Which are the most relevant international and regional human rights standards related to palliative care?

Overview

A wide variety of human rights standards at the international, regional, and national levels applies to palliative care. These standards can be used for many purposes:

To document violations of palliative care rights
To advocate for the cessation of these violations
To sue governments for violations of national human rights laws
To complain to regional and international human rights bodies about breaches of human rights agreements.

In the tables on the following pages, examples of human rights violations related to palliative care are provided. Relevant human rights standards are then cited, along with examples of legal precedents and provisions from patient right charters and declarations, interpreting each standard.

How to read the tables

As you read through each table, ask yourself the following questions about the violations, standards, and precedents and interpretations that are cited:

EXAMPLES OF HUMAN RIGHTS VIOLATIONS Do any of these violations occur in your country? Are there other violations of this human right that exist in your country?
HUMAN RIGHTS STANDARDS Are these violations prohibited by the "human rights standards"? Can the standards be interpreted to apply to this violation?	PRECEDENTS AND INTERPRETATIONS Do any of the "examples of precedents and interpretations" apply to this issue? Can they be interpreted to apply to this issue?

Remember that human rights law is an evolving field, and that many human rights violations are not directly addressed by existing legal standards and precedents. Through ongoing documentation and advocacy, advocates can build a stronger body of jurisprudence on palliative care and human rights.

Abbreviations

In the tables, the seven treaties and their corresponding enforcement mechanisms are referred to with the following abbreviations:

Treaty	Enforcement Mechanism
International Covenant on Civil and Political Rights (ICCPR)	Human Rights Committee (HRC)
International Covenant on Economic, Social, and Cultural Rights (ICESCR)	Committee on Economic, Social and Cultural Rights (CESCR)
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)	Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee)
Convention on the Rights of the Child (CRC)	Committee on the Rights of the Child (CRC Committee)
African Charter on Human and People’s Rights (ACHPR) & Protocols	African Commission on Human and People’s Rights (ACHPR Commission)
[European] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)	European Court of Human Rights (ECtHR)
European Social Charter (ESC)	European Committee of Social Rights (ECSR)

Table 1: Palliative care and freedom from cruel, inhuman, and degrading treatment

Examples of Human Rights Violations

National laws restricting opioid availability and access cause cancer and AIDS patients to suffer unnecessary pain.
Fearing prosecution by the state, a doctor refuses to prescribe morphine to relieve a patient’s pain.
A country’s laws prohibit the prescription of morphine to former drug users. A former drug user is in the advanced stages of AIDS and suffers a great deal.

Human Rights Standards

Precedents and Interpretations

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.

ACHPR 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

African Women’s Protocol 4(1) All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited.

ECHR 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

See also:

Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, art. 4(1) "All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited."
European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

ECtHR: finding continued detention of a cancer sufferer where it caused “particularly acute hardship” to constitute cruel, inhuman or degrading treatment [Mouisel v. France, 38 EHRR 34, para. 34 (2004)].

See also:

A right to avoid unnecessary pain and suffering is an important part of most patients' rights charters. For instance, the European Charter of Patients' Rights sets out: "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 care treatment and simplifying patients’ access to them." [art. 11].
The Declaration on the Promotion of Patients’ Rights in Europe, promulgated by a WHO European Consultation, similarly asserts: "Patients have the right to relief of their suffering according to the current state of knowledge...Patients have the right to humane terminal care and to die in dignity." [art. 5.10, 5.11].

Table 2: Palliative care and the right to life

Examples of Human Rights Violations
Unable to obtain pain medication, an AIDS patient is unable to adhere to required treatment and continue taking antiretrovirals. As a result, the patient does not have much time to live.
Human Rights Standards	Precedents and Interpretations
ICCPR 6(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. ACHPR 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. ECHR 2(1) 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.	HRC: explaining that the right to life “should not be interpreted narrowly” or “in a restrictive manner,” and its protection “requires that States adopt positive measures . . . to increase life expectancy.” [HRC GC 6, paras 1, 5].

