Introduction

An occurrence of abuse, whether it be sexual, physical, emotional and/or psychological, between medical practitioners has immediate individual and collective impact. Providing adequate avenues for redress, as well as safeguarding workplaces and employment for practitioners, should be a priority in any instance where abuse has, or could, occur. The framework of human rights has the potential to add value to this endeavour. Having existed in many forms throughout history, human rights has developed into the commonly understood doctrine it is today and now permeates global discourse, featuring prominently in international, regional, and domestic laws and institutions.

Using the term ‘instrument’ to refer to various treaties, conventions, agencies, and institutions that operate within this framework, this chapter will begin with an examination of the core human rights instruments, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. It is from these instruments that the specific rights which are arguably contravened in the instance of abuse between medical practitioners, such as the right to life, liberty and the security of person, freedom from torture and the right to physical and mental health, are articulated. The chapter will then consider particular international, regional, and domestic instruments stemming from these core instruments and the processes through which a rights violation can be alleged.

Perusing the strengths and weaknesses of the framework, it will be asserted that while there are limitations for what the human rights framework can offer an individual in terms of redress, the benefits on a collective measure are much greater. The human rights framework provides a common language, standards and processes that are understood globally. This allows for collective agitation on domestic, regional, and international levels which can result in real and substantial change such as through the implementation of standardised complaints procedures, unambiguous legislation, comparable penalties, and multilateral treaties. Utilising this framework in parallel with other redress schemes, such as legal criminal action, is therefore suggested to ensure the needs and desires of the individual survivor, as well as the needs of other practitioners and the wider society, are adequately addressed.

What Are Human Rights?

Systems of law throughout history have consistently featured, as stated by Geoffrey Robertson KC, ‘the notion that individuals, wherever in the world they live, possess a few basic powers which no political order can remove’. (Reference Robertson1) From the Code of Hammurabi to Magna Carta, religious texts to the Rights of Man, individuals have been afforded protection from the sovereign State, as well as their fellow citizens, concerning some areas of life. (Reference Robertson2) The right to a fair and public hearing is arguably replicated from clause 40 of Magna Carta, ‘to no man will we sell, to no man will we deny or delay justice or right’, (Reference Robertson3) while the right to private property can arguably be seen in the religious commandment ‘thou shalt not steal’. (Reference Robertson4)

The level of importance and respect granted to such rights has expanded over time. First formulated in the negative sense, that which an individual or the State was not permitted to do to another individual, the modern understanding of rights is often framed in the positive sense, that which the State must action in order to fulfil. (Reference Robertson3) So too, what is recognised as a right has developed, with subjects previously considered to be privileges achieving rights status. These changes and fluctuations are clearly demonstrated in the experience of the last fifty years or so, with international human rights law transitioning from abstraction to a fully fledged area of law and expertise in its own right. (5)

This evolution of human rights has been accompanied by the debate around the universality of human rights. Are there rights that are automatically claimed by all individuals, and which cannot be abrogated? Are there rights that transcend culture, society, religion, and political structure? Human rights have been regularly criticised as a Western imperialistic notion that disregards the lived experiences of most of the global community. (Reference Mende6; Reference Ahdanisa and Rothman7) Proponents of human rights cite the commonality found in generally abhorred behaviours, such as murder, piracy and slavery, to bolster the argument in favour of universality. (Reference Shestack8) This debate has prompted the creation of four schools of thought on the matter: the natural scholars (rights as given), the deliberative scholars (rights as agreed upon), the protest scholars (rights as fought for) and the discourse scholars (rights as talked about). (Reference Dembour9)

This debate aside, it is inescapable that the human rights discourse has infiltrated the international, regional, and domestic spheres. Language concerning rights, and the subsequent protections that must be enacted to safeguard them, are prominent features of organisations, legislation, and treaties. (Reference Madigan10) Whether or not individuals, institutions and/or States agree with the applicability, or even existence of certain rights, they are forced to engage with the notion. This forced engagement provides a unique opportunity for individuals to articulate their grievances using language that is widely understood and familiar. Such a position is useful when approaching an issue such as the topic of this book.

