Mulcahy, Sean; Seear, Kate --- "A Right to Health Services for People Who Use Drugs: Three Queensland Case Studies" [2024] JCULawRw 10; (2024) 30 James Cook University Law Review 165

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A Right to Health Services for People Who Use Drugs:

Three Queensland Case Studies

Dr Sean Mulcahy^[1]* and Professor Kate Seear^[1]**

Abstract

In 2019, Queensland became the first jurisdiction to incorporate a right to health services in its human rights charter. This article examines the implications of the recently introduced right to health services on people who use drugs through case studies of three Queensland legislative reforms that have considered that right. Adopting Russell Solomon’s framework for the analysis of implementation of economic, social, and cultural rights, we consider whether these drug-related legislative reforms have complied with, deliberately avoided, or retrogressed the right to health services. As a result, we find that, while there are no signs that the right to health services is retrogressing in Queensland post-codification, there are some situations in which it is being deliberately avoided or where compliance with the right has ramifications for other human rights of people who use drugs. This article provides a significant account of how a charter-based right to health services operates in practice (as opposed to on paper) and how this has implications for other jurisdictions considering incorporating this right.

I Introduction

The state of Queensland has recently introduced a right to health services under its Human Rights Act 2019.^[1] It is the first jurisdiction in Australia to do so. Whilst some jurisdictions have incorporated (elements of) a right to health services in health-specific legislation, Queensland is the first to incorporate it in its human rights charter.^[2] The right to health services is based on the right to the highest attainable standard of health that is found in article 12.1 of the International Covenant on Economic, Social and Cultural Rights.^[3] The introduction of this right may have implications for a range of health issues in the state including one of specific interest to us – drug law reform. Many advocates argue that the right to health services ‘is likely to include harm reduction services and alcohol and other drug treatments’ for people who use alcohol and illicit drugs.^[4] Others have questioned whether the right to health services will improve access to pharmaceutical drugs, such as vaccinations.^[5]

This article examines the scope of the right to health services in Queensland as it applies to drug use. This is part of an ongoing investigation into what the second author has described as ‘what happens when human rights are brought into conversation with alcohol and other drug “problems” in the form of “dependence”, “misuse” and “addiction”’, as well as drug use more broadly.^[6] In this paper, we question whether the right to health services has made a difference for people who use drugs or whether its application has led to problematic approaches to drug use. We examine this through an analysis of three legislative reforms regarding drugs, which we take to include alcohol, illicit drugs, and pharmaceutical drugs such as medications and vaccines. In doing so, we adopt a more expansive concept of the term ‘people who use drugs’^[7] to include not only those who use alcohol and illicit drugs but also those who use pharmaceutical drugs. Our usage of the term is also not limited to the uncontrolled use of drugs but includes the prescribed use of drugs such as medications and vaccines. We argue that there is value in analysing different kinds of drugs together as they raise diverse issues and contexts which the right to health services impacts and operates within, and therefore allows us to more fully understand where and how the right to health services has been engaged with post-codification.

There have been few drug-related laws subject to human rights scrutiny since the commencement of the Human Rights Act 2019, so we focus on three key legislative reforms that concern drugs: injecting drug use in prisons; real-time prescription monitoring; and COVID-19 vaccination. In each case study, we examine the statement or certificate of human rights compatibility for the legislation and any comments from the legislative scrutiny committees on human rights. The analysis of these legislative reforms is informed by Russell Solomon’s framework of the right to health as complied with, deliberately avoided, or retrogressed.^[8] In conclusion, it is argued that, without appropriate guidance on how it is to be complied with, a right to health services could be a problem rather than a panacea for people who use drugs.

II Background and Theory

In 1976, and following ratification by Australia in the prior year, the International Covenant on Economic, Social and Cultural Rights entered into force. The Covenant includes an obligation for state parties, including Australia, to recognise ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’^[9] The Queensland Human Rights Act 2019 is unique in recognising the right to health services, as the other human rights charters in Australian jurisdictions (namely, the Australian Capital Territory and Victoria) do not include it. However, as the name suggests, it is a limited right to health services, not a broader right to health, and consists of two limbs:

• ‘the right to access health services without discrimination’ (s 37(1)); and

• the right to ‘not be refused emergency medical treatment that is immediately necessary to save the person’s life or to prevent serious impairment to the person’ (s 37(2)).

