Health Law

How can Ethics, Law and Human Rights about Health Help Me?

The professional conduct of doctors and other health professionals (such as nurses, physiotherapists, counsellors) are regulated by codes of ethics such as the updated version of the Hippocratic Oath called the Geneva Declaration and the Australian Medical Association Code of Ethics. Central to such codes are doctors' obligations to preserve a patient's secrets, not deliberately harm or abuse patients, treat patients equally and to only treat a patient within their level of competence and expertise. Their conduct concerning proposed research, considered by various Ethics Committees, must also reflect a variety of principles. Research principles flow from the Declaration of Helsinki, prohibiting, for example, conflicts of interest a doctor may have (such as undisclosed financial gain from the research) and requiring free and fully informed consent, including an understanding of any risks involved with the experiment. Also relevant are ethical statements produced by the National Health and Medical Research Council (NHMRC) (for example, on the conduct of human research and use of new reproductive technologies). Local institutional guidelines and policies include contractual terms of employment of hospital staff. Also relevant are judicial decisions ("case law"), laws of both the Federal Parliament and the ACT Legislative Assembly (legislation) and to some extent international human rights.

The first Bill of Rights in any Australian jurisdiction was the Human Rights Act 2004 (ACT). This Act acknowledges the civil and political standards extracted from the International Covenant on Civil and Political Rights. The Act, in this context, ensures that any interpretation of ACT legislation must, "as far as possible" (s 30), comply with international human rights norms in health-related areas such as the right to life (s 9), freedom from cruel, unusual or degrading treatment of punishment (s 10(1)), free consent to scientific experimentation and medical treatment (s 10(2)) and right to privacy (s 12). Furthermore, the ACT Supreme Court has the power to issue a declaration of incompatibility to the Attorney General when a law cannot be interpreted consistently with human rights obligations (s 32).

Human Rights Amendment Act 2008 (commenced 1 January 2009)

The Human Rights Amendment Act 2008 (ACT), which commenced on 1 January 2009,inserted a new s 28(2) into the Principal Act which provides:

In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(a) the nature of the right affected;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

New s 28(2) is modelled on s 7 of the Victorian Charter of Human Rights and Responsibilities Act 2006 and s 36 of the Bill of Rights in the Constitution of the Republic of South Africa 1996. Its intention is to provide guidance in the application of the general limitation clause in s 28(1) and to reduce its uncertainty. The list of relevant factors in s 28(2) reflect what is known as the "proportionality test". The concept of proportionality as the means of determining how and when human rights may be limited is a well-accepted principle in international law and comparable human rights jurisdictions - see, for example, General Comment No 22 by the United Nations Human Rights Committee; in the context of the European Court of Human Rights, see Handyside v United Kingdom (1979); under the United Kingdom Human Rights Act 1998, see London Regional Transport v Mayor of London (2001), Brown v Stott (2001), R v A (No 2); in Canada, see R v Oakes (1986); and in New Zealand, see Noort v MOT (1992).

The Human Rights Amendment Act 2008 (ACT), with effect from 1 January 2009, also inserted new s 30 which provides: "So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights."

The new s 30 clarifies the interaction between the interpretive rule and the purposive rule such that, as far as it is possible, a human rights consistent interpretation is to be taken to all provisions in Territory laws. This means that unless the law is intended to operate in a way that is inconsistent with the right in question, the interpretation that is most consistent with human rights must prevail. This is consistent with the Victorian approach contained in s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). It also draws on jurisprudence from the United Kingdom such as the case of Ghaidan v Godin-Mendoza (2004), which was recently cited by the ACT Supreme Court in Kingsley's Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited (2006).

New s 40B of the ACT Human Rights Act, with effect from 1 January 2009, provides that:

(1) It is unlawful for a public authority:

(a) to act in a way that is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a relevant human right.

Public authorities are defined as:

(a) the operation of detention places and correctional centres;

(b) the provision of any of the following services:

(i) gas, electricity and water supply;

(ii) emergency services;

(iii) public health services;

(iv) public education;

(v) public transport;

(vi) public housing.