The Right to Health is a Human Right: Ensuring access to health for homeless people

FEANTSA Conference, 12-13 October 2006, Wroclaw, Poland

Fiona CrowleyResearch & Legal Manager

Amnesty International (Irish Section)48 Fleet Street, Dublin 2, Ireland

+353 1 677 6361fcrowley@amnesty.ie

www.amnesty.ie

 

  

Amnesty is a worldwide voluntary movement working for human rights.  

It is independent of any government, political persuasion or religious creed.  It does not support or oppose any government or political system, nor does it

support or oppose the views of those whose rights it seeks to protect.  

It is concerned solely with the impartial protection of human rights.   Amnesty undertakes research and action focused on preventing and ending abuses

of the rights to physical and mental integrity, and freedom from discrimination.

Amnesty is a democratic, self-governing movement with more than 1.8 million members and supporters in over 150 countries and territories in every region of the

world, with more than 20,000 in Ireland.

Amnesty International

 

 

  

“Health and homelessness relate to each other in a multifaceted way.

Homelessness gives rise to many health problems, both mental and physical. Chronic homelessness leads to obvious and well-documented health problems.

The aggressive environment can lead to severe physical ailments, cutaneous and respiratory problems being amongst those that frequently reoccur. The severe stress

arising from environmental and lifestyle factors, as well as the frequent isolation associated with chronic homelessness, also leads to widespread mental health problems. Mental disorders such as depression, schizophrenia and personality

disorders are often associated with chronic homelessness. These may be worsened or even provoked by substance abuse, which is often a feature of homelessness. “

www.feantsa.org/code/en/theme.asp?ID=2

Health & Homelessness

 

 

  

“Housing and homelessness are inseparable. Becoming homeless is generally the

upshot of a series of life events which push some people into exclusion. But housing is often not their only problem: they also have health (lifestyle, sickness,

dependency, etc.), psychological and social problems (isolation, loss of self-confidence, depression, etc.) which mount up into a fast-track to homelessness. … Unfortunately, few countries take account of the special needs of the homeless in

these areas. Mostly they stop short at treating homeless people’s problems just as a housing issue.”

FEANTSA

Health & Homelessness

 

 

  

“For the roofless and houseless population in particular, their severe health situations

are generally worsened by the fact that they have a great deal of difficulty getting access to the healthcare that they need. Their situation of housing exclusion gives rise to a number of factors that make it much harder for them to access healthcare services

than it is for the general public.”

Exploring the Complex Relationship between Housing and Health through Consideration of the Health Needs of People who are Homeless

Dearbhal Murphy, Policy Officer, FEANTSA (June 2006)

Barriers to Healthcare

 

 

  

Homeless people themselves have identified the following as factors that prevent them from accessing primary healthcare:

·         Stigma: Homeless people tend to encounter negative reactions when they try to access healthcare services. Trying to deal with administrative personnel can be particularly difficult;

·         Discrimination: Homeless people find it harder to register with a General Practitioner than members of the general public. Requests for a permanent address and other details can constitute a real or a psychological barrier;

·         No continuity of care: The lifestyle of homeless people tends to be a mobile one, but there is frequently no flexibility in the healthcare system in this regard;

Ibid·        

Barriers to Healthcare contd

 

 

  

Homeless people themselves have identified the following as factors that prevent them from accessing primary healthcare:·        ·         Difficulty accessing drug and alcohol services: services may be insufficient and often have very long waiting times, but they are crucial for the health of homeless people;

·         Lack of knowledge about entitlements: some homeless feel that they don’t know what they are entitled to in the line of healthcare and services. If they were better informed they would be more confident about trying to access them;

·         Financial obstacles: in many countries there may be cost associated to accessing healthcare that makes it inaccessible to homeless people.

Ibid

Barriers to Healthcare contd

 

The Human Rights Based Approach to Health

The human rights-based approach means that it is the right of people experiencing or at risk of ill health to obtain the health and other services they need – not a privilege – and this should be an enforceable right.

The values and principles of health-related policy and practice should reflect the civil, political, economic, social and cultural human rights obligations binding on the state under international law.

