Puede haber conflictos cuando se trata de determinar cómo se distribuyen estos elementos, ya que diferentes grupos pueden tener
intereses y
necesidades divergentes. 22.9.2022: Welfare duties and balancing rights in conflict
● Distributive issues vs balancing different rights in conflict Equilibrio de diferentes derechos: Este concepto se refiere a la
● Human rights conflicts in the area of welfare services necesidad de encontrar un punto de armonía entre diversos
○ Health protection, education, employment derechos que pueden entrar en conflicto. Por ejemplo, equilibrar el
derecho a la libertad de expresión con el derecho a la privacidad.
○ What kind of conflicts?
■ Autonomy/privacy/liberty vs state responsibility for protection of life, health and social goals
● Different types of conflicts
● Dignity as a balancing factor in conflicts related to the same person
● Case law
Balancing of rights
● Different human rights in conflict
○ The rights in question cannot be (completely) realized at the same time
○ They must be balanced against each other, and there is a need to decide which right to give priority in
a particular situation
Distributive issues
● How to fulfill socioeconomic human rights in the context of scarce resources?
○ Reasonableness; are state efforts reasonable in light of pressing social needs?
○ Prioritization; do states prioritize, are the priorities acceptable, and are these followed in practice?
○ Democratic dialogue to identify pressing needs
The welfare state and the protection of both civil and social rights
● The welfare state
○ Advancement of social goals/public interests
■ Public health, educated population, work attendance, social participation
○ Protection of civil human rights
■ Privacy, autonomy, liberty
■ Question: When does a social goal justify restrictions of individual autonomy, liberty or privacy?
The right to privacy
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime, for the protectionof health or morals,
or for the protection of the rights and freedomsof others.
Public interests
● School attendance
● Health protection
● Research
● Employment
● Child protection
Los intereses privados se centran en las necesidades y deseos individuales o de grupos específicos, mientras que los intereses
públicos buscan el bienestar general de la sociedad en su conjunto. con la protección de la salud, el empleo o la participación
en investigaciones, individuos pueden resistirse debido a sus elecciones personales y condiciones específicas. Pueden percibir
Private interests
que sus intereses privados, como la libertad individual o la autonomía, entran en conflicto con lo que se percibe como un
beneficio público general, por ejemplo las mascarillas y el derecho a no llevarlas.
● Education, health, employment, benefit from science …
○ Public interests are also private interests (in general), not always a clear distinction
● Why, and how, can there be a conflict between private and public interests?
○ Individuals may resist health protection, employment, participation in research ... in particular situations
due to individual choice and conditions
Healthcare and informed consent
● Requirement of informed consent to treatment is an aspect of the right to privacy (see lecture 8/9)
● The underlying value of self-determination (autonomy)
● Can public interests justify health interventions not based on informed consent from the individual person?
Jehova ś Witnesses of Moscow v Russia (2010)
● “The freedom to accept or refuse specific medical treatment, or to select an alternative form of treatment, is vital to
the principles of self-determination and personal autonomy. A competent adult patient is free to decide, for
instance, whether or not to undergo surgery or treatment or, by the same token, to have a blood transfusion.
However, for this freedom to be meaningful, patients must have the right to make choices that accord with
their own views and values, regardless of how irrational, unwise or imprudent such choices may appear to
others. Many established jurisdictions have examined the cases of Jehovah's Witnesses who had refused a blood
transfusion and found that, although the public interest in preserving the life or health of a patient was
undoubtedly legitimate and very strong, it had to yield to the patient's stronger interest in directing the course
of his or her own life ...” (para. 136). tuvo que ceder
Human dignity, autonomy and public interests
● Human dignity: Basic respect and concern for the needs of every individual
● Protecting autonomy is an important way of protecting human dignity
○ informed consent to healthcare
● Is respect for individual autonomy always sufficient to protect human dignity?
● Is respect for individual autonomy always sufficient for the protection of public interests?
