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Multiple exams of international health law
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Question 1 - A patient refuses treatment (20 points)Mrs X is 35 and in need of dialysis. She is refusing treatment because she is scared of the treatment
which she believes is invasive. She has been counselled about the nature of the treatment and
there are no alternatives that would be of practical benefit. She is competent to make treatment
decisions. She understands that if she refuses dialysis she will die. She has a daughter of 12 years
who lives at home. The clinician feels very strongly that she should receive dialysis but despite
numerous attempts to persuade her she refuses. Can the clinician treat her? Provide an answer
based on human rights arguments. (max 450 words, 20 points)
This case is based on informed consent. The patient has the right to withdraw unless she is unable to:
1. understand the information relevant to the decision
2. retain it
3. Use or weigh it as part of the process of making the decision
4. Communicate one’s decision.
She is able to do all 4, she has been counselled and is competent to make treatment decisions.
Article 8 from ECHR: right to private life, which protects autonomy and physical and moral integrity.
The autonomy of the patient is protected and she has the right to decide about her own physical and
moral integrity. Supported by Article 9 from ECHR: Freedom of thought. Mrs X can form an opinion
about the treatment.
She does not fall under any of the exceptions in which her opinion should not be considered as the
only one. She is capable to decide for her own, even if there is a child involved.
Declaration on the promotion of patients’ rights in Europe 28 June 1994 para 3.2; active citizenship
network, Europe Charter on patients’ rights November 2002, article 4 state:
Patient autonomy implies that no authority is entitled to deprive the individual of their right to
choose what they deem best for themselves, including the right to refuse or halt medical treatments.
Additionally: in the case of Pretty v the United Kingdom, a case concerning assisted suicide which was
decided in 1993. On the right to informed consent, the Court stated that ‘the refusal to accept a
particular treatment might, inevitavly, lead to a fatal outcome, yet the imposition of medical
treatment, without the consent of mentally competent adult patient, would interfere with a person’s
physical integrity in a manner capable of engaging the rights protected under article 8 para. 1 of the
Convention.
All this adds up to the following verdict: Mrs. X has the right to refuse treatment and this will has to
be accepted and cannot be overpowered by the doctor.
The answer is no, provided that mrs X is competent. Decision-making regarding medical treatment is
covered by the right to respect for private life, as protected by i.a. Article 8 of the European
Convention on Human Rights (EHRC). Even if the proposed treatment is lifesaving, the patient has the
right to refuse it. Not respecting that decision will amount to a violation of the right protected by
Article 8 EHRC, provided – again – that the patient concerned is competent. The European Court of
Human Human Rights stated as much in several rulings, i.a. Jehovah’s witnesses of Moscow v Russia
(app no 302/02). An argument based on provisions of the Biomedicine Convention with the same
,outcome is also considered correct, provided that it is explicitly stated only a few countries are party
to that treaty, unlike the EHRC.
Question 2-Migrant healthcare (30 points)
In the case D v UK, the applicant was arrested at a UK airport for possession of cocaine and
sentenced to a three-year term of imprisonment. Immediately prior to his release immigration
authorities issued orders for the applicant deportation to his home country, Nigeria. Pending his
removal, he requested to remain in the United Kingdom since he was suffering from AIDS in an
advanced and terminal stage, arguing that his removal to Nigeria would entail a loss of medical
treatment he was receiving in the UK. Unsuccessful in his request to the national courts, he applied
to the European Court of Human Rights in Strassbourg, arguing - inter alia - that his removal to
Nigeria would violate his human rights.
a. Which human rights are at stake? (max 200 words, 10 points)
ECHR
Article 2- right to life
Everyone’s life shall be protected by law. In this case, the applicant will loose medical treatment he
received in the UK. The consequences of this deportation for his health due to this loss are not
mentioned, but it could be possible that this switch could lead to his death since he is currently in an
advanced and terminal stage.
ICESCR
Article 12
1. The State Parties to the present Covenant recognize the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health.
For the applicant, the highest attainable standard of health would mean that he will have to stay in
the UK for the treatment of his AIDS.
Universal declarations of human rights
Article 5.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
For the applicant, denying access to medicines by deporting him to Nigeria, this is seen as inhuman
treatment.
Applying to the court in Strassbourg only makes sense if one or more of the rights protected
by the EHRC are violated. The UK is party to EHRC. The rights that come to mind are the
right to life as protected by Article 2, the prohibition of torture as laid down in Article 3
EHRC ad the right to respect for private life (Article 8). Article 2 must be mentioned in the
answer with the argument that that right – according to relevant case also imposes positive
state obligations, and not merely negative ones. Article 3 must be mentioned with references
to relevant case law, more specifically, D v UK of 2 May 1997, app no 30240/96
, b. What would be a likely outcome of this case and based on what arguments? (max 400 words, 20
points)
By deporting the applicant to Nigeria, which would result in the loss of necessary medical treatment,
the immigration authorities are violating article 3 of ECHR- prohibition of inhuman treatment.
Additionally, Article 12 of the International Covenant on Economic, Social and Cultural Rights:
1. The State Parties to the present Covenant recognize the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health.
2. 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
disease.
(D) The creation of conditions which would assure to all medical service and medical
attention in the event of sickness.
Especially article 12d, states that the has to create conditions which would assure to all medical
service, so in this case, it is not allowed to deport the applicant since this would result in failure to
assure all medical service.
Article 12- special topics of broad application
Non-discrimination and equal treatment
19. With respect to the right to health, equality of access to health care and health services has to be
emphasized. States have a special obligation to provide those who do not have sufficient means with
the necessary health insurance and health-care facilities, and to prevent any discrimination on
internationally prohibited grounds in the provision of health care and health services, especially with
respect to the core obligations of the right to health. (16) Inappropriate health resource allocation
can lead to discrimination that may not be overt. For example, investments should not
disproportionately favour expensive curative health services which are often accessible only to a
small, privileged fraction of the population, rather than primary and preventive health care
benefiting a far larger part of the population.
So the state has to provide access to health services with respect to the right to health and
inappropriate health resource allocation can lead to discrimination. Since the prisoner is still in the
UK, this means that the UK is the state which has to ensure for this access to health services.
The final verdict: The applicant should remain in the UK since deportation would violate his right to
health and would violate the prohibition of inhuman treatment.
Based on ECrtHR case law only an argument relating to Article 3 can be successful. But only
if, as the Court ruled in D v UK ((30240/96), ‘very exceptional circumstances’ are present.
Whether or not they actually are present in Nigeria, is not that relevant. But these
circumstances must be mentioned. References must be made to other case law (notably N v
UK of 27 may 2005, app no 26565/05) in which these circumstances were not present, and the
right by protected by Article 3 EHRC was – therefore - not violated by the expulsion.
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