WHO also promotes a human rights focus to service planning (e.g. ‘Mental Health Policy and Service Guidance Package’) and also to health-related legislation (e.g. ‘Resource Book on Human Rights and Mental Health Legislation’)

The Human Rights Based Approach to Health

The human rights-based approach is founded on the conviction that each and every human being, by virtue of being human, is a holder of rights. 

A right entails an obligation on the part of the government to respect, promote, protect and fulfill it. 

The legal and normative character of rights and the associated governmental obligations are based on international human rights treaties and other standards, as well as on national constitutional human rights provisions.

What are Human Rights?

Human rights encompass the full spectrum of internationally recognised human rights: civil, political, economic, social and cultural.

Human rights are the agreed minimum standards expected of states in how they treat their populations.

Fundamental human rights are universal, inalienable, indivisible and interdependent.

International Human Rights Law

International law is superior to domestic laws and Constitutions.

Even if international human rights treaties are not expressly reflected in domestic law, they are binding on states once ratified.

Ultimate responsibility for compliance with international law lies with the Government as a whole, but state agents, or those performing the duties of the states such as voluntary agencies, are also duty-holders.

Governments’ duty includes that of due dilgence in the prevention, investigation and punishment of human rights violations by non-state actors – i.e. regulating the behaviour of third parties, such as corporations, individuals.

Also, there is growing international attention to the culpability of individuals and non-state organisations under international human rights law.

International v. National law

In some countries, international law is automatically part of national law, and enforceable in their national courts – a legal system called “monism”.

In Ireland, and most countries, however, domestic legislation must be enacted to “incorporate” international law – this system is called “dualism” – and while this is usually a stated obligation when a treaty is ratified, it is not always complied with.

There is also a difference between signing and ratifying a convention. Signing usually indicates an intention to ratify, whereas ratifying means that the State is thereby legally bound by the convention’s provisions.

Universal Declaration of Human Rights, 1948

The UDHR is the first international written declaration of the basic human rights of all humankind, and was drafted by the United Nations in the aftermath of World War II.

The ambition behind it was to create a world where the dignity and humanity of each and every person would be respected by all nations.

“All human beings are born free and equal in dignity and rights.”

Article 1

Human Rights Conventions

•The binding conventions subsequently adopted by the UN and ratified by states provide a valuable degree of accountability in how states treat their populations today.

•A convention (also called a treaty) is a legally binding contract between nations.

•The convention that established the framework for the UN, the 1945 UN Charter , commits Member States to promote universal respect for human rights.

•Article 103 of the UN Charter establishes that:

“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

The International Bill of Rights

This is comprised of two conventions adopted in 1966:

International Covenant on Economic, Social and Cultural Rights (ICESCR)

International Covenant on Civil and Political Rights (ICCPR)

While the division of rights between these two conventions is artificial, the fact that the rights contained in the UDHR were spilt into two conventions was due to the global ideological divide during the Cold War when they were drafted.

There are two different types of enforcement requirements for the rights contained in these two conventions. The two types of obligations can be described as an “obligation of result” and an “obligation of conduct” .

Civil and Political Rights

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical

or scientific experimentation.”

Article 7International Covenant on Civil and Political Rights

This is a non-derogable right, from which no exception is permitted.

Economic, Social and Cultural Rights

•The Vienna Declaration and Platform of Action of 1993 recognizes that “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”

•Today, there are thousands of organizations around the world working on economic, social and cultural rights issues from a human rights-based perspective. Even “traditional” human rights organizations are now recognizing the importance of ESCR, and are working to protect and promote these rights around the world.

Economic, Social and Cultural Rights

“In the globalized world of today where there is greater wealth and opportunities for some, and destitution and despair for others, it has become clear that human rights

activists have a duty to promote not only legal justice but also social justice. … In this context, the decision of the 2001 ICM to open up to economic, social and cultural

rights was historic and timely. As ESC rights is an un-chartered terrain for Amnesty, this decision presents enormous challenges and opportunities for this global

movement.”

