The protection of rights and its positive impact on well-being
The Honourable Catherine Branson QC
Women’s Hospitals Australasia & Children’s Hospitals Australasia
10 November 2010
1. Introduction
I would like to begin today by acknowledging the Wurundjeri people of the Kulin nation of peoples and pay my respects to their elders past and present.
I am delighted to be here this morning to speak about the protection of human rights and its positive impact on health and well-being. The link between human rights and health, particularly the health of women and children, has been a particular interest of mine at least since I became a board member (now many years ago) of Adelaide’s then specialist women’s hospital and then a Deputy Chair of Australia’s first combined women’s and children’s hospital, the Women and Children’s Hospital in Adelaide. I firmly believe that it is through a human rights framework that we can best improve health outcomes for all people in Australia.
There is a very close relationship between human rights and well-being. The protection and promotion of most, if not all, rights are relevant to our well-being. This morning, I wish to consider the way in which the human rights framework can strengthen policy and action to improve the well-being of all people in Australia.
The Convention on the Rights of the Child clearly articulates the rights of children to live, to grow and to develop to their full potential. Similarly, the Convention on the Elimination of Discrimination against Women calls on State Parties to ensure the full development and advancement of women and to guarantee equality with men.[1] By signing the international treaties that establish these fundamental rights and freedoms, Australia has made commitments to uphold certain minimum standards that are necessary to ensure all Australians reach their full potential.
I do not intend to limit myself to a discussion of health policy and health systems. Indeed, I expect that most of you here are far more expert than me in those areas. Rather, I hope to demonstrate that human rights practitioners and medical practitioners working together can build a healthier and fairer Australia.
Some Australian jurisdictions have already begun to include health and well-being as a key component of all policy development. The Adelaide Statement, for example, outlines the need for a new social contract between all sectors to advance human development, sustainability and equity as well as to improve health outcomes.[2] Later today I will be launching the Charter of Children’s Rights in Healthcare, another example of the medical profession recognising the interdependence of strong rights protection and good health.
This morning I would like to discuss three main ideas. First, I will examine the concept of health through a human rights framework. Then I will consider the relationship between the social determinants of health and right-based approaches to health and well-being. I will look briefly at why it makes sense for us to focus particularly on promoting and protecting the rights of women and children. And finally, I will make some suggestions about what it is we can do to implement a rights-based approach to policy development, decision-making and community action both in the health sector and more broadly to improve individual well-being and lead to a healthier Australia.
2. Health as a human right
The right to the highest attainable standard of health is a fundamental human right contained in a number of international human rights documents. The Universal Declaration of Human Rights affirms the right of every individual to a standard of living adequate to good health. Under the International Covenant on Economic, Social and Cultural Rights every person has a right to ‘the enjoyment of the highest attainable standard of physical and mental health’. As a signatory to that international Convention, the Australian Government has a binding international obligation to uphold the right to health for all people in Australia.
I do not wish to devote all my time this morning to a discussion of the exact content of the international right to health. I would like to note, however, that the right to the highest attainable standard of health is one of the family of rights known as ‘economic, social and cultural’ rights. This family of rights refers to those rights that are necessary to meet basic human needs, and includes rights such as those to food, water, education, employment and of course health. Economic, social and cultural rights tend to impose on States what we refer to as ‘positive obligations’. The other set of rights is known as ‘civil and political rights’. These rights are concerned with the political rights and freedoms fundamental to a free and democratic society – for example, the right to participate in public life including by voting in periodic elections, freedom of expression and association and freedom from arbitrary arrest. Because this category of rights prohibits the State from doing certain things civil and political rights are known as ‘negative rights’.
In reality, the distinction between economic, social and cultural rights and civil and political rights is artificial. Human rights are indivisible; no right is more important than any other. Human rights are also interdependent; our ability to protect one right may depend on us fulfilling others. In essence, the realisation of all human rights is necessary for an individual to live with dignity.