Absolute vs non-absolute rights, ECHR
● Absolute rights
○ Right to life (Art 2)
○ Prohibition of torture (Art 3)
○ Prohibition of slavery and forced labour (Art 4)
Strong state interests in protecting these values and rights for everyone
● Rights that explicitly allow balancing of interests
○ Articles 5, 8-11: Autonomy restrictions allowed, but must be a) prescribed by law, b) necessary in a
democratic society, and c) aimed at achieving important social interests
■ economic well-being of the country, protection of health or morals, protection of the rights and freedoms of
others (Art.8)
Different types of conflicts
● Potential conflict between an individual and other concrete individuals, or the state (a public interest)
● Potential conflict between rights belonging to the same person (which right is most suitable to protect the
person ś dignity?)
Human rights conflicts (same person)
● Other people ś rights are not inflicted
● Public interest does not give clear guidance
○ Question: which of the conflicting rights provides the best protection of human dignity in the
particular situation?
○ Is the overall well-being/interests of the person better served by over-ruling or by respecting autonomy?
Human rights
● ”... derive from the inherent dignity of the human person”
● Autonomy, privacy and liberty should be protected only as long as it protects the dignity of the person concerned
● Preambles, ICCPR, ICESCR
Example of dilemma
● Person with serious dementia in clear need of ordinary healthcare/medication (not invasive) has no
understanding of the situation
○ If ”yes” to treatment is respected:
■ Invalid consent: Autonomy cannot be protected
○ If ”no” is respected: The person may die or suffer from continued health problems
■ Violation of the right to life or health
○ Which action is needed to protect the person ś dignity?
Vulnerable groups
● Children
● Adults without capacity to consent due to various forms of cognitive impairment
● Persons with serious mental illness
● Lack of capacity to protect their own interests
○ Special legal protection needed
■ Proxy consent
■ Legal procedures to establish protective measures, if needed
Two cases from Norway (home care)
● Josefine
○ Not competent, had accepted to be moved to a nursing home to get necessary care (assisted by relatives)
○ Froze to death outside her home (was alone, got out by herself)
● Gunhild
○ Competent, rejected all kind of home-based care, wanted most of all to be left alone
○ Died in her own bed, surrounded by garbage
Coercive treatment of adults lacking consent capacity: Norwegian law
● Traditionally: Only allowed in emergency situations
● Chapter 4A in the Norwegian Patient- and User ́s Rights Act allows coercive treatment outside the emergency
situation of persons over 16 years without consent capacity (due to various forms of cognitive impairment)
● Example of balancing health protection and autonomy
● Objective
○ Provide necessary health care for the prevention of significant health damage
○ Prevent and limit arbitrary and unlawful coercion
○ Base interventions on law (rule of law principle)
Regulation of coercion
● Special regulation in the Norwegian Patient Rights Act (4A)
○ Provides the legal basis - cf ECHR art 8.2 - for the use of coercive health care outside emergency
situations towards adults who lack the capacity to consent, and who rejects necessary treatment
Background
● Documentation of widespread use of coercive measures, especially towards elderly persons with dementia in
institutions
○ Most common measures:
■ Hiding of medicine in food or drinks
■ Forced holding of hands, feet or head during care
■ Bed guard
■ Forced washing, bathing or showering
Legal requirements in Patient Rights Act (§ 4A-3)
● Only health care personnel may use coercive measures (detention in health institutions, alarm systems, belts,
etc.)
● Health care shall be based on respect for physical and psychological integrity of the patient
● Be in accordance with individual autonomy as far as possible
● Voluntary alternatives must be tried first
● Only when necessary for preventing serious health damage
● Must be clearly the best solution for the patient
● Constant monitoring
● Stopped once the legal requirements are no longer fulfilled
HL v UK (2004)
● ”The right to liberty is too important in a democratic society for a person to lose the benefit of Convention
protection for the single reason that he may have given himself up to be taken into detention ... especially
when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the
proposed action”.
● A mere lack of protest or ”consent” from an incompetent person is not a sufficient legal bases for keeping a
person under continued confinement
● The case illustrates the difficulty of balancing the need to be taken care of and the right to individual
freedom
● The case illustrates the need to be protected by appropriate procedures under national law
● The Court stated that, in relation to ECHR art 5 (the right to liberty and security), national law lacked
appropriate legal regulation for the intervention in question (”informal detention” for 3 months in a
psychiatric institution).
● Rule of law
Rule of law principle ICCPR, Article 9.1
● ”Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and in accordance with such
procedures as are established by law.”