Amnesty’s International Executive Committee meeting, January 2003

Myths about Economic, Social and Cultural Rights

•ESCR are not really human rights.•Violations of ESCR are only important insofar as they help lay the foundation for violations of civil and political rights.•ECSR are “positive rights,” whereas CPR are “negative rights.”•ESCR relate to fuzzy ideas about social development and ending poverty.•ESCR do not imply any tangible State obligations, and are best addressed using a charity-based approach.•ESCR are “second generation” human rights.•ESCR are not justiciable rights and therefore cannot be legally enforced.

ESCR in International Human Rights Instruments

•The Universal Declaration of Human Rights•The International Covenant on Economic, Social and Cultural Rights•The Convention on the Elimination of All Forms of Racial Discrimination•The Convention on the Elimination of All Forms of Discrimination Against Women•The Convention on the Rights of the Child•The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families•The International Convention Relating to the Status of Refugees•The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War•And several others …

ESCR in Regional Human Rights Instruments

•The African [Banjul] Charter on Human and Peoples’ Right•The African Charter on the Rights and Welfare of the Child•The American Convention on Human Rights•The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights •The [European] Convention for the Protection of Human Rights and Fundamental Freedoms•The European Social Charter (original and revised)•The Charter of Fundamental Rights of the European Union •And several others…

Substantive Economic, Social and Cultural Rights

•The Right to Work and to Just and Favorable Conditions of Work•The Right to Social Security•The Right to An Adequate Standard of Living•The Right to Adequate Food and Nutrition •The Right to Clothing•The Right to Adequate Housing•The Right to Water•The Right to the Highest Attainable Standard of Health•The Right to Education

The Right to Adequate Housing

PHOTO: Dominican Republic

CREDIT: COHRE

• Throughout the world, over 1 billion people live in inadequate housing.

• Over 100 million people in the world are homelessness.

• Women, racial and ethnic minorities, children and elderly persons, and indigenous peoples are especially vulnerable to housing poverty.

• The right to adequate housing is enshrined in the UDHR and the ICESCR, among others.

The Right to Adequate Housing

“Adequate housing and reasonable living conditions are among the most basic needs of each individual. Housing is the first and last line of defence against social exclusion.

 The access to decent, stable housing is frequently also the indispensable precondition for the exercise of most of the other fundamental rights currently under discussion in

this forum and whose inclusion in the Charter appears not to pose a problem.”

Address from FEANTSA by Catherine Parmentier, General Secretary Audition of the Convention on the Charter of Fundamental Rights,  

Brussels, European Parliament, 27 April 2000

The Right to the Highest Attainable Standard of Health

•Article 25(1) of the Universal Declaration of Human Rights affirms: “Everyone has the right to a standard of living adequate for the health of himself [herself] and of his [her] family, including … medical care and necessary social services.”

•Article 12(1) of the ICESCR recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

The Right to the Highest Attainable Standard of Health

According to General Comment No. 14 of the UN Committee on ESCR, the right to health requires health services that meet the following interrelated and essential elements:

»Availability »Accessibility (physical, economic & information)»Acceptability »Quality

The Right to the Highest Attainable Standard of Health

•According to General Comment No. 14 of the UN Committee on ESCR, the right to health requires:

“the provision of a sufficient number of hospitals, clinics and other health-related facilities, and the promotion and support of the establishment of institutions providing counselling and mental health services, with due regard to equitable distribution throughout the country”

•“health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalised sections of the population, in law and in fact, without discrimination”

The Right to the Highest Attainable Standard of Health

•According to General Comment No. 14 of the UN Committee on ESCR, the right to health requires more than health services:

“the reference in article 12.1 of the Covenant to "the highest attainable standard of physical and mental health" is not confined to the right to health care. On the contrary, the drafting history and the express wording of article 12.2 acknowledge that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.”