A final comment on human rights is necessary in the context of abuse between medical practitioners. While it is acknowledged that survivors of such abuse are diverse and include cis-gender males, the overwhelming majority of survivors identify as women, a reality that cannot be ignored and is reflected in the language and focus of many of the instruments canvassed in this chapter. This should not be interpreted to mean that other gender identities should not be afforded similar protection, nor that they escape the abuse that is the topic of this book; rather, such a derogation reinforces the fact that those who identify as women have historically been, and continue to be, targeted at a detrimentally higher proportion than other identities. Nevertheless, as the frameworks offered by human rights instruments are predicated on an idea of equality regardless of gender, the use of this lens can still positively impact the experience of all individuals. It is asserted, therefore, that the human rights framework has the potential to provide redress for any survivors of abuse.

Overarching Human Rights Instruments

Perhaps the most well-known international document concerning the articulation of a body of rights is the Universal Declaration of Human Rights (the Declaration; UDHR). (Reference Res11) Established by the United Nations General Assembly Resolution 217 A on 10 December 1948, (12) the Declaration names thirty rights as those which are declared to be universal, such as the right to security and liberty, the right to education, and the right to freedom of thought.

In 1966, the United Nations General Assembly further espoused the doctrine of human rights by adopting two treaties that complemented the Declaration: The International Covenant on Economic, Social and Cultural Rights (ICESCR) (15) and the International Covenant on Civil and Political Rights (ICCPR) (12; Reference Res13). While some rights appear in all three instruments, this simply further demonstrates the fundamental importance of these rights in all spheres of human engagement. Together, these three instruments are considered the ‘International Bill of Human Rights’, establishing human rights law globally, and resulting in an additional eighteen international human rights treaties (12; 15). Table 12.1 outlines the rights identified from the International Bill of Human Rights which are those arguably involved in the instance of abuse between medical practitioners.

It is important to comment on a few of the rights in Table 12.1. The right to privacy enshrined in these instruments includes the right to judicial protection against attacks on privacy. Article 7(b) of the ICESCR specifically notes the right to safe and healthy working conditions, while article 12 includes both physical and mental health. Finally, the right to life, liberty, and security in article 3 of the UDHR is much broader than article 9 of the ICCPR, which relegates this right to detention situations.

Other International Instruments

Stemming from the UDHR, ICCPR and ICESCR are specialised instruments, such as treaty bodies, UN agencies and international agreements, that are tasked with managing and monitoring, in a more specific and nuanced manner, particular rights. Membership or ascension to these instruments often requires States to submit regular reports and allow compliance monitoring, from which invaluable data and statistics are gained. This information then provides the foundation for the formulation and development of global policies and procedures to instigate change. The following are those considered to be most applicable concerning the topic of this chapter.

Evaluating the International Human Rights Enforcement Capability

How useful are these processes to address the issue of abuse between medical practitioners? It is evident from the discussion above that there are numerous avenues through which a complaint could proceed. What is also evident is that the complaint process is complicated, is guarded by barriers and gatekeepers, and often, is used as a last resort. In the situation of the ILO, the individual ability to complain is non-existent. The process is also lengthy, requiring a complainant to endure potentially years of uncertainty, and in the end, publicity, in order to assert their rights.

The remedies available may also not be desired by an individual complainant. Treaty body decisions are final and cannot be appealed; however, the decision only contains recommendations on how the State should rectify the breach and is not a directive. (32) Should a breach be found and no action be taken by the State, the treaty body has no enforcement recourse; rather the case is simply left open until the treaty body is content that satisfactory actions have been taken. (32) In a similar vein, the mandate holder of the Special Procedure mechanism can only offer views or recommendations and has no enforcement potential. (33)

The Human Rights Council’s strongest option is to recommend that the High Commissioner for Human Rights provide technical cooperation, capacity-building assistance or advisory services to the State concerned. (34) Under the ILO, article 33 permits a member State to impose sanctions if the recommendations required by the Commission of Inquiry are not fulfilled. Parties to the complaint under the ILO also have the ability to refer the matter to the International Court of Justice (ICJ), under article 29, the decision of which is final. (Reference Thomann35) The practical implementation of an ICJ decision, however, still falls to the State in question and is unenforceable by the ICJ itself. (Reference Kuc36)

Another limitation of the international enforcement of human rights is that the rights enshrined in these documents are broad. Interpretation must therefore be undertaken to apply the right to the situation of the complaint, an interpretation which may not be shared by the decision maker. In this same manner, an individual may have to rely on a combination of rights and may need to research extensively the purpose and intent of drafters in order to successfully lodge their complaint. In considering the complaint procedure, remedies and application, the limits of pursuing action under the international sphere of this framework become stark.