Table 3: Palliative care and the right to the highest attainable standard of health

Examples of Human Rights Violations
A country does not provide for training in palliative care to its medical personnel. As a result, end of life patients do not receive adequate pain relief and physical, psychosocial, and spiritual, care. A state provides funding only for hospitals and not for hospices and home-based care facilities. As a result, patients must either forgo treatment or remain far from their homes and families.
Human Rights Standards	Precedents and Interpretations
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. 12(2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for…. (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. CRC 24(1) States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. ACHPR 16(1) Every individual shall have the right to enjoy the best attainable state of physical and mental health. 16(2) States Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick. ESC 11 – The right to protection of health With a view to ensuring the effective exercise of the right to protection of health, the Contracting Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designed… (2) to provide advisory and educational facilities for the promotion of health… *See also:* CRC 24, African Charter on the Rights and Welfare of the Child 14 (child’s right to the highest attainable standard of health).	CESCR: affirming the importance of “attention and care for chronically and terminally ill persons, sparing them avoidable pain and enabling them to die with dignity.” [CESCR GC 14, para. 25]. CESCR: indicating that access to “essential drugs, as defined by the WHO Action Programme on Essential Drugs” is part of the minimum core content of the right to health. Fourteen palliative care medications are currently on the WHO Essential Drug List. [CESCR GC 14, para. 12]. CESCR: "States are under the obligation to respect the right to health by...refraining from denying or limiting equal access for all persons...to preventive, curative and palliative health services." [CESCR GC 14, para. 34]. *See also:* Under the Declaration on the Promotion of Patients' Rights in Europe, promulgated by a WHO European Consultation, "Patients have the right to enjoy support from family, relatives and friends during the course of care and treatment and to receive spiritual support and guidance at all times." [art. 5.9].

Table 4: Palliative care and the right to information

Examples of Human Rights Violations
People are denied information about hospice and palliative care services. People are denied information about pain management. People are denied information about their diagnosis and prognosis.
Human Rights Standards	Precedents and Interpretations
ICCPR 19(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. ACHPR 9 (1) Every individual shall have the right to receive information. ECHR 10 (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) Every individual shall have the right to express and disseminate his opinions within the law. *See also:* European Convention on Human Rights and Biomedicine, art 10(2): "Everyone has the right to know any information collected about his or her health."	CESCR: health care accessibility “includes the right to seek, receive and impart information and ideas concerning health issues.” [CESCR GC 14, para 12]. *See also:* Under the European Charter of Patients' Rights, "Every individual has the right of access to all kinds of information regarding their state of health and health services and how to use them, and all that scientific research and technological innovation makes available." [art. 3]. The Declaration on the Promotion of Patients' Rights in Europe emphasizes, "Patients have the right to be fully informed about their health status, including the medical facts about their conditions; about the proposed medical procedures, together with potential risks and benefits of each procedure; about alternatives to the proposed procedures, including the effect of non-treatment; and about the diagnosis, prognosis, and progress of treatment." Moreover, "[p]atients have the right to choose who, if any one, should be informed on their behalf." [art. 2.2, 2.6].

Table 5: Palliative care and the right to non-discrimination and equality

Examples of Human Rights Violations
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	Precedents and Interpretations
ICCPR 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 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. ACHPR 2 Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. *See also:* International Convention on the Elimination of All Forms of Racial Discrimination, art. 5(e)(iv) Convention relating to the Status of Refugees European Convention on Human Rights and Biomedicine, art 3 (equitable access to health care) European Convention on Citizenship and the Convention Relating to the Status of Stateless Persons	CESCR: “[T]he 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.” [CESCR GC 6, paras 12,13]. CESCR: emphasizing the need “to eliminate any discriminatory legislation and the need to ensure the relevant budget support” for the elderly. [CESCR GC 6, para. 18]. CESCR: 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.” [CESCR GC 6, para. 34]. 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]. CERD: calling upon states to protect the adequate standard of health of non-citizens and refugees by ensuring their equal access to palliative health services. [CERD/C/NOR/CO/18 (CERD, 2006), para. 21; CERD/C/BWA/CO/16 (CERD, 2006), para. 19].

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