The Right to the Highest Attainable Standard of Mental Health

The UN Principles for the Protection of Persons with Mental Illness (1991) provide:

•“All persons have the right to the best available mental health care, which shall be part of the health and social care system.” (Principle 1)

• “All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.” (Principle 1)

•“Every patient shall have the right to receive such health and social care as is appropriate to his or her health needs, and is entitled to care and treatment in accordance with the same standards as other ill persons.” (Principle 8)

The Right to the Highest Attainable Standard of Mental Health

“International non-governmental organisations help in the exchange of experiences and function as pressure groups, while non-governmental organizations in countries are responsible for many of the innovative programmes and solutions at the local level.

They often play an extremely important role in the absence of a formal or well-functioning mental health system, filling the gap between community needs and

available community services and strategies”

World Health OrganisationMental Health Policy and Service Guidance Package

The Right to the Highest Attainable Standard of Mental Health

PHOTO: Irish actor, Mick Lally, at Simon/AI public event 2003

“Voluntary agencies, to which local authorities are statutorily empowered to devolve their housing duty, provide much of the available emergency homeless accommodation. This is often accompanied by insufficient government financial assistance …. the burden of sheltering homeless people with significant mental health problems, rests substantially with voluntary agencies and is exacerbated by the failure of the mental health services to provide supported accommodation through the mental health system.”

Amnesty International’s Irish SectionMental Illness: The Neglected Quarter –

Homelessness (2003)

Economic, Social and Cultural Rights

Article 2(1) of the ICESCR states:

“Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

General Comment No. 3 of the UN Committee on ESC Rights on the nature of States parties obligations provides some guidance as to how to interpret these legal obligations.

Legal Obligations: “TLegal Obligations: “To o TTake ake SStepsteps””

While the full realization of the relevant rights [under the Covenant] may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force for the States concerned.

Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.

Legal Obligations: “MLegal Obligations: “Maximum of its aximum of its AAvailable vailable RResourcesesources””

In it’s General Comment No. 3 the Committee on ESC Rights noted that the phrase “to the maximum of its available resources” was intended to refer to both the resources existing within a State and those available from the international community through international cooperation and assistance.

The Committee also emphasized that in accordance with Articles 55 and 56 of the United Nations’ Charter, with well-established principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard.

Legal Obligations: “ALegal Obligations: “Achieving chieving PProgressivelyrogressively””

The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time.

Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content.

The phrase must be read in the light of the overall objective, indeed the raison d'être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal.

Legal Obligations: “By ALegal Obligations: “By All ll AAppropriate ppropriate MMeanseans””

The Committee recognizes that in many instances legislation is highly desirable and in some cases may even be indispensable.

Among the measures which might be considered appropriate, in addition to legislation, is the provision of judicial remedies with respect to rights which may … be considered justiciable. The Committee noted, for example, that the enjoyment of the rights recognized, without discrimination, will often be appropriately promoted, in part, through the provision of judicial or other effective remedies.

Other measures which may also be considered “appropriate” for the purposes of Article 2 (1) include, but are not limited to, administrative, financial, educational and social measures.

Health is a human rights issue!

Good physical and mental health is firmly linked to respect for human rights. Human rights are interdependent in nature – each must be respected. Failure to respect the full range of a person’s rights, such as to housing or an adequate standard of living, impacts on his/her physical and mental health.

Health services must be provided and applied in a manner compatible with international law. The planning and delivery of health and related services must take place in accordance with human rights standards, and there must be progressive achievement of the right to health.

Service providers must comply with human rights standards. States must also exercise due diligence to prevent human rights violations by ensuring that monitoring and accountability mechanisms are in place to ensure that service providers do.

Health is a human rights issue!

“The concept of human rights gives people power to deal with their governments. What are considered societal “problems” (or simply the way things are), become “violations” in the human rights framework.”

Human Rights FAQ, AMSA Global Health Action Committee

“It is my aspiration that health will finally be seen not as a blessing to be wished for, but as a human right to be fought for.”

Kofi Annan, UN Secretary General

Voluntary agencies are human rights defenders

You, as a service provider, are a defender of and an advocate for human rights.

When individuals cannot exercise what they understand and believe to be their right, activists can encourage and help them to claim the right through judicial and administrative channels or, where an established mechanism does not exist, by other means such as public demonstrations. 

