Went to visit a friend in hospital today. Well, I suppose it's not technically a hospital - it's called 'extended care'. My friend is in the psych wing. She is researching human rights, because she says that her rights have been taken away from her. She has no choice but to take the medication that she is given, and no choice as to where she will stay. It's like being in prison. She says that she'd rather be in prison.
My friend wants to take the health professionals to court, arguing that her human rights have been breached. I didn't tell her that I'd studied law, and in any case, I really didn't know what cause of action you'd take the health authorities to court over. I thought about the Charter of Human Rights in Victoria - section 10(c) says that a person must not be "subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent."
I thought that individuals could use the Charter to take an authority to court. But I've just looked up the legislation, and it turns out that individuals can use the Charter to take statutory authories to court if those authorities have breached a human right. But it also looks like you need to have another action first - in other words, the breach of the Charter can only be an add-on to some other legal argument. So, for example, I guess you could sue an authority for negligence, and then also argue that the same action or ommission had breached a human right.
So, I'm not sure if this legislation will really help my friend, because I can't think of another legal cause of action on which you could base a claim. I assume the health authorities have statutory authority to force her to take her medication, and also statutory authority to admit her without her consent. Although I should really look into that.
I don't think this Victorian human rights legislation goes very far at all. It requires that all Bills introduced into Parliament include a statement of human rights compatibility, but the failure to do so doesn't make the Bill or subsequent Act invalid. If a Bill or Act does not comply with human rights, then Parliament can make an 'overriding statement' which says that the Act will be valid despite the fact that it doesn't conform. The Victorian Charter is nothing like the US Bill of Rights, which people can appeal to directly to stop individual breaches of rights.
There is debate about introducing an Australian Bill of Rights. If it's anything like the Victorian one, I guess you could say it's better than nothing, but it really does fall short of all that one expects when they think of a 'bill of rights'. I would be very surprised if Australia introduced a proper bill of rights. It would be a pretty radical move, because it would mean the introduction of a whole new area of law that nobody knows about. Making Parliament and statutory authorities abide by human rights would be a vast, unrestricted requirement - human rights tend to be broadly defined and I imagine that it would be very open to interpretation as to what authorities could or could not do.
But, I think it should be done! Exposing government authorities to a public that demands human rights will cause legislators and bureacrats to scrutinise every decision and action for compatibility. Common practices - like force-feeding drugs to psych patiends - would be reconsidered, and possibility publicly debated. I'd like to look into some other human rights legislation around the world - apparently we're the only Western democracy without it. What does the other legislation look like? How has it been used by the public? Has it been effective to defend human rights?