Regional Human Rights Instruments

Turning to the potential of utilising human rights through a regional instrument, options are readily available. Many regions have initiated human rights recourse options such as the African Court on Human and Peoples’ Rights (ACHPR), (37) the European Court of Human Rights (ECtHR), (38) and the Inter-American Court of Human Rights (IACtHR). (39) These instruments safeguard many of the same rights already enumerated in the instruments above (prohibition on discrimination, right to personal liberty, right to physical and mental health, etc.); however, they are also notably creations of their regional tendencies; the African Court, for example, has the right to self-determination from colonialism enshrined in article 20.

These regional instruments mirror many of the same benefits and challenges experienced by the international sphere. The rights are broadly articulated, the process is barred to individuals unless the mechanism has been permitted access by the nominated State (only eight States have allowed the ACHPR to receive complaints from non-governmental organisations [NGOs] and individuals), (40) and enforcement is reliant on State compliance (the ECtHR openly declaring that ‘the Court is not responsible for the execution of its judgement’). (41) The remedies available, however, are more appealing; both the IACtHR and the ECtHR can offer compensation to address the physical and, at times, moral harm inflicted on the individual. (42) The ECtHR also often orders that the declaration of a violation is a sufficient remedy. (42) The ACHPR can order compensation or reparations, and in situations of ‘extreme gravity and urgency’ is authorised to order provisional measures under article 27 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. (43) Such remedies are focused on the individual, rather than the vague and ambiguous requirement to ‘review’, as offered by the international sphere.

It is also through cases using such instruments that the interpretation of broad rights to suit the facts of a particular situation are exposed. At the ECtHR in the case of Buturugă v Romania, the Court upheld that cyberbullying is a breach of article 3 (prohibition on torture and inhuman or degrading treatment or punishment) and article 8 (right to respect for private and family life). (44) Though the core issue was domestic violence, this case holds potential precedential value. The situation could be deemed analogous, and therefore provide a blueprint of language, nomination of rights in breach and remedies, that could be utilised by a complainant in the instance of abuse between medical practitioners. With an immense case load (the ACHPR has finalised 172 cases since 2009), (45) these instruments may reveal a number of cases that can act as a guide to prospective complainants in regard to law interpretation, rulings and remedies. Having first needed to exhaust domestic options before turning to the regional instruments, (46; 47) however, it is to this sphere that attention must now be turned.

Domestic Human Rights Instruments

The possibilities offered by the human rights framework through domestic instruments are quite different to the options explored above. At once, human rights at this level can be both subtle and explicit. Protection and enforcement can be maintained through legislation, the criminal justice system, dedicated organisations, and NGOs, as well as through policies and standards instilled in individual employment sectors and workplaces. Noting that the abuse between medical practitioners often occurs in the workplace, the examples proffered below focus solely on this arena.

First and foremost, domestic legislation can be connected with the international treaty ratification process or may stand alone. As explained above, where a treaty is ratified, the State agrees to be bound by its contents. This offers two-pronged protection: first through the domestic law which has been authorised to protect that right and second through the complaint mechanism of the international treaty. Domestic legislation concerning rights may appear as constitutional enshrinement, such as the Bill of Rights in the United States, (48) or through specific rights legislation, such as in New Zealand. (49) It may also appear through employment legislation, such as the federal Fair Work Act 2009 in Australia, or through work, health and safety legislation. Enforcement of legislated rights occurs through the judicial system, with the apex court of the State being the final arbiter. As chapter 11 is exploring the legal avenues available, it is not necessary to explore that particular route here, except to mention that these processes are often arduous and should not be proffered lightly.