The first limb has a degree of convergence with the right to equality,^[10] particularly the right to enjoy human rights without discrimination.^[11] The second limb is similar to s 27(3) of the Constitution of the Republic of South Africa Act 1996,^[12] which has been held to apply only to medical emergencies (that is, immediate and urgent accidents or incidents) and not the ongoing treatment of illnesses.^[13] This is further bolstered in the Queensland human rights charter by the inclusion of a requirement that the emergency medical treatment be ‘immediately’ necessary. It is also notable that the right to health services generally, and the second limb particularly, has often been enforced through the right to life, suggesting that the two have a degree of convergence.^[14]

In summary, the inclusion of the right to health services in the Human Rights Act 2019:

1. enables the right to health services to be enforced by the courts in proceedings under the general administrative law, alongside other human rights (though it does not create a head of action for a breach of rights in and of itself);^[15]

2. imposes a duty on public authorities to act in accordance with the right to health services and to consider the right to health services in making relevant decisions, alongside other rights;^[16]

3. requires public officials and the courts to interpret existing legislation (primary or subordinate) in accordance with the right to health services, as well as other rights, to the extent possible that is consistent with its purpose;^[17]

4. requires the proponent of any draft legislation introduced into the parliament to consider and provide a statement setting out whether the legislation is compatible with human rights, including the right to health services where applicable;^[18] and

5. makes bills subject to review by parliamentary committees as to their compatibility with human rights, including the right to health services.^[19]

Regarding the first area, in other countries, the right to health services has contributed to court decisions to increase access to HIV treatment and prevention drugs.^[20] The broader right to health has also been held to require the provision of medicine for the treatment of other illnesses,^[21] including vaccines.^[22] There has, however, been limited domestic jurisprudence on the Human Rights Act 2019 generally, and the right to health services specifically, and no cases concerning drugs.^[23] In part, this may be because there is no stand-alone head of action for a breach of the Act; it must be attached to an existing cause of action.

Regarding the second two areas, concerning obligations on public authorities and interpretation of legislation, the annual reports on the Act by the Queensland Human Rights Commission indicate some progress on the implementation of the right to health services. For example, the Queensland Human Rights Commission has noted that the Mental Health Tribunal’s ‘forensic orders previously contained a set of standard conditions, such as the requirement not to drink alcohol or use drugs’, but, as a result of the Act, ‘the Tribunal is now more inclined to look at whether these conditions are relevant to the individual’s offending behaviour and necessary to ensure their health and public safety.’^[24] This suggests that the Act is making progress on ensuring human rights compliance of and by public authorities.

In this article, we consider the impact of the right to health services in the latter two areas, being statements of human rights compatibility and parliamentary committee review of legislation. Put simply, these processes require that draft legislation introduced into the parliament, first, be accompanied by a statement of compatibility that considers whether the legislation is compatible with human rights including the right to health services and, second, be subject to review by a parliamentary committee that considers the same.^[25] Parliamentary human rights scrutiny of legislation is the primary mechanism in Australia to protect human rights in the law-making process.^[26] This article stems from a larger project investigating how these scrutiny processes impact the human rights of people who use drugs.