This is particularly evident in the field of health. Realising the right to the highest attainable standard of health depends on how well we protect and promote the full range of human rights. Just as good health is indispensible for the exercise of other sets of rights, the protection and promotion of other rights is indispensible for good health. Rights such as those to food, housing, work, education, non-discrimination, equality and participation are integral to the realisation of the highest attainable standard of health.[3] It is not just doctors, patients, hospitals and health systems that have a responsibility to implement the right to health. Responsibility for ensuring well-being rests across the whole range of government portfolios, public servants and service providers.
2.1 DisCO
In July 2008, Australia was among the first governments to ratify the International Convention on the Rights of Persons with Disabilities. Ratifying the Convention was an important symbolic commitment to the equal enjoyment of rights for the one in five Australians who live with some kind of disability.
I use the example of the Convention on the Rights of Persons with Disabilities, or the DisCO as it has come to be known, because for many the issue of disability is a health issue. What the DisCO makes clear, however, is that, viewed through a human rights lens, addressing disability is about ensuring dignity, justice and equality.[4] The Convention is not limited to articles about the provision of medical care for persons living with disabilities. Rather, it considers a full range of measures necessary to guarantee all the human rights and fundamental freedoms of persons with disabilities, including in relation to access to information, public transport, education, family life, privacy, access to justice, work and employment and participation in community and political life.[5] In doing so, the DisCO, perhaps more so than earlier Conventions, has captured the notion that human rights are about transforming whole social structures to ensure the well-being and dignity of every individual.
3. The social determinants of health
The concept of transforming the whole social structure to ensure well-being is reflected by the public health theory of ‘the social gradient’. As many of you no doubt know, the social gradient refers to the fact that poor social and economic circumstances affect health outcomes throughout a person’s life.[6]
This is a health issue. But it is also a social justice issue. According to the World Health Organisation:
(The) toxic combination of bad policies, economics, and politics is in large measure responsible for the fact that a majority of people in the world do not enjoy the good health that is biologically possible. Social injustice is killing people on a grand scale.[7]
The social gradient applies both between and within countries. Even in a wealthy country such as ours, the poor, the less-educated and the marginalised can expect to suffer more illness and to die earlier than those with greater wealth. In Australia, the evidence of this is perhaps no more stark than in the statistics that demonstrate the extent of Indigenous disadvantage and the devastating impact that disadvantage has on health outcomes for Indigenous Australians.
Again, as many of you will know, in 2009, the Australian Institute of Health and Welfare released a publication entitled ‘A Picture of Australia’s children’. In it they have set out a list of key national indicators used to measure the health, development and well-being of children in Australia. The breadth of indicators in that report reflects the integrated nature of the social gradient; indicators measure not only biomedical factors such as mortality, disability and mental health but also a range of socio-economic indicators such as levels of physical activity, access to early learning, literacy and numeracy opportunities, tobacco and alcohol use, family functioning, neighbourhood safety, school relationships and bullying, homelessness and social capital.
The list is long and diverse. What these indicators capture is the need to adopt a social understanding of what it means to be healthy, rather than a strictly physical definition of health focusing on the absence of disease or illness.
Health is about more than a functioning health care system. Research has shown that it is ‘the social conditions in which people are born, live and work [that] are the single most important determinant of good health or ill health, of a long and productive life, or a short and miserable one’[8]. There is, therefore, a very real need for health practitioners to work together with human rights practitioners, public servants, teachers, service providers, parents, young people and others to protect the full range of rights and to guarantee positive health outcomes for all Australians.
3.1 A rights based approach to health in Australia
In 2005, the Social Justice Commissioner tabled in Parliament a report which contained a human rights-based analysis of the gap between Indigenous and non-Indigenous health in Australia. Through a human rights lens, the gap was characterised by inequality of opportunity in access to health care, failure to address long-standing health issues and a denial of a range of civil, political, economic, social and cultural rights that impacted on Indigenous peoples’ health.
