Queensland's new Human Rights Act and the right to access health services

Inclusion of the right to health in Queensland's Human Rights Act is historic but not without challenge

In February 2019, the Queensland Parliament passed the Human Rights Act 2019, which took effect on 1 January 2020. Its introduction makes Queensland the third Australian jurisdiction to implement human rights legislation, after the Australian Capital Territory and Victoria in 2004 and 2006, respectively. While the Queensland Act is based on a model of rights legislation broadly consistent with the Victorian and ACT models, it differs in its inclusion of the right to health services (section 37):

1. Every person has the right to access health services without discrimination.
2. A person must not be refused emergency medical treatment that is immediately necessary to save the person's life or to prevent serious impairment to the person.1

The inclusion of section 37 is historic. The right to health is made subject to law on Australian shores and a state/territory government is finally accountable, by law, to protect and promote the enjoyment of the highest attainable standard of physical and mental health. Rights language is part of Australia's public health vernacular, evidenced by the Australian Charter of Healthcare Rights.2 However, unless such rights are expressed in domestic law, then right to health principles and policies are important words on paper without overt legal consequence for effective monitoring and accountability.3,4

As Australia lacks a legal tradition regarding the right to health, the introduction of section 37 creates interpretive challenges for the new Queensland Human Rights Commission (QHRC). The right to health has received limited robust attention in both Australian schools of public health and law, as well as in Australian public health‐related literature.5 The QHRC, and Queensland's courts and tribunals, will likely look to United Nations (UN) commentary on the right to health, and to overseas jurisprudence and scholarship for guidance on section 37's emergent framing.3,6 With the right to health found in over 100 national constitutions and the UN Special Rapporteur on the right to health issuing annual reports, guidance is available.7,8

Health service obligations and remedies under the new Act

Queensland government departments and public employees will have a responsibility to protect and promote the human rights of Queensland individuals, and in their health service delivery and decision making, act in a way consistent with their obligations under the Act.1 Health agencies that fit the Act's “public entity” criteria are also bound to comply with the Act. If an individual alleges a section 37 violation, they should make a complaint to the government agency or public entity, which must respond within 45 business days.1,6 If an inadequate or no response is received, the individual — or two or more people jointly — can lodge a complaint with the QHRC.1

Given that the Act's regulatory model favours discussion, rights awareness raising and education, the QHRC will aim to pragmatically resolve section 37 disputes. Monetary damages will not be available.6 In the case of judicial review, a person might have the original decision quashed or referred back to the original decision maker for redetermination.6 In certain circumstances, pending legal advice, a section 37 complainant might have grounds to pursue a distinctly separate medical negligence cause of action if a health professional or service provider breaches their common law duty of care and the complainant has sustained pain and suffering, loss or injury.9

Some grievances against health service providers (notably private providers) can continue to be dealt with by the Health Ombudsman under Queensland's Health Ombudsman Act 2013, and the QHRC may indeed refer complaints to the Health Ombudsman (with the complainant's consent).1,10 However, potential complainants under either Act should be aware the objectives of both Acts markedly differ. The Health Ombudsman Act emphasises that the health and safety of the public are paramount, thereby framing health through a health security lens at the population level, whereas the Human Rights Act takes an individual level approach: the enjoyment of the highest attainable standard of physical and mental health of each and every person in Queensland is paramount (Box 1). Additionally, the Health Ombudsman Act does not recognise the special importance that human rights — and by extension, health and human rights and accessible, non‐discriminatory health service provision — has for Queensland's Aboriginal peoples and Torres Strait Islander peoples.1 On this point, there is no reason why the definition of health services in section 37(1) could not be interpreted to integrate a culturally responsive meaning for Queensland's Indigenous peoples, consistent with the UN Declaration on the Rights of Indigenous Peoples (Box 2).11

Interpreting section 37 and health rights protections found elsewhere in the Act

The Act takes a narrow approach to interpreting the right to health

Section 37 is modelled on the right to health in article 12 of the International Covenant on Economic, Social and Cultural Rights.12 The UN Committee responsible for the Covenant stated in General Comment No. 14 that article 12 contains two elements: the right to access health services; and the right to access the underlying determinants of health, or the underlying factors that promote conditions in which people can lead a healthy life.3

Regarding the first element of what accessible, non‐discriminatory health services might look like for section 37 achievement, General Comment No. 14 provides the QHRC with instruction (Supporting Information).3

The Queensland Parliament has clarified it will only adopt the first element of article 12 of the International Covenant, which protects right to health service access; section 37 will not extend to include Queenslanders’ right to the broader health determinants. By limiting section 37 to questions of access to emergency medical treatment and non‐discriminatory health service provision, Parliament cautiously chose not to conflate the parameters of section 37. For some right to health academic specialists, this measured approach is prudent.13

Although section 37 claims are not to incorporate the determinants of health, complainants may nevertheless lodge separate or concurrent claims that capture certain health determinants, such as the right to culture (sections 27 and 28). Public health practitioners are well aware that culture is a significant health determinant.14 Housing is also a major determinant of health, and a housing rights claim (that causally impacts a claimant's health and wellbeing) might be realised under section 24 (property rights).

Claims that seek to protect and promote the rights of individuals and communities to access the determinants of health relating to food and water could be sought under the right to life (section 16). This is because, per the explanatory notes to the Human Rights Bill 2018 (Qld), this right reflects the positive obligation on states “to take positive steps to protect the lives of individuals through, for example … positive measures to address other threats to life such as malnutrition and infant mortality” (emphasis added).6 With this in mind, section 16 allegations that identify a compelling food or water security nexus that threatens the right to life could be made. However, the QHRC can refuse to deal with a complaint it considers “frivolous, trivial, vexatious, misconceived or lacking in substance”.1

The protection of other health rights elsewhere in the new Act

As highlighted above, the content of section 37 claims will likely raise other rights contraventions. It is foreseeable, for example, that a section 25 right to privacy breach by a health service provider could directly or indirectly create a section 37 access to health service violation (and vice versa). Further, a section 37 contravention, or its ramifications, may be so egregious that the complainant could rationally argue that they have experienced a breach of their section 17(b) right not to be treated in a cruel, inhuman or degrading way by the health service. Section 17(c) also protects and promotes an individual's health and human right to “not be … subjected to medical or scientific experimentation or treatment without the person's full, free and informed consent”.1 Certainly, in some cases, a fine line will arise between informed consent to medical treatment and health service access under section 37.

The Act also covers reproductive health and rights. Section 106 clarifies that the Act “does not affect laws about termination of pregnancy”, thereby referring to and upholding the Termination of Pregnancy Act 2018 (Qld). According to Queensland Health, that Act “ensures termination of pregnancy is treated as a health issue rather than a criminal issue” and “supports a woman's right to health, including reproductive health and autonomy”.15

Final comments

Queensland Health already has antidiscrimination policies and protocols for its staff and for its patients and clients. Therefore, compliance with section 37 and the Act's wider provisions should not be onerous for government and many other public health service agencies bound by the new Act. However, if international right to health experience can teach Queensland anything, it is that government response to allegations of section 37 violations should not be reactive and visible at QHRC conciliation meetings alone.4 Advancing the right to health for all Queenslanders will not occur in legal silos but in complement with planned educational and promotional activities that help build a culture in the Queensland public sector and broader community that respects and promotes health and human rights, as well as promotes a dialogue about the nature, meaning and scope of health rights for Queensland's most important asset, its human capital.1,6 This will require the engagement of both government and non‐government stakeholders, as well as community members, beyond the health sector.