A human rights based approach involves not charity or simple economic development, but a process of enabling and empowering those not enjoying their ESC rights to claim their rights. 

The process of staking a claim not only asserts an individual’s ownership of his or her entitlement.  It also helps define the right and raises awareness that what has been claimed is not a privilege or an aspiration, but a right.

Voluntary agencies are also duty-holders

“Across Europe the provision of homeless services is delivered by three spheres - the state, the church and the voluntary sector (NGO sector). Although the balance of provision varies there is evidence, in almost all countries, of a shift towards an

increasing role for (more recently established) NGO agencies.

The changing role of the state is sometimes encapsulated in the term ‘hollowing out’ (Jessop, 1994). This involves the divesting of state responsibilities … and the

dispersion ‘outwards’ to non-state agencies such as NGOs and the voluntary sector, as well as to private, for-profit enterprises.”

Service Provision For Homeless People In Europe: Organisational Factors Affecting the Delivery of Services for Homeless People

European Observatory on Homelessness (2004)

Amnesty Ireland’s Human Rights Based Approach Initiative

5 Core Principles:

1. Explicitly using and respecting human rights framework

2. Empowerment (e.g. accessibility of information and education about rights and health, especially for marginalised groups and children)

3. Participation (e.g. consultation with service users)

4. Non-discrimination & prioritisation of vulnerable groups (e.g. people with disabilities, the Deaf community, older people, lesbian, gay and bisexual people, people in minority ethnic groups, migrants, asylum seekers, refugees and prisoners)

5. Accountability (e.g. availability of legal remedies for breaches, accountability for expenditure and planning choices)

Amnesty Health Professional Network

The Amnesty International Health Professional Network exists to work for the goals of AI through the application of communications skills, professional knowledge, contacts and lobbying skills.

Health professionals take part in many AI actions and campaigns.

Its work is serviced and coordinated by the Health and Human Rights Team within the organisation's International Secretariat, which issues issues regular action appeals on individual cases or country-specific issues.

See web.amnesty.org/pages/health-index-eng, or contact your national AI office to find out whether there is a health professional group in your country. You can also send an e-mail to health@amnesty.org

Why have a health professional network?

Many aspects of human rights abuses are of direct relevance to health care staff.

The right to the highest standard of health is denied millions of people around the world.

Numerous other forms of human rights abuse have an impact on health and are relevant to doctors, nurses and other health professionals. AI seeks to mobilise the skills and commitment of the health sector to bring an end to human rights violations.

Health professionals, particularly physicians, are involved in administering the death penalty in some countries while in others they supervise punitive mutilation and corporal punishment.

Health professionals are themselves not immune to violations of their human rights.

Amnesty standards for health professionals

The following Amnesty International Declarations and Programs have been formulated by the organisation in the light of its experience in monitoring human rights violations since 1961:

Declaration on Health Professionals and the Death Penalty (1988)Declaration of Stockholm (1977)London Declaration (1995)12-point Program for the Prevention of Torture by Agents of the State (2000)14-point Program for the Prevention of "Disappearances" (1992)14-point Program for the Prevention of Extrajudicial Executions (1992)Stockholm Plan of Action against Torture (1996)

Other standards for health professionals

Declaration Concerning Support for Medical Doctors (WMA) Declaration on Human Rights (WMA) Declaration of Malta (WMA) Declaration of Tokyo (WMA) International Code of Medical Ethics (WMA) Licensing of Physicians Fleeing from Criminal Offences (WMA) Oath of Athens for Prison Physicians (ICPMS) Principles of Medical Ethics (UN) Regulations in Time of Armed Conflict (WMA) Resolution on Physician Participation in Capital Punishment (WMA) Resolution on Violence Against Women (FIGO) Statement on Body Searches of Prisoners (WMA) Statement on Condemnation of Female Genital Mutilation (WMA)

“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm or office where heworks...”

Eleanor Roosevelt, 1958 

So again, what are Human Rights?

Eleanor Roosevelt holding a copy of the Universal Declaration of Human Rights, drafted and approved by the UN Human Rights Commission under her chairmanship.

© UN Photo