To ground our discussion, we examine case studies of three pieces of recent Queensland legislation on the matter of drugs: injecting drug use in prisons, real-time prescription monitoring, and COVID-19 vaccination. The first two are the only pieces of primary legislation dealing with drugs that have been subject to human rights scrutiny. The third is a piece of delegated legislation that deals with the COVID-19 vaccine and related drugs and has been subject to human rights scrutiny. It was selected from among other delegated drugs-related legislation because of its relevance to debates on the human rights impact and compatibility of legislative responses to COVID-19.^[27]

The breadth of the drugs covered – injecting drugs, opioids, and vaccines – raise diverse issues as do the contexts in which the legislation operates – such as prisons, medical clinics, and hospitals. In our analysis, we consider how the right to health services has been engaged in the human rights assessment of this legislation and how that might impact people who use drugs. In his review of Australia’s engagement with economic and social rights, Russell Solomon describes Australia’s engagement with the broader right to health as being ‘a mixed picture’ of ‘compliance [...] deliberate avoidance and [...] retrogression.’^[28] Adopting this framework and applying it to the three case studies in this paper, we consider whether the right to health services is complied with, deliberately avoided, or retrogressing in Queensland post-codification.

Solomon further claims that ‘the right to health [...] provides some normative force to enable people to claim access to health care services and resources.’^[29] However, he notes that two key institutional barriers exist to accessing this right: the nature of federalism in Australia and the shared jurisdiction over health policy between federal and state governments; and Australia’s public health approach being based on addressing health problems rather than health determinants and end point of care rather than preventative health care. It should also be noted, again, that Queensland is the only state that has codified the right to health services in its human rights charter, but that that right is limited to services instead of broader health provision and protection. In this paper, we explore Solomon’s claim about the ‘normative force’ of a right in relation to the Queensland case studies and finds that it has not enabled people who use drugs to claim access to health care and resources due to various institutional factors – some of which Solomon has identified and other novel barriers that this piece identifies.

III Injecting Drug Use in Prisons

The first bill being examined is the Corrective Services and Other Legislation Amendment Bill 2020. It was introduced on March 17, 2020 and passed on July 16, 2020. It was intended to respond to risks identified in the Crime and Corruption Commission’s examination of corruption risks in Queensland’s prisons and to improve operational efficiencies for Queensland Corrective Services (QCS). It included several clauses relevant to the right to health services, including replacing the requirement for the Chief Executive to establish programs or services for the ‘medical’ welfare of prisoners with a new requirement to establish or facilitate programs or services to support the health and well-being of prisoners.^[30] This has been complemented by a memorandum of understanding between Queensland Health and QCS that explicitly acknowledges the right to health services.^[31]

In considering the provision in respect of health programs and services to prisoners, the Statement of Compatibility accompanying the Bill noted that the right to health services was relevant to this provision, but there was no substantive discussion in the statement of how.^[32] The Bill was then subject to scrutiny by the Legal Affairs and Community Safety Committee, in which there was more discussion of this provision.

In a submission to the Committee, the Aboriginal and Torres Strait Islander Legal Service welcomed the ‘broader legislative language that provides that the Chief Executive must establish or facilitate programs or services [...] to support the health and wellbeing of prisoners.’^[33] It argued that this would lend greater support to recommendations by the State Coroner for a collaborative and multidisciplinary approach to intake, health assessment and mental health assessment, including improved services in relation to alcohol dependency.^[34] In response to this, QCS stated:

QCS acknowledges that prisoners and offenders often have poorer health indicators than the general population, including disproportionately higher rates of problematic substance use, mental health issues and disability needs. Prisoner and offender access to quality healthcare has implications for the health of the wider community and is often linked to increased re-offending and anti-social behaviour. QCS is actively working with relevant stakeholders to improve information-sharing, identification and management of prisoners with complex needs.^[35]

Later that year, in response to a hepatitis C outbreak in Queensland correctional centres, the Chief Executive of Hepatitis Queensland, Katelin Haynes, argued that the right to health services meant that incarcerated people who inject drugs should be able to access to needle and syringe programs (NSP) that enable them to obtain clean needles just as people in the wider community can, saying:

People in prisons have a right to equality of health services and that includes harm reduction measures, health promotion measures and education, as well as more traditional medical approaches like testing and treatment of hepatitis C. Under the Queensland Human Rights Act everyone has a right to health services and we see NSPs as a health service.^[36]

However, the Together Union, which represents correctional officers in Queensland, argued that NSP in custodial settings presented an unacceptable risk to staff. The Union’s Director of Industrial Services, Michael Thomas said:

