Law, Health and Rights

DRAFT PROGRAMME

LAW, HEALTH AND RIGHTS

the 2008 Annual Seminar of the

Society of Legal Scholars

with the support and sponsorship of

Birkbeck College

University of London

23rd -24th April 2008

April 2008

Dear Participants

I have great pleasure in welcoming you to the 2008 Annual Seminar of the Society of Legal Scholars (SLS).

The Seminar is an important event for the SLS, which funds one such seminar each year after choosing from competitive bids by SLS members. It is a great honour to host the 2008 Seminar at Birkbeck, the first time it has been held here.

The Annual Seminar has a number of functions, principal among which is to provide the opportunity for scholars and practitioners to engage in an in-depth discussion of a topic from a number of different but complementary perspectives.

The topic for this year’s Seminar was prompted in part by my own research and political interest in the impact of law on people living with HIV and AIDS, but more generally by a belief that the right to health lies at the core of the enjoyment of almost every other right – whether social, economic, civil and political. Unless people are able to live their life to the fullest extent possible the practical value of other rights is diminished, and in some cases extinguished.

We are extraordinarily fortunate to have secured the participation of some of the most distinguished thinkers in the field of law, health and rights for this Seminar. I would like to take this opportunity to thank all of them for agreeing to contribute. I should also like to thank the SLS for agreeing to fund the Seminar, and especially the help of its Treasurer, Professor David Miers of Cardiff University.

Finally, I would like to thank Leigh Day & Co, Solicitors for their significant contribution and support. One of the aims of the Seminar is to bring together scholarship and practice, and the commitment of Leigh Day & Co to helping achieve that aim not only demonstrates its commitment to the use of law to secure the right to health, but its commitment to creating and sustaining links with the academic community.

I trust that you will find the Seminar informative, challenging and enjoyable.

Matthew

Dr Matthew Weait

Senior Lecturer in Law and Legal Studies

Faculty of Lifelong Learning

Birkbeck College

PROGRAMME

23rd April
Time / Session / Speaker / Draft Title(s)
09.00-09.45 / Registration
09.45 / Welcome and Introduction / Dr Matthew Weait
10.00-11.30 / Panel 1
Chair
Matthew Weait / Professor Paul Hunt
Essex
Dr Brigit Toebes
Aberdeen / The contribution of the right to the highest attainable standard of health
Health sector corruption and the ‘right to the highest attainable standard of health’
11.30-11.45 / Refreshments
11.45-13.00 / Lecture
Chair
Matthew Weait / Justice Edwin Cameron
Supreme Court of South Africa / Judges, law-makers and AIDS policy in a mass epidemic: some thoughts from South Africa
13.00-14.00 / Buffet Lunch
14.00-15.15 / Panel 2
Chair:
Dr Nicolette Priaulx / Professor Emily Jackson
LSE
Dr Shaun Pattinson
Durham / Regulatory Failure and Strategic Ignorance: the sad story of Seroxat and the missing trial data
Consent: Informational Symmetry and Asymmetry
15.30-15.45 / Refreshments
15.45-17.30 / Panel 3
Chair
Professor Emily Jackson / Dr Bonita Meyersfeld
The Odysseus Trust
Dr Phillip Cole
Middlesex
Dr Sylvie Da Lomba
Strathclyde / Domestic Violence: An International Health Crisis
Migration and the Human Right to Health Care
Citizenship rights v. the rights of persons: Irregular migrants’ access to health care in France, England and Quebec
18.00-19.00 / Reception sponsored by Leigh Day and Co. Solicitors
20.15 / SLS and Leigh Day & Co Conference Dinner
Thursday 24th April
Time / Session / Speakers / Title(s)
09.00-10.30 / Panel 4
Chair
Professor Anthony Kessel / Clifford Middleton
NICE
Nigel Giffin QC
11 KBW
Ian Wise
Doughty Street Chambers / The Relevance of Values to NICE Decisions
State Resources and Treatment Decisions
From Cambridge to Swindon: the emergence of procedural scrutiny of healthcare decisions
10.30-10.45 / Refreshments
10.45-12.00 / Panel 5
Chair
Professor John Porter / Professor Scott Burris
Temple University
Revd Canon Ted Karpf
World Health Organization / Implementation and the Side Effects of Human Rights Campaigning
Decent Care Values in Community: A Developmental Synthesis
12.00-13.30 / Panel 6
Chair
Matthew Weait / Professor Peter Bartlett
Nottingham
Daniel Monk
Birkbeck
Professor Kaye Wellings
London School of Hygiene and Tropical Medicine / The Great Lie: Human Rights for Users of Mental Health Services
Health Rights and Childhood
Sexual health, the law and human rights
13.30-14.30 / Buffet Lunch
14.30-16.00 / Leigh Day & Co
Roundtable Discussion
Chair
Sir Stephen Sedley / Confirmed Contributors
Sean Humber
Leigh Day & Co
Richard Stein
Leigh Day & Co
Daniel Monk
Birkbeck College
Dr Sylvie Da Lomba
University of Strathclyde / Law, Health and Rights: Where Now?
16.00 / Refreshments and Close of Seminar

Abstracts (in order of speaking)

PANEL 1

Professor Paul Hunt

University of Essex

The contribution of the right to the highest attainable standard of health

Professor Hunt will very briefly introduce his work as UN Special Rapporteur on the right to the highest attainable standard of health; outline the deepening understanding of what this fundamental, and legally binding, human right means; sketch the current state of the health and human rights movement; outline new developments, such as work on indicators, benchmarks and impact assessments, which facilitate the integration of the right to health into national and international policy making processes; signal the key right-to-health features of a health system; emphasise that health workers have an absolutely indispensable role to play in the implementation of the right to health, and that the right to health can also help health professionals to deliver their professional objectives.

