The Right to Health

See also Human Rights Acts 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic)

Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 46 ILM 443 (entered into force 12 May 2008). Australia signed on 30 March 2007 and ratified on 17 July 2008. It entered into force in Australia on 16 August 2008. Australia acceded to the CRPD Optional Protocol on 21 August 2009.

The CRPD titles each Article to enhance accessibility. Here, each CRPD title appears in brackets following the Article number.

See McSherry Bernadette (ed), ‘International Trends in Mental Health Laws’ (2008) 26(2) Law in Context Special Issue; and McSherry Bernadette Weller Penny (eds), Rethinking Rights-Based Mental Health Law (forthcoming).

‘Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.’ Constitution of the World Health Organisation. See <who.int/governance/eb/who_constitution_en.pdf> at 12 May 2010. The preamble adds that ‘the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.’

Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 1st plen mtg, 71, UN Doc A/810 (1948).

International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), ratified by Australia on 13 November 1980.

International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 art 5 (entered into force 4 January 1964); Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1 March 1980, 1249 UNTS 13 art 12 (entered into force 3 September 1981); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 art 24 (entered into force 16 January 1991); Pivotal to the interpretation … [of Convention Articles] is the question of capacity, the structures and systems that are necessary to support a person with diminished legal capacity, and the mechanisms that may be deployed if a person lacks capacity to make decisions. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families opened for signature 2 May 1991, 30 ILM 1517 arts 28, 43(e) and 45(c) (entered into force on 1 July 2003); Convention on the Rights of Persons with Disabilities, above n 3.

European Social Charter, opened for signature 18 October 1961, 529 UNTS 89 arts 11, 13, 15 (entered into force 26 February 1965); Additional Protocol to the American Convention of Human Rights in the Area of Economic, Social and Cultural Rights, opened for signature 17 November 1988, OASTS 69 art 10 (entered into force 16 November 1999); African Charter on Human and Peoples' Rights, opened for signature 27 June 1981, 1520 UNTS 217 arts 16, 18 (entered into force 21 October 1986).

WHO, Fact Sheet 31, UN GE.08–41061, June 2008, 10.

International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 art 7 (entered into force 23 March 1976) ratified by Australia 13 November 1980.

See also Declaration of Alma-Ata, International Conference on Primary Health Care, Alma-Ata, USSR, September 1978; the United Nations Millennium Declaration, GA Res 55/2, UN GAOR, 55th sess, UN Doc A/Res/55/2 (2000); the Declaration of Commitment on HIV/AIDS, GA Res S-26/2, UN GAOR, 26th sess, UN Doc A/Res/S-26/2 (2001).

General Comment 14 — The Right to the Highest Attainable Standard of Health, UN ESCOR, 22nd sess, [9] UN Doc E/C.12/2000/4 (2000). See also General Comment 3 on the nature of States parties' obligations, Article 2 of the ICESCR.

WHO above n 9, 3.

General Comment 14, above n 14.

Ibid [12(c)].

Ibid [12(b)].

Progressive realisation means that States have a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realisation of the right to health. See www.un.org.au.

Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc E/CN.4/2005/51 (2005).

Vienna Declaration and Programme of Action Report of the World Conference on Human Rights, UN Doc/A/CONF.157/23 (1993).

Quinn Gerard Degener Theresia , Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability (2002).

Gostin Lawrence , ‘“Old” and “new” institutions for persons with mental illness: Treatment, punishment or preventive confinement?’ (2008) 122(9) Public Health 906, 908.

Carney Terry , ‘The mental health service crisis of neo-liberalism — An antipodean perspective’ (2008) 31(2) International Journal of Law and Psychiatry 101; Savy Pauline , ‘Outcry and silence: The social implications of asylum closure in Australia’ (2005) 14(3) Health Sociology Review 205.

Burdekin Brian , Human rights and mental illness. Report of the National Inquiry into human rights of people with mental illness' (1993); Mental Health Council of Australia & Brain and Mind Research Institute, Not for Service: Experiences of injustice and despair in mental health care in Australia (2005). The habit of treating people with psychosocial disabilities without their free and informed consent, often on the misplaced assumption that they lack the requisite capacity, constitutes a violation of the right to health, and is regarded as unethical conduct on the part of the health professional.

Universal Declaration of Human Rights, above n 7.

International Covenant on Civil and Political Rights, above n 12.

WHO, above n 11, 17.

Weller Penny , ‘The Convention on the Rights of Persons with Disabilities: Developing Law and Ethics’ 35(1) Alternative Law Journal 8.

Provost René , International human rights and humanitarian law (2002) 277.

Lawson Anna , ‘The United Nations Convention on the Rights of Persons with Disabilities: New era or false dawn?’ (2007) 34(2) Syracuse Journal of International Law & Commerce 563.

Grover Anand , ‘Preliminary observations and recommendations’ (Press statement, 4 December 2009). <http://www2.ohchr.org/english/issues/health/right/docs/PressStatementAustralia041209.doc> at 12 May 2010. Mr Anand Grover was appointed UN Special Rapporteur for Health in August 2008. He will present his final report on the mission to Australia to the UN Human Rights Council in June 2010.

UN Enable — Declarations and Reservations <un.org/disabilities/default.asp/documents/convention/documents/toolaction/www.disstudies.org/default.asp?id=475> at 12 May 2010.

Report No 95, Joint Standing Committee on Treaties (JSCOT), 16 October 2008, Chapter 2: CRPD, para 2.7.

Keyzer Patrick McSherry Bernadette , Sex offenders and preventive detention (2009).

Bartlett Peter , ‘The United Nations Convention on the Rights of Persons with Disabilities and the future of mental health law’ (2009) 8(12) Psychiatry 496.