Drug use is a health issue. But if you think of the amount of crime that comes from it, and we’ve got the opportunity in a controlled environment to try and end the drug habit and end the health problem, then we should be doing that – not just condoning the ongoing use of drugs.^[37]

Despite prison reforms requiring services to support the health of prisoners, NSP have not been introduced into Queensland prisons, potentially in part due to objections from prison officers and their union.^[38] This suggests that the right to health services has not been mobilised to advance important changes in the provision of health care for prisoners who use drugs. Moreover, it appears that the right to health services for prisoners who use drugs is being deliberately avoided, to use Solomon’s framing, or – at least – that there is a lack of recognition of NSP as a preventative health care measure that can reduce the incidence of health conditions such as blood-borne viruses.

The exception for corrections that exists under the Human Rights Act 2019, which enables a corrections officer to act in a way that is not compatible with certain rights when considering the security, good management, safety, and welfare of a prison or prisoners. does not apply to the right to health services,^[39] and as such there is an obligation on prisons to ensure that the right to health services is realised. Furthermore, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has concluded that the denial of sterile needles and syringes in prisons can ‘perpetuate discrimination.’^[40] This would, as such, breach the first-limb right to access health services without discrimination under s 37(1) of the Human Rights Act 2019, and suggests that access to NSP in prisons is required under this provision. However, as discussed further later, s 37(1) applies to discrimination based on attributes in the Anti-Discrimination Act 1991. Whilst prisoners who use drugs may have an ‘impairment’, there is a debate about whether drug use characterised as an ‘addiction’ is (or should be) an impairment. In any case, this does not include people who are not impaired by their drug use.

In addition, Michael Levy and Daniel Mogg argue that ‘the right to health provision and health protection cannot be, and in fact has not been, effectively negotiated for or by the community’s most disempowered individuals’, including prisoners who use drugs.^[41] In part, this may be due to the stigma, shame and criminalisation that attaches to illicit drug use. In short, stigma, shame, and criminalisation form institutional barriers to prisoners who use drugs claiming access to NSP as a health care service or resource. As Katarina Tomasevski further explains, ‘human rights principles and standards rarely specify entitlements of prisoners in health care. Most problems related to the health care of prisoners cannot be solved by conventional human rights practice of identifying practices that constitute violations of individual rights.’^[42] This also raises the question of why disempowered individuals, such as prisoners who use drugs, have to negotiate for the right to health services and why the onus is placed on them to enforce this right (including through legal proceedings) when corrective services are prohibited from acting in a way that is not compatible with the right to health services.^[43]

In summary, the lack of an NSP program in Queensland prisons could be attributable to several factors: a culture of reduced respect for, understanding of, and engagement with human rights obligations in QCS; a lack of acceptance of NSP as a preventative health care measure; limitations in the Human Rights Act 2019 itself; and institutional barriers to prisoners asserting a right to NSP (and human rights more generally), including stigma, shame, and their criminalised status. However, these issues do not only arise in corrections settings, as the next case study shows.

IV Real-time Prescription Monitoring

The Debt Reduction and Savings Bill 2021 included technical and clarifying amendments to the state’s real-time prescription monitoring (‘RTPM’) system to enable its supporting regulations to be drafted in a clearer and simpler way,^[44] amendments which the Treasurer argued promoted the right to health services. The Bill was introduced on March 25, 2021 and passed on May 27, 2021. RTPM had been legislated in 2019, prior to the commencement of the Human Rights Act 2019, so this was the first time that the system was subject to legislative human rights scrutiny in parliament.