Fifteen years earlier, the then Aboriginal and Torres Strait Islander Social Justice Commissioner had written:
The gap between the numbers of our people who live and the number who should be alive is one measure of the inequality we have endured. The gap between the numbers living a healthy, socially-functional life and those living a life of pain, humiliation and dysfunction is another measure. They are both measures of our loss of elementary human rights.[9]
Most recently, the Australian Government’s efforts to implement the right to health were examined by the United Nations Special Rapporteur during his visit to Australia at the end of 2009. One of the key themes of the mission was the impact of poverty and discrimination, including inequalities, on the enjoyment of the right to health for Indigenous Australians. The Special Rapporteur noted the stark inequalities in health outcomes between Indigenous and non-Indigenous Australians, the obstacles Indigenous people encounter in accessing health services and cultural insensitivity and discrimination in hospital management.[10]
These three events; the 1990 Social Justice Report, the call in 2005 to close the gap in health outcomes between Indigenous and non-Indigenous Australians and the 2009 UN Special Rapporteur Report, have all framed the standard of Indigenous health as a human rights issue. This has had a number of benefits.
First, it has created an empowering environment for Aboriginal and Torres Strait Islander peoples. Second, it has strengthened the accountability of government – it has made it possible to hold governments responsible for the commitments they have made. Third, it has acknowledged the link between inequality in health status and systemic discrimination in access to services, including access to primary health care. And fourth, it has introduced a framework through which to consider a holistic ‘health in all policies’ approach to Aboriginal and Torres Strait Islander affairs.[11]
I recently visited an Indigenous town camp just outside of Darwin and was shocked by the living conditions I saw there. Most of the houses would have been condemned years ago had they been intended for occupancy by white Australians. Although the wet was approaching, the houses were not waterproof. In one house every member of the family had to sleep on a mattress in the middle of the living room as that was the only part of the house likely to remain dry when it rained. Other than in the kitchens, there were no cupboards or other places to store possessions so that all clothes and other possessions had to be stored on the floor or on beds. Numerous floor tiles were missing, kitchen taps were not just dripping but in one case actually running having been left unrepaired, I was told, for seven years despite regular complaint. Broken louvres had not been replaced; the walls were covered with graffiti; the unlined metal roof was covered with cobwebs which appeared at least a decade old. No Australian should be living in conditions like this. In particular, no Australian child should be raised in such appallingly substandard housing. We cannot pretend that those who are have anything like a fair life chance when compared with most Australian children; a fair opportunity to experience good health, a decent education and well-being generally.
Rather than just being a measure of parity in life expectancy, Indigenous health viewed through the human rights lens is about the opportunity to be healthy; to have access to good food, to visit a doctor, to have access to safe drinking water, to get a good education and to live in healthy housing.
3.2 Women and children
While the right to health applies to everyone in Australia, there are some for whom we must work harder to ensure a life dignity in which they can reach their full potential. Indigenous Australians are one group. Those living with disability are another.
This audience has a particular interest in women and children’s health. There are very real reasons why we should target women and children as recipients of interventions for improving health outcomes and overall well-being.
In September of this year, the United Nations launched the Global Strategy for Women’s and Children’s Health. The Strategy adopts a social model of health and asks us to focus our attention and resources on people, not their illnesses; on health, not disease.[12] The Strategy argues that investing in women’s and children’s health makes good sense, not only because it is the right thing to do, but because it builds stable, peaceful and productive societies.
The development of health policy in Australia is taking a similar direction. The Australian Government is currently formulating a new National Women’s Health Policy because it believes that improving the health and well-being of women will improve the health and well-being of families and whole communities.[13]
I would like to explore the connection between the health and human rights of women by considering the example of violence, a significant health and well-being issue facing women in Australia. Violence is an abuse of power and can take a number of forms, including childhood abuse, sexual harassment, family violence, sexual assault and discrimination. Violence against women is a significant health, social and economic issue in Australia.