● Any detention for medical purposes must be in accordance with national law (rule of law principle) and
justified by strong individual or social needs
Individual autonomy in conflict with public interests
● Public health and research
● Education
● Employment
● Child protection
Protection of individual interests in medical research
● ”The interests and welfare of the human being shall prevail over the sole interest of society or science”
○ Biomedicine Convention Article 2: Provisions of legal protection for vulnerable groups not able to give
valid informed consent to research or treatmen
Olsson v Sweden (1988)
● In order for an intervention in private life to fulfill the requirement of necessity, the interference must
”correspond to a pressing social need, and, in particular that it is proportionate to the legitimate aim pursued”
○ Child protection measures beyond what was seen as necessary for the protection of the child (placing
the child far away from the biological parents, thereby hindering return to the biological family)
○ (Private/public interests not easy to distinguish)
Child protection in Norway
• Fair balance of public interests in protecting children from harm vs the rights of parents and children to family
life?
– ECtHR: several cases stating that the balancing has not been fair/proportionate, and that the right to
privacy- and family life has been violated
– New cases last week: DR et al vs Norway, KF et al vs Norway, SS and JH vs Norway
• Coercive adoptions after taking over care
• Lack of time together (child and biological parents) after taking over care
Mandatory elementary education
● Primary education shall be compulsory and available free to all (ICESCR, Art 13.2)
○ A clear example of setting individual autonomy aside, justified by social objectives
Quality of education vs autonomy
● A decision to suspend a teaching assistant for refusing an instruction not to wear her veil when in class was
not seen as discrimination
● The suspension was considered lawful, being proportionate in support of a legitimate aim (teaching: Facial
expressions seen as essential to effective teaching)
Employment Appeal Tribunal in London (2005/2006)
Social policies and«the work line»
● Strong principle in welfare policies
● Measures to encourage and force individuals to participate in work promoting activities, to make them more
attractive for the job market
○ Courses, practice, training, meetings with consultants, etc, which may take up much time for individuals
who have to attend to the conditions set by local authorities to receive social assistance
○ How far is it legitimate, necessary and proportionate to limit individual choice/privacy for the purpose
of securing employment? (“the economic well-being of the country”, cf ECHR Article 8.2) Not yet
decided by the ECtHR
EU Charter of Fundamental Rights and European Social Charter
● Both the EU Charter and the ESC put forward a principle of proportionality in relation to protection of
socioeconomic human rights, in similar wording as in the ECHR
● The EU Charter Article 52 (1) states that “[a]ny limitation on the exercise of the rights and freedoms recognised
by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the
principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives
of general interest recognised by the Union or the need to protect the rights and freedoms of others.”
● The ESC Article G (1) puts forward that “[t]he rights and principles set forth [...] shall not be subject to any
restrictions or limitations not specified [...] except such as are prescribed by law and are necessary in a
democratic society for the protection of the rights and freedoms of others or for the protection of public interest,
national security, public health, or morals.”
Norwegian law on conditions for social benefits.
● Social service Act § [Link] of conditions (conditional economic benefits)
● The social service may set conditions (“vilkår”), including “suitable work” for granting economic assistance,
seen as gainful for work promotion purposes. Failure of participating can lead to removal of financial support
● As for persons below 30: The social service shall set such conditions, if weighty reasons are not against it
● Conditions must be in accordance with law, and fulfill requirements of proportionality and reasonableness
● If conditions are violated, the financial support may be reduced, if the person concerned has been informed
about this possibility
Z v Finland (1997)
● «The Court will take into account that the protection of personal data, not least medical data, is of
fundamental importance to a person's enjoyment of his or her right to respect for private and family life
as guaranteed by Article 8 of the Convention (art. 8). Respecting the confidentiality of health data is a vital
principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect
the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and
in the health services in general. Without such protection, those in need of medical assistance may be deterred
from revealing such information of a personal and intimate nature as may be necessary in order to receive
appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in
the case of transmissible diseases, that of the community” (para. 95).
● “The above considerations are especially valid as regards protection of the confidentiality of information about
a person’s HIV infection. The disclosure of such data may dramatically affect his or her private and family
life, as well as social and employment situation ... For this reason it may also discourage persons from
seeking diagnosis or treatment and thus undermine any preventive efforts by the community to contain the
pandemic …
● ... At the same time, the Court accepts that the interests of a patient and the community as a whole in protecting
the confidentiality of medical data may be outweighed by the interest in investigation and prosecution of
crime and in the publicity of court proceedings ... As to the issues regarding access by the public to personal
data, the Court recognises that a margin of appreciation should be left to the competent national authorities in
striking a fair balance between the interest of publicity of court proceedings, on the one hand, and the
interests of a party or a third person in maintaining the confidentiality of such data, on the other hand.
