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

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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.

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^[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 –
2^nd 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/