By way of background, the National Drug Strategy 2017-2026 calls for ‘implementation of real-time monitoring of prescription medications so that prescribers can prevent patients inappropriately accessing harmful and substantial quantities of medications.’^[45] This is based on increased hospitalisation associated with prescription opioid poisoning.^[46] Dr Jeannette Young, former Queensland Chief Health Officer and Deputy Director-General of Queensland Health, gave evidence to a parliamentary inquiry about the misuse of prescription medicines when the RTPM system was first introduced:

Misuse of pharmaceutical opioids is an increasing concern for our community. Unlike illicit opioid drugs, access to pharmaceutical opioids is enabled by the writing of a prescription [...] In Queensland we are seeing an increase in cases of prescription opioid related overdoses and deaths, an increase in people on treatment programs, increased referrals to alcohol and drug treatment services, and more evidence of these drugs entering into illicit markets.^[47]

In the Statement of Compatibility for the Bill, it was argued that the amendments ‘enabling the supporting regulations [for the RTPM system] to be drafted more clearly and simply’ promote the right to health services by ‘providing more certainty for practitioners and health consumers about the use of medicines in health care.’^[48] Whilst there was no substantive discussion of how, there are two issues with this approach.

First, as the New South Wales Users and AIDS Association argued in a submission on the New South Welsh RTPM system, there are ‘significant, well-founded concerns that exercising our human right to appropriate health care will, with the dramatically increased tendency towards monitoring, be used to deny us that right’,^[49] particularly in the context of palliative care.^[50] The argument here appears to be that data collected through RTPM schemes will be used to deny regular users of drugs their ‘right to appropriate healthcare’ or discriminate against them, with pain management framed as an exercise of this right, building on arguments that ‘a right to pain management may be implied from the express right to health.’^[51] Naomi Burke-Shyne et al argue that the right to health encompasses ‘access to medication’,^[52] and that monitoring of prescriptions of opioids for pain relief ‘undermine the right to health, not only by impeding access to essential controlled medicines, but because they fly in the face of the notion of health as a fundamental constituent of human dignity.’^[53] However, this relies on the broader right to health rather than the narrower right to health services (though an argument could be made that RTPM schemes infringe the first-limb right to access health services without discrimination under s 37(1) of the Human Rights Act 2019, based on addiction or disability). Additionally, researchers of prescription opioid dispensing in New South Wales have argued that recognition of the right to pain management and treatment has caused ‘the overall increasing trend in the proportion of citizens using prescription opioid [sic] in NSW’, which they argue is itself ‘a major public health problem’ that leads to harms including substance dependence.^[54] The argument here appears to be that prescription monitoring advances health because it potentially reduces the problematic use of prescription opioids. This raises an important issue that while, to use Solomon’s framing, the right to health may be complied with ostensibly to reduce the health impacts of prescription opioid misuse, compliance with the right may impinge other human rights.

Second, and relatedly, health may be used to justify limitations of other rights. The Bill was subject to scrutiny by the Economics and Governance Committee, one of the standing committees of the Queensland Parliament. It found that the Bill also placed limitations on the right to privacy under s 25(a) of the Human Rights Act 2019 ‘by providing for the recording of personal information in the [monitored medicines] database about instances when an individual has been prescribed, dispensed or given a treatment dose of a monitored medicine.’^[55] However, the Committee concluded that the limitation on the right to privacy was justified to prevent ‘overdoses and deaths.’^[56]

In earlier legislation introducing the RTPM system, breaches of the right to privacy were ‘balanced against the need to protect and promote the health of the public and are considered justified’^[57]– a justification which was accepted by the State Development, Natural Resources and Agricultural Industry Development Committee that reviewed the law.^[58] Similarly, Victorian legislation was justified on the grounds that it would ‘promote safe supply, prescription and dispensing practices [and] reduce harm from monitored poisons and other high-risk medication’,^[59] and Australian Capital Territory legislation was justified on the grounds that it ‘protects and promotes public health and safety.’^[60] In the Australian Capital Territory, it was argued that:

If related health professionals are unable to access information regarding a particular patient’s existing use of monitored medicines or whether an approval is held by one of the patient’s practitioners, they may prescribe a high-risk product and inadvertently increase the risk of misuse, abuse and diversion of scheduled medicines by such patients. This has the potential to cause serious harm or death to the individual patient which affects the entire ACT community and places an increased burden on the health system.^[61]