The scope of this margin will depend on such factors as the nature and seriousness of the interests at stake and
the gravity of the interference”.
● (paras. 96,97, 99).
● “The Court thus reaches the conclusions that there has been no violation of Article 8 of the Convention (art. 8)
(1) with respect to the orders requiring the applicant’s medical advisers to give evidence or (2) with regard
to the seizure of her medical records and their inclusion in the investigation file.
● On the other hand, it finds (3) that making the medical data concerned accessible to the public as early as 2002
would, if implemented, give rise to a violation of that Article (art. 8) and (4) that there has been a violation
thereof (art. 8) with regard to the publication of the applicant’s identity and medical condition in the Court
of Appeal’s judgment” (para. 114).
Enhorn v Sweden (2005)
● Detention of a person infected by HIV to prevent him from spreading the virus
○ Was the detention a violation of Art 5.1 ECHR (right to liberty)?
● Did the HIV-infection represent a criminal offense?
○ “It is true that the applicant infected the 19-year-old man with whom he had first had sexual contact in
1990. This was discovered in 1994, when the applicant himself became aware of his infection. However,
there is no indication that the applicant transmitted the HIV virus to the young man as a result
of intent or gross neglect, which in many of the Contracting States, including Sweden, would have
been considered a criminal offense.”
○ Enhorn had, according to the Court, complied with the existing infection control regulations
● The proportionality test, and question of fair balance
○ “In these circumstances, the Court finds that the compulsory isolation of the applicant was not a last
resort in order to prevent him from spreading the HIV virus because less severe measures had not been
considered and found to be insufficient to safeguard the public interest. Moreover, the Court considers
that by extending over a period of almost seven years the order for the applicant's compulsory isolation,
with the result that he was placed involuntarily in a hospital for almost one and a half years in total, the
authorities failed to strike a fair balance between the need to ensure that the HIV virus did not
spread and the applicant's right to liberty” (para. 55).
● The Court found, accordingly, that there had been a violation of Article 5.1 of the Convention
Regulation of emergency situations (Norway)
● Health Personnel Act § 7
● Example of balancing health protection and autonomy
Health personnel Act 7
● Obligates health personnel to treat person in an emergency situation, despite the person ś active resistance,
except for a few specific situations
○ Blood refusals (Jehovas Witnesses) (Patient Rights Act § 4-9,1)
○ Dying persons (but not seriously ill) are provided a right to reject life prolonging treatment (Patient
Rights Act § 4-9,2)
Norwegian law and ECHR Art 8
● Is Norwegian law violating Art 8 (privacy)?
○ What about other groups than Jehovas witnesses who wishes to reject medical treatment?
○ What about seriously ill persons with a short time to live (but not «dying»?), should they not also be
able to reject treatment in an emergency situation?
○ Are the legal regulations necessary and proportionate? A fair balance between competing interests and
needs?
Olsson v Sweden (1988)
● In order for an intervention in private life to fulfill the requirement of necessity, the interference must
”correspond to a pressing social need, and, in particular that it is proportionate to the legitimate aim pursued”
○ Critical voices claim that these requirements are not fulfilled regarding the Health Personnel Act § 7
and the few exceptions
States ́ margin of appreciation
● Due to the subsidiary nature of international or regional bodies
○ National bodies are the primary responsible for upholding rights
● Depends on whether common standards within Europe have been developed or not
● Depends on the degree of interference with individual rights and freedoms (Uzun v Germany, 2010)
Summary
● State obligations of securing necessary and fair access to welfare services must be distinguished from the issue
of balancing conflicting rights in health- or welfare cases
● Health- and welfare services must protect human dignity and to this end protect human life, health, well-being
and development, autonomy and privacy
● Autonomy limitations in welfare service provision must be according to law, justified, necessary and
proportional
● Human rights provisions provide a normative framework for both the protection and balancing of conflicting
rights
● Critical assessment of regulations in place is important
