics

HR focus on wider issues may be seen as reorienting bioethics to address broader problems

Knowles 2001

“The globalization of bioethics demands that we respond with coherent coordinated international policy and action. This action should be guided by a global bioethic. The human rights framework has much to offer as a guide to developing that ethic… The strength of the human rights framework lies in the moral force of its language, its practical and aspirational vision, the connection with international law, and its inclusion of communities and responsibilities.”

Question 40

Could human rights replace bioethics?

Answer 40

Many traditional norms of medical ethics have been carried over into human rights hard and soft law. Overlap occurs between bioethics and HR norms

As medicine becomes globalised there becomes a need for universal norms
• What does this mean?
• Change in orientation and practice of doctors?
• Incorporation of medical ethics into HR ideology? Convergence of bioethics and human rights?

Question 41

Do bioethics and HR need each other?

Answer 41

Language of HR is useful – a debate in HR terms allows a “well tested and long-established common language, rhetoric and international practice to be applied to achieve consensus” on the problem and possible solutions

HR may act as a bridgehead between principle and practicality of the reasoning within bioethics

HR discourse may be useful in allowing bioethics not to be seen as compromised due to neoliberal governance interests

Potential for HR theory and practice to create foundational theory to ground more applied and analytical work in bioethics

Question 42

Problems with bioethics and human rights

Answer 42

Ambiguity in terminology used between human rights and international human rights – the latter recognised by international law

Subsumption required both a reframing of medical ethics norms in the language of international human rights and practical activities on the part of sovereign states and judicial bodies

Problems re enforcement
• Soft law lacks formal enforcement
• Not easy to use international law to protect individuals from other individuals

Expansion of rights claims tends to undermine rights discourse
• If everything is a issue of rights then it detracts from the special detraction that genuine moral rights deserve
• Over extension of rights claims may lead to crisis of confidence in that the confidence of these rights is detracted from due to dilution

Question 43

Rights vs obligations - O’Neill

Answer 43

Too often speak about rights e.g. right to life, as if rights are best thought of separate from actions, as entitlements to goods of a sort

This disguises that these rights can only be respected and secured if some agents are obliged to act in certain ways to others

Rights and duties are inextricably linked