Dr Brigit Toebes

University of Aberdeen

Health sector corruption and the ‘right to the highest attainable standard of health’

The health sector is highly prone to corruption. In some countries, the health sector is considered to be the most corrupt sector. Health sector corruption deprives people of access to health care and leads to poor health outcomes. For example, corruption has been negatively associated with child and infant mortality, the likelihood of an attended birth, immunisation coverage and low-birthweight. As such, corruption potentially violates the ‘right to the highest attainable standard of health’, as set forth in a number of international human rights treaties. This paper will first make a connection between existing findings on health sector corruption and the framework of the right to health, as laid out in particular by the UN General Comment on the Right to Health. On the basis of these findings an identification is made of State obligations in relation to corruption in the health sector. Such obligations are also identified for non-state actors, including private hospitals, insurance companies and the pharmaceutical industry, as well as international organisations and health workers. Finally, an attempt is made to identify so-called violations of the right to health in relation to corruption. Having made a connection between corruption and the right to health, an attempt is made to analyse how human rights principles and norms can be used as tools to combat corruption. The question is also addressed, whether and how the adoption of a human rights approach would increase the transparency and accountability in the health sector.

LECTURE

Justice Edwin Cameron

Supreme Court of Appeal of South Africa

Judges, law-makers and AIDS policy in a mass epidemic: some thoughts from South Africa

In his lecture, Edwin Cameron critically analyses the low as well as the high points of South Africa’s response to its AIDS epidemic, the largest in the world: the occasional recalcitrance, intransigence and folly of government officials, but also the acclaimed judicial decisions that prohibited discrimination and forced the SA government to start providing anti-retroviral medication; the enlightened framework of anti-discrimination legislation that is a model for Africa and the rest of the world; and the principled activism that ensured public availability of treatment for AIDS

PANEL 2

Professor Emily Jackson

London School of Economics

Regulatory Failure and Strategic Ignorance: the Sad Story of Seroxat and the Missing Trial Data

This paper will critically evaluate the regulation of medicines in the UK in the light of the recent announcement by the MHRA that, following a four and a half year long criminal investigation, there will be no prosecution of GlaxoSmithKline for their failure to communicate, in a timely manner, clinical trial data that demonstrated an increased risk of suicidal behaviour in some paediatric users of Seroxat. The reason for the decision not to prosecute is not that the investigation found that GSK had, in fact, complied with the law, but that the law in place at the relevant time was insufficiently clear.

Dr Shaun Pattinson

School of Law, University of Durham

Consent: Informational Symmetry and Asymmetry

This paper will examine informational disparities between the consent-giver and consent-receiver within a number of contexts. Three scenarios will be considered: one where there is informational symmetry between the protagonists but significant scientific uncertainty remains; one (outside the much examined context of medical treatment) where there is informational asymmetry between the protagonists because the consent-receiver has deliberately not disclosed information that the consent-giver would consider material; and a scenario in which there is informational symmetry at the time that consent is obtained, but not when that consent-receiver seeks to rely upon that consent. I shall argue that the relative informational position of the protagonists is crucial (though not decisive) to their respective responsibilities.

PANEL 3

Dr Bonita Meyersfeld

The Odysseus Trust

Domestic Violence: An International Health Crisis

Domestic violence continues globally partly because of inadequate legal and medical responses. The health sector only recently identified domestic violence as a major international health risk for women. In terms of sheer international scale, domestic violence is the most common form of gender-violence and one of the greatest causes of ill-health to women. The legal and health sectors are responding to the internationalization of domestic violence and it is imperative that their development intersects.

Phillip Cole

Middlesex University

Migration and the Human Right to Health Care

The British government is in the process of considering the exclusion of certain groups of migrants - those considered to be present ‘illegally’ -- from primary health care provided by the National Health Service. One question which arises is whether such an exclusion violates the human right to health care. In this paper I examine international instruments embodying the human right to health and interpretations of those instruments, and conclude that these exclusions are in fact violations of obligations imposed under international law. However, it is not clear in what sense the United Kingdom can be held to account for these violations: there is no legal remedy available. However, despite the problem of enforcement, the understanding of the human right to health embodied in international instruments may give us the basis for developing a human rights-based theory of global justice in health care.