Over half of all women in Australia report experiencing at least one form of physical violence over their lifetime and over a third report experiencing sexual violence at least once during their adult lifetime.[14] Some groups of women, including Indigenous women, women with disabilities, women from lower socioeconomic groups and younger women experience higher rates of violence.[15] Research from Victoria shows that intimate partner violence is the leading contributor to death, disability and illness in women aged 15 to 44.[16] Family violence is also the leading cause of family homelessness in Australia, with half of the people using homelessness services being parents with children.[17] Looking beyond the high personal cost, violence against women is estimated to cost the Australian economy around $8 billion a year.[18]
Violence against women is, in itself, a serious human rights issue. But it is also a symptom and a cause of other gender-based inequalities in areas like income and employment. Women, for example, earn 16 per cent less than their male counterparts, are less likely to have superannuation and less likely to be in the paid labour force.[19] This entrenched social and economic inequality limits the ability of women to access services, to seek help and to take other steps to protect their own health.[20]
We should be further motivated to prevent violence against women because research shows that the health and well-being of women is related directly to the health and well-being of their children. Women who experienced abuse during childhood were one and a half times more likely to experience some form of violence in adulthood.[21] If we are better able to protect and promote the rights of women in Australia, we will be better meeting our international obligations towards the health and well-being of children in Australia.
Promoting and protecting the rights of children in Australia is a way in which we invest in the future well-being of our society. The organisation ‘the new economic foundation’, which describes itself as a ‘think-and-do tank’ based in the UK, has recently produced a research report entitled ‘Backing the future: why investing in children is good for us all’. The report makes an economic case, a social case and a psychological case for promoting the well-being of children.[22]
That report notes that when the State is searching for savings, preventive services of the type that are most often used by children and young people are often the first to be cut. In the current economic climate, both globally and domestically, we must be aware that the direction in which policy develops (across all government portfolios) has the potential to impact on the well-being of our children. Ensuring that human rights principles and values guide the development of policy will significantly assist the achievement of positive and healthy futures for children in Australia.
4. What role do health professionals play in protecting and promoting human rights
Health professionals are also human rights activists. Every day, when you as doctors, nurses, allied health professionals and others in the health field advocate on behalf of a patient to ensure they get the best treatment available, receive interventions that reduce suffering or gain access to facilities and services that improve quality of life you are ensuring that that patient’s human rights are being met.
To illustrate the connection between advocacy and the realisation of human rights, I would like to take some examples from Victoria, a jurisdiction which has a human rights charter. These examples demonstrate the positive impact of a human rights culture on the quality of life of individual patients.
A 19 year old woman with cerebral palsy living in Victoria was left housebound while the Government was acting slowly in responding to her request for disability support services. As her mental state was deteriorating, her advocate wrote to the relevant government department citing the woman’s right not to be treated in a cruel inhuman or degrading way. Soon after receiving the letter from the advocate raising human rights concerns, the government department deemed the woman eligible for support services.[23] In another example from Victoria, a woman with a disability was unable to leave her house because the local authorities refused to build a ramp on the grounds of cost. The woman’s occupational therapist advocated on behalf of the woman on the grounds of a right to freedom of movement, the right to participate in public life and a protection against inhuman and degrading treatment. After hearing the human rights arguments, the department provided the woman with an access ramp.[24]
These are just two concrete examples of how human rights principles and language have been used to support the right to health in its broader sense. Even in jurisdictions without specific legislated human rights protections, advocacy that uses a human rights framework can be a powerful tool for ensuring health and well-being. We must ensure, therefore, that we are always conscious of the values that inform all human rights: equality, respect for human dignity and participation. We must also understand how these values can be used to create a protective and supportive environment in which all Australians thrive and live with dignity.
5. Conclusion: making Australia a healthier society
Considerable synergy should be generated by the adoption of a human rights based approach to policy development and decision making together with a social model of health. It is evident that protecting and promoting human rights will lead to a healthier society. We can improve the health of our communities by focusing not just on the provision of biomedical services, but on inclusive economic and social development, on building strong social networks and fostering positive relationships between individuals and between individuals and the government.
As a society, we must recognise that responsibility for good health does not rest only with doctors and their patients, hospitals and health systems. The responsibility for realising the right to the highest attainable standard of health applies equally to parents, to teachers, to public servants and to the community as a whole. The health and well-being of people in Australia is directly related to the extent to which we meet our responsibility to protect and promote the full spectrum of human rights. We must, therefore, continue to ensure respect for the full range of human rights in order to create the supportive and enabling environment necessary for every individual to live a dignified life.