At a domestic level, human rights are often safeguarded by various organisations. Some of these organisations have the ability to accept complaints and conduct a dispute process, while others focus on advocacy. The Australian Human Rights Commission (AHRC), for example, has a dedicated sex discrimination team, regularly releasing reports including on workplace abuse and harassment. (50) The AHRC can accept complaints, utilising conciliation to resolve disputes. (51) Should a complainant not be satisfied with the outcome, the Federal Courts are the final arbiter in the matter. (51) Organisations which focus on advocacy include NGOs such as Amnesty International, Human Rights Watch and United for Human Rights. These organisations monitor specific human rights and use grassroots tactics and strategies to agitate for change.

A final domestic avenue regarding human rights is through industry-specific advocacy. These are very local, and sometimes employer specific, options, which have the benefit of knowledge concerning working conditions, standards, and practices. The Royal Australasian College of Surgeons, for example, works to provide training and standards-setting in Australia and New Zealand, and has a dedicated advocacy arm. (52) Industry unions, such as the Australian Medical Association, represent doctors in their employment rights. (53) Enterprise bargaining agreements, which are documents dictating conditions of work and standards applicable at a nominated workplace, are also useful tools to commence a complaint, as they often contain a dispute resolution mechanism which the employer is required to follow.

Having documented the options above, it is clear that the domestic sphere offers avenues that are more specialised and nuanced than those proffered by the regional or international sphere. In this way, it is almost difficult to identify the rights that are being protected as they are often enmeshed within standards, legislation and polices. Using one or more of the options mentioned above may assist a complainant in resolving their particular issue in a manner more palatable than that which may occur through a regional or international instrument. In any event, it is worth remembering that such domestic routes, particularly legal when available, are often required to be pursued before escalation to a global instrument is permitted.

Discussion

The question becomes: is the human rights framework an appropriate lens through which to view and tackle the issue of abuse between medical practitioners? The answer depends on what the survivor seeks. If the survivor wishes to act in an individual manner, seeks specific remedies such as compensation or their abuser to be penalised through incarceration or financial means, the ability of the human rights framework to achieve this in a practical and efficient manner appears underwhelming at best. Such a result is really only possible through the legal enforcement of such rights, and therefore only available where the State has afforded the survivor such legal recourse through domestic legislation.

The benefits offered by this framework are evident when used in a collective fashion. Human rights can be used to lobby States and advocate for specific change, utilising the language, global standards and data that are collected through the instruments in conjunction with the lived experience of survivors. Through such agitation, individuals may be able to achieve change on a local level, such as harassment and abuse being included in enterprise bargaining agreements, to a more national or regional level, including the development of legislation or memoranda of understanding between States regarding standards of behaviour.

The rights framework is evidently reactive rather than proactive. Experiences lead to change for future generations, rather than immediate and satisfying results for the wronged individual. Success may also be incremental, with changes and societal shifts slowly taking form over years and decades. It cannot be ignored that there has been significant success in utilising the rights framework for various campaigns: equal pay between women and men, abolition of the death penalty and climate action have used the rights framework and substantial agitation to bring global actors, including States and corporations, into agreement about standards. Of course, even collective action has its drawbacks; some survivors may not wish to publicise their experience, national defamation laws may affect what survivors can release without a criminal conviction, and overall the process is lengthy.

In this way, perhaps the best method of utilising the rights framework is in conjunction with other means, such as through the criminal law pathway. Using the framework, language and statistics offered by human rights may bolster other recourse actions taken by the individual and complement both the need for immediate action and inspire collective change. The power of human rights can no doubt be harnessed to achieve results in one way or another.

Conclusion

Human rights language and standards have permeated the lived reality of most States. The interpretation and enforcement of these rights is where the framework lacks the ability to achieve immediate and effective individual change. While the individual may not receive the benefits, collective agitation using the language and information collected globally can affect national legislations and laws that may prevent future individuals from experiencing the same abuse that their predecessors did. In order to be completely effective, the use of this framework may best be utilised in partnership with a more definitive lens, such as through legal recourse. Ultimately, this framework offers something to the project of addressing the issue of abuse between medical practitioners but cannot provide a definitive silver bullet.