6.4.4. Medical or scientific experimentation or treatment
- Category: Covid Human Rights
- Created: Tuesday, 10 May 2016 13:21
- Written by Judicial College of Victoria
6.4.4. Medical or scientific experimentation or treatment - Scope of the right
- Section 10(c) prohibits ‘medical or scientific experimentation or treatment’ of a person without their ‘full, free and informed consent’.
- Article 7 of the ICCPR requires that a person must not be subjected to medical or scientific experimentation ‘without his free consent’. The European Convention on Human Rights contains no equivalent of s 10(c).
- Section 10(c) goes further than the ICCPR and prohibits treatment without consent as well as experimentation. Although the prohibition against medical treatment without consent is not explicit in the ICCPR, or in the European Convention on Human Rights, it has been considered under the rights relating to inhuman or degrading treatment, liberty and security (Kracke v Mental Health Review Board (2009) 29 VAR 1;  VCAT 646 ). The ACT and New Zealand human rights legislation, like the Charter, explicitly prohibit medical treatment without consent.
- The meaning of the word ‘treatment’ is broad, see 6.4.3. Cruel, inhuman or degrading treatment or punishment.
- Imposing a condition of bail requiring the accused to obtain medical treatment potentially engages this right (Woods v DPP (2014) 238 A Crim R 84;  VSC 1 , –).
- A ‘Smoke Free Policy’ implemented by a hospital, and applying to its involuntary patients so that they were effectively forced to reduce or end their consumption of cigarettes, did not engage s 10(c) as it was not a ‘medical procedure based on medical knowledge’. Generally ‘policies introduced for the purpose of improving the health of a group of persons would not fall within the definition of a "medical procedure"’. In comparison, medical treatment would ordinarily include some positive intervention under the supervision of a medical practitioner (De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647;  VSC 111 -).
- Section 10(c) goes further than requiring consent to be ‘free’. Instead, it requires consent to be ‘full, free and informed’. The ‘full, free and informed’ requirement reflects the Victorian law on consent in the medical context, as contained in s 5(1) of the Medical Treatment Act 1988 (Kracke v Mental Health Review Board (2009) 29 VAR 1;  VCAT 646 ; Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 11). Under that section, treatment may be refused if the following conditions, among others, are satisfied:
(b) that the patient's decision is made voluntarily and without inducement or compulsion; and
(c) that the patient has been informed about the nature of his or her condition to an extent which is reasonably sufficient to enable the patient to make a decision about whether or not to refuse medical treatment generally or of a particular kind (as the case requires) for that condition and that the patient has appeared to understand that information; and
(d) that the patient is of sound mind and has attained the age of 18 years
- The United Nations Human Rights Committee has stated that people who may not be capable of giving valid consent, such as those in detention or otherwise vulnerable, should not be subjected to any medical or scientific experimentation that may be harmful to their health (United Nations Human Rights Committee, General Comment No. 20, Article 7, Forty-fourth session (30 September 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1 at 30 (1994), ).
Cruel, inhuman or degrading treatment?
- In the international jurisprudence, extreme treatments of mentally ill patients may amount to cruel, inhuman and degrading treatment and therefore breach s 10(b) of the Charter as well as s 10(c).
- This might be the case where the treatment in question reaches the minimal level of severity to engage s 10(b), the cruel, inhuman or degrading treatment aspect of the right, and is not medically necessary and in conformity to accepted standards of medical science (Herczegfalvy v Austria (1993) 15 EHRR 437; see also Kracke v Mental Health Review Board (2009) 29 VAR 1;  VCAT 646 –).
- On the other hand, for example, force feeding a mentally ill prisoner who strongly resisted, but who was in danger of dying of starvation, did not amount to cruel, inhuman or degrading treatment under article 3 of the European Convention on Human Rights (Ciorap v Moldova  ECHR 502, Application No. 12066/02; see also Kracke v Mental Health Review Board (2009) 29 VAR 1;  VCAT 646 –).
Reasonable and justified limits under s 7(2)
- Victorian law provides for medical treatment without consent in situations where:
- Consent is provided by another person, such as a doctor or a parent or guardian, in an emergency or where a person is incapable of giving consent;
- The procedure is permitted without consent under Divisions 3 – 6 of Part 4A of the Guardianship and Administration Act 1986; or
- Treatment is given on an involuntary basis under the Mental Health Act 2014.
- The Charter does not have any effect on the validity of these laws, should they be incompatible with Charter rights (s 32(3)). However, these limits on s 10(c) may be reasonable and justified under s 7(2) (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 11).
- For example, the limits on the prohibition against medical treatment without consent imposed by involuntary treatment orders and community treatment orders under the Mental Health Act 1986may be reasonable and justified under s 7(2), as long as there is compliance with the safeguards in the Act.1 These safeguards include strict criteria for the imposition of such orders, inherent requirements of proportionality of treatment in relation to medical need, and a number of appeal and review processes (see, eg, Kracke v Mental Health Review Board (2009) 29 VAR 1;  VCAT 646 , –; MH10 v Mental Health Review Board  VCAT 1919 –).
- Similarly, the limitation of s 10(c) imposed by the appointment of a guardian of a person with a disability under s 22 the Guardianship and Administration Act 1986, or the making of a Supervised Treatment Order in respect of a person with an intellectual disability under s 193 the Disability Act 2006, may be justified under s 7(2) (RB  VCAT 532 ; AC  VCAT 1186 , ; see also Re Beth (2013) 42 VR 124;  VSC 189 ).
- The Guardianship and Administration Act 1986 also sets out a detailed process to be followed when carrying out a medical research procedure on a person with a disability who is incapable of giving consent. Among other safeguards, the Act requires the best interests of the patient to be taken into account (see Division 6 ‘Medical research procedures’). As with other statutory limitations on the s 10(c) right, the inclusion of a number of safeguards in the legislation may assist in justifying the limitation on the right.
Last updated: 10 May 2016
1 Replaced by the Mental Health Act 2014. It contains a range of safeguards, checks and balances, which may appropriately balance the Charter rights of mentally ill people with the necessity of medical treatment, but this has not yet been tested by the courts.
Source : https://www.judicialcollege.vic.edu.au/eManuals/CHRBB/57330.htm