[1] Convention on the
Elimination of Discrimination against Women, Article
3.
[2] Adelaide Statement on Health
in All Polices, World Health Organisation, Government of South Australia,
Adelaide 2010.
[3] Committee on
Economic, Social and Cultural Rights, General Comment 14, The right to the
highest attainable standard of health, UN Doc/ E/C.12/2000/4, 11 August
2000.
[4] United Nations Enable,
International Day of Persons with Disabilities 3 December 2008, Convention on
the Rights of Persons with Disabilities: Dignity and justice for all of us, Programme of the International Day at United Nations Headquarters, New
York, 2008 available at http://www.un.org/disabilities/default.asp?navid=9&pid=109.
[5] UN Convention on the Rights of
Persons with Disabilities, UN Doc. A/61/611, 6 December 2006, available at http://www.un.org/esa/socdev/enable/rights/convtexte.htm.
[6] World Health Organisation
Europe, Richard Wilkinson and Michael Marmot (eds), Social determinants of
health: the solid facts, 2003.
[7] The World Health Organisation
Commission on Social Determinants of Health, Final Report, Closing the gap in
a generation, Health equity through action on the social determinants of health, 2008.
[8] Dr Margaret Chan,
Director-General, World Health Organisation, Launch of the final report of
the Commission on Social Determinants of Health, 28 August 2008, available
at http://www.who.int/dg/speeches/2008/20080828/en/index.html.
[9] Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report –
2nd Report, 1994,
pp99-100.
[10] Report of the
Special Rapporteur on his visit to Australia, A/HRC/15, 4 March 2010, available
at www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.20.Add4.pdf
[11] For more information, see Human Rights and Equal Opportunity Commission, Social
Justice Report 2005.
[12] United
Nations Global Strategy for Women’s and Children’s Health, September
2010.
[13]Department of Health
and Ageing, Development of a new National Women’s Health Policy
Consultation Discussion Paper 2009, available at http://www.health.gov.au/internet/main/publishing.nsf/Content/whdp-09~whdp-09-ch3
[14] Jenny Mouzos and Toni
Makkai, Women’s Experiences of Male Violence, Findings from the Australian
Component of the International Violence Against Women Survey, Australian
Institute of Criminology Research and Public Policy Series No 56,
2004.
[15] Australian Social
Trends 2007, Women’s Experience of Partner Violence, Australian
Bureau of Statistics.
[16] Victoria Health Promotion Foundation, The health costs of violence, Measuring
the burden of disease caused by intimate partner violence, A summary of
findings, June 2004.
[17] Australian Federation of Homelessness Organisations, Homelessness and
Families: Factsheet, 2006.
[18] Access Economics, The cost of domestic violence to the Australian economy: part I and part
II, Commonwealth Office of the Status of Women,
2004.
[19] Australian Bureau of
Statistics, Labour Force, Publication 6202.0 September
2010.
[20] WHO, Global Strategy
for Women’s and Children’s Health, September 2010.
[21] Jenny Mouzos and Toni
Makkai, Women’s Experiences of Male Violence, Findings from the Australian
Component of the International Violence Against Women Survey, Australian
Institute of Criminology Research and Public Policy Series No 56,
2004.
[22] the new economic
foundation and action for children, Backing the Future: why investing in
children is good for us all, 16 September 2009, available at http://www.neweconomics.org/publications/backing-future.
[23] Human Rights Law Resource
Centre, Case Studies: How a Human Rights Act can Promote Dignity and Address
Disadvantage, available at http://www.hrlrc.org.au/content/topics/national-human-rights-consultation/case-studies/
[24] Human Rights Law Resource
Centre, Case Studies: How a Human Rights Act can Promote Dignity and Address
Disadvantage, available at http://www.hrlrc.org.au/content/topics/national-human-rights-consultation/case-studies/