The right to privacy has also been raised in United States case law on RTPM.^[62] Many of the justifications for limiting the right to privacy are based on health grounds. However, Dagnachew Fetene et al have argued that:

To date, there has been no evidence to demonstrate that appropriate clinical care automatically follows from use of RTPM systems. This is an important gap in our understanding of what the implementation of prescription monitoring achieves for people who have been prescribed these pharmaceuticals. Identifying patients does not ensure they received appropriate medical care they may require.^[63]

This suggests that there is no evidence underpinning the claims that RTPM systems, without appropriate clinical care, advance the health of those who are subject to them. It is also striking that the human rights scrutiny processes in Queensland did not contemplate how RTPM might impact the right to health services for people who use drugs, particularly the first limb right to access health services without discrimination. There is evidence from the United States that RTPM facilitates discrimination against people seeking pain care,^[64] which, as discussed above, may be covered by the right to health services. Of course, people seeking pain care can face discrimination when accessing pain medication even in the absence of RTPM (for example, when accessing pain relief at the end of life); however, RTPM may exacerbate the discrimination experienced.

Furthermore, it is questionable whether people who use drugs, particularly those who are not impaired by their use of drugs, are protected from discrimination,^[65] and thus have recourse to the right to access health services without discrimination. This is because Queenslanders are currently only protected from discrimination based on ‘impairment’,^[66] which may not extend to people who use drugs but do not experience impairment arising from their use. This could soon be remedied as the Queensland Human Rights Commission has recommended that people characterised as experiencing ‘addiction’ be protected from discrimination under a revised protected attribute of disability,^[67] but this would still only protect people who are ‘addicted’ to drugs – which is a controversial and contested category and concept^[68] – and not other people who use drugs.

As such, the legislative framework in Queensland poses an institutional barrier to people who use drugs claiming equitable access to health care and resources, in the form of prescription medication, without discrimination. What may be argued to be an approach that upholds a broad right to health by ostensibly reducing the health impacts of prescription opioid misuse may impinge other human rights. In the next section of this paper, we consider this further by turning from drugs in the form of prescription medication to vaccines.

V COVID-19 Vaccination

The Health (Drugs and Poisons) (COVID-19 Vaccination Services) Amendment Regulation 2021 concerned Queensland-specific procedures for the COVID-19 vaccine and related drugs (used for the therapeutic treatment of a person having an adverse reaction to the vaccine) to be safely obtained, sold, supplied, issued, stored and disposed of. The Regulation commenced on January 29, 2021.

Immunisation has been recognised as important to the broader right to health, particularly ‘for the healthy development of the child.’^[69] In the Human Rights Certificate for the Regulation, it was argued that ‘the proposed universal and free availability of the vaccine to all Queenslanders will be integral to promoting and facilitating this important human right [to health services] for everyone in the community.’^[70] This is significant in that it recognises that access to vaccines is ‘integral’ to promoting and fulfilling the right to health services, whereas access to prescription medications and NSP was not explicitly recognised as integral to promoting and fulfilling this right in the prior two case studies.

However, it was noted that ‘due to the unprecedented nature and scale of the rollout, it is necessary to prioritise the deployment of vaccines’,^[71] and that ‘based on [the Australian Technical Group in Immunisation’s] advice, the first to be vaccinated will be those at greatest risk of exposure and the greatest risk of severe disease.’^[72] This prioritised access to vaccination drugs to frontline workers and those in certain settings, such as care homes. This was in line with s 13 of the Human Rights Act 2019, which recognises that human rights may be limited. It was argued that ‘prioritising those at greatest risk of being exposed to COVID-19 or at greatest risk of severe disease will minimise any potential impact on the overall health system’,^[73] including by minimising ‘the spread of COVID-19’, particularly in health care settings.^[74] It concluded that ‘the staged nature of the rollout will prioritise those who have the greatest need and those whose roles in our community expose them to the greatest risk [...] On balance, it will promote and facilitate access to health services for the community in a way that is consistent with a democratic society.’^[75]