Dr Sylvie Da Lomba

University of Strathclyde

Citizenship rights v. the rights of persons: Irregular migrants’ access to health care in France, England and Quebec

The paper seeks to examine the extent to which national citizenship constrains irregular migrants’ eligibility for basic social rights, thus creating acute tensions between citizenship rights and the rights of persons. A comparative study of irregular migrants’ access to health care in France, England and Quebec reveals a strong nexus between immigration status and treatment in the social sphere that mediates the distribution of basic social rights to others. It follows that access to health care tends to be predicated on one’s position vis-à-vis the nation state. As a result irregular migrants are largely excluded from national health care systems. Yet access to health care is also a fundamental right conferred on persons owing to their humaneness and irrespective of their legal status in the nation state. Irregular migrants’ illegality, however, continues to hamper their access to health care. This is certainly the case in the three jurisdictions under consideration notwithstanding their differing approaches. Indeed, whilst French law stigmatises irregular migrants in that they can only access health care through a specific scheme, legal provisions in England and Quebec ignore their existence as potential health care users. The challenge is therefore to make immigration status less relevant to eligibility for basic social rights and allow human rights to transcend the migrant/citizen divide.

PANEL 4

Clifford Middleton

National Institute of Clinical Excellence

The Relevance of Values to NICE Decisions

The National Institute for Health and Clinical Excellence (NICE) provides guidance to the NHS and others on preventing and treating ill health and promoting good health. This involves making many decisions - often difficult ones that can turn out to be controversial. In this talk, I shall emphasise the relevance of values to NICE decisions – a fact that can be obscured by the highly technical aids to decision-making NICE often uses - and describe some features of the organisation that are due to its recognition of the relevance of values.

Nigel Giffin QC

11 King’s Bench Walk

State Resources and Funding Decisions

TO BE PROVIDED

Ian Wise

Doughty Street Chambers

From Cambridge to Swindon: the emergence of procedural scrutiny of healthcare decisions

This talk explores the recent engagement of the courts in the procedural obligations of healthcare bodies with particular reference to the Rogers and Otley cases. It will examine how the courts have courts have moved from their traditional hands-off approach to such decisions as seen in cases such as Cambridge and the implications of a more developed analytical scrutiny of decisions as to whether to provide treatment made by healthcare bodies. Consideration will be given to whether the “anxious scrutiny” demanded of such decisions will lead to a greater transparency in such decision-making and if so whether it will lead to a more proactive role for the public law courts.

PANEL 5

Professor Scott Burris

Temple University

Implementation and the Side Effects of Human Rights Campaigning

Advocacy for a robust right to health is a worthy occupation for lawyers, not only because it might actually be adopted and ultimately directly influence the course of policy and practice, but because it represents continued investment in an infrastructure of humane legality. But human rights, like most medicines, has side effects. These include Intoxication (the confusion of well-articulated arguments with actual change), Peripheral Insensitivity (lack of attention to the capacities of marginalized people) and Constipation (the defensive adoption of laws affirming human rights as a tactic for delaying change). This presentation will discuss ways of avoiding side effects by linking legal advocacy for human rights with vigorous bottom-up, implementation oriented strategies.

Reverend Canon Ted Karpf

World Health Organization

Decent Care Values in Community: A Developmental Synthesis

With 39.5 million persons living with HIV and more than 25 million deaths to date, one wonders if anything has changed. “Yes”, in as much as we are in our 25th year of AIDS and we are acknowledging that it has been more than a generation of trauma, disease and death; and “No” because people are still getting infected and still more are perishing from this often sexually transmitted infection. And a further “No”, because in too many communities it is still business as usual. So I wonder how many more infections or deaths it will take before this really changes? How long before policies are in place globally that ensure that infections are reduced and decent care is the norm?

PANEL 6

Professor Peter Bartlett

School of Law, University of Nottingham

The Great Lie: Human Rights for Users of Mental Health Services

In the last decades, we have witnessed an explosion in human rights instruments purporting to create and protect the human rights of people with mental health difficulties. We have seen, for example, the UN Disabilities Convention (2006), the UN Mental Illness Principles (1991), the Council of Europe Recommendation on Legal Protection of Incapable Adults (1999), the relevant CPT standards for psychiatric facilities (1998), the Council of Europe Recommendation concerning the protection of the human rights and dignity of persons with mental disorder (2004). There is a now a stream of litigation under the European Convention on Human Rights, and, of course, the direct application of the ECHR introduced into UK domestic law by the Human Rights Act has provided a similar spurt of litigation.

All of this is well and good. Anyone considering the standards of health care and of psychiatric facilities both abroad and in this country will be aware of how much improvement is required; and some good and important work is being done by human rights advocates in this regard.

Human rights is not simply about standards of services and facilities, however. They are also about attitudes to people and respect for people. It is about an assurance in disadvantaged groups that their members will be treated with respect throughout civil society. Such changes are fundamental, since without them it is difficult to see that the more general policies concerning social diversity and social inclusion can be successful.

It is therefore particularly disappointing that our domestic governments and our courts continue to rely on old and stereotypical images of people with mental health problems. The UK government’s language in the recent debates regarding reform of the Mental Health Act provide a depressing indication that, in its view, people with mental health difficulties should not be permitted to make basic choices about their care and treatment. Instead, people with mental health difficulties were to be controlled.