The rollout schedule was based on Australia’s COVID-19 Vaccine National Roll-Out Strategy, which identified priority populations for vaccination and the phases in which vaccines would be provided. While international human rights law recognises a right to essential drugs, the international jurisprudence on vaccine roll-out and prioritisation is scant. The International Covenant on Economic, Social and Cultural Rights stipulates that to achieve the full realisation of the right of everyone to the highest attainable standard of physical and mental health, states shall take steps necessary for ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases.’^[76] Manan Daga and Atul Alexander argue that this, and related international case law, recognise ‘access to vaccination in times of an epidemic as human rights.’^[77]

In this regard, the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has stated that ‘it is imperative that access to COVID-19 vaccines and treatment is provided to all without discrimination and prioritised to those who are most exposed and vulnerable to the risk of COVID-19’ including ‘frontline health-care workers.’^[78] This is a significant statement, as it recognises that prioritisation of vaccines to at-risk groups will still comply with the right to health services. The Special Rapporteur also noted, however, that ‘without broader public health and human rights inputs, these developments will fail to reach everyone, and groups in more vulnerable, remote, disadvantaged or discriminated situations will be less likely to receive them.’^[79] Sharifah Sekalala et al argue that states need to adopt intersectional human rights criteria for prioritisation of COVID-19 vaccination that take into account high-risk occupations and places where one lives alongside other sociodemographic factors, individual health-related risk factors, and financial and social effects of ill-health.^[80]

In Australia, there is no case law on the vaccine roll-out, due in part to issues around justiciability.^[81] As such, there is limited recourse under the right to health services for people who were delayed access to COVID-19 vaccinations as part of the staggered roll-out, especially if the complainant cannot establish that they were discriminated against in accordance with s 37(1) of the Human Rights Act 2019. Because it is widely accepted that vaccine prioritisation (particularly in a public health emergency like COVID-19) is compatible with the right to health services, this forms an institutional barrier to those who are not prioritised, but may be vulnerable, from claiming access to vaccines as a health resource.

In conclusion, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has argued that ‘the most effective “vaccine” for global health challenges has been and will always be the full realisation of all human rights, including the promotion of physical and mental health through the meaningful participation and empowerment of all people.’^[82] This discussion of Queensland legislation shows how human rights, particularly the right to health services, have been an effective normative framework to guide vaccination roll-out and implementation during the COVID-19 pandemic. In this case, the Government considered whether limiting the right to health services through prioritising access to vaccines was a reasonable and justifiable way to minimise any potential impact on the health system due to the spread of COVID-19 and concluded that it was. Nevertheless, this does raise issues for those who were not prioritised but in need of access to vaccines because of other vulnerabilities, raising questions about whether the human rights framework in Queensland adequately protects their needs.

VI Conclusion

Throughout this article, we have examined the right to health services in the Queensland Human Rights Act 2019 through three case studies of drug-related legislation which have engaged that right. As noted at the outset, the right to health services is narrow in scope, especially when compared to the broader right to health under the International Covenant on Economic, Social and Cultural Rights. We can conclude that, so far, the right to health services has not made a significant difference to human rights scrutiny of drug-related legislation as it has only been referred to in a cursory way in statements of compatibility and scrutiny reports and other rights tend to take precedence, such as the right to humane treatment and the right to privacy. Perhaps this could be because there is limited jurisprudence on the right to health services domestically and internationally in comparison to civil and political rights. In this respect, it is to be hoped that discussion of the right to health services in parliamentary human rights scrutiny processes will grow over time as legislative proponents and scrutiny committees become more familiar with the right. Further research could attend to how the right has been applied to other legislation outside the drugs field.

In short, the right to health services could make a difference to people who use drugs, but its potential has yet to be realised. While there are no signs that the right to health services is retrogressing in Queensland post-codification, there are some situations in which it is being deliberately avoided (in the case of prisoners who use drugs) or where compliance with the right has ramifications for other human rights (in the case of RTPM regimes).

While the introduction of this right may have contributed to legislative reforms to require programs and services to support prisoners’ health, it has yet to establish a right to NSP for prisoners who use drugs. This may be in part due to opposition from prison officers and their unions. In our earlier work, the significant role that police officers and their unions play in shaping responses to motorists who use drugs was identified,^[83] but further research may need to attend to the role of other public service unions in regards to human rights-based responses to drug use.^[84] It is possible that unions, particularly those covering prisons, may pose a significant institutional barrier to prisoners claiming access to health care services and resources, including in the form of NSP.^[85] Further research might also attend to the impacts of privatisation (particularly in relation to prison health care) on the right to health services.^[86]

While the Queensland charter protects the right to access health services without discrimination, it raises the question, in the context of prescription monitoring, of whether people who use drugs, particularly those people who use drugs but do not experience impairment (a protected attribute under the Anti-Discrimination Act 1991), are protected from discrimination. While this could soon be remedied as the Queensland Human Rights Commission has recommended that people experiencing addiction be protected from discrimination under a revised protected attribute of disability,^[87] this would only protect people who are deemed to be ‘addicted’. Unfortunately, the Queensland Human Rights Commission ignored recommendations from alcohol and other drug as well as HIV community organisations to provide more expansive protection from discrimination based on health status. The Queensland Government should consider the submissions from these organisations when reforming anti-discrimination law, particularly because of the flow-on effects for the right to access health services without discrimination and the fact that the currently legislative framework may pose an institutional barrier to accessing this right.

Access to vaccines is recognised as integral to promoting and fulfilling the right to health services, whereas access to prescription medications and NSP is not so explicitly recognised, though questions remain about whether the right to health services has effectively guided vaccination roll-out and implementation during the COVID-19 pandemic in Queensland, noting that the prioritisation of vaccines in and of itself posed an institutional barrier to accessing health resources in the form of vaccines. It is notable that the Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee’s Inquiry into the Queensland Government’s Health Response to COVID-19 did not once mention the right to health services, including its effect on vaccination policies regarding roll-out and implementation.^[88]

Finally, caution needs to be exercised to ensure that the right to health services does not lead to punitive responses to people who use drugs under the guise of protecting their (right to) health.^[89] In this regard, the right to health services needs to be accompanied by guidelines that steer human rights-based responses to drug use.^[90] It is also essential that such guidelines recognise institutional barriers to accessing the right to health services for people who use drugs, including stigma, shame, criminalisation, aversion to human rights-based approaches by workers’ representatives, restrictive legislative frameworks, and limitations to the right itself. Without such guidance, the right to health services risks becoming a problem rather than a panacea for people who use drugs.

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^* Research Officer, Gender, Law and Drugs Program, Australian Research Centre in Sex, Health and Society, La Trobe University&#[1]

^** Australian Research Council Future Fellow, Gender, Law and Drugs Program, Australian Research Centre in Sex, Health and Society, La Trobe University

We acknowledge the Australian Research Council which provided funding for this research through its Future Fellowship scheme (grant FT200100099), with additional support from La Trobe University.

^[1] Human Rights Act 2019 (Qld) s 37 (‘HRA’). For background, see Claire Brolan et al, ‘A potential Human Rights Act in Queensland and inclusion of the right to health’ (2018) 42(2) Australian and New Zealand Journal of Public Health 120; Claire Brolan, ‘Queensland’s new Human Rights Act and the right to access health services’ (2020) 213(4) Medical Journal of Australia 158.

^[2] The term ‘human rights charter’ is used here to refer to human rights acts or bills.

^[3] International Covenant on Economic, Social and Cultural Rights, opened for signature December 19, 1966, 933 UNTS 3 (entered into force January 3, 1976), art. 12.1 (‘ICESCR’).

^[4] Queensland Network of Alcohol and Other Drug Agencies, ‘Introducing the International Guidelines on Human Rights and Drug Policy and their intersection with the Queensland Human Rights Act’ (2021) 2 Focus 3, 4. See also Paul Gregoire, ‘Lawyers call for drug decriminalisation: An interview with ALHR’s Kerry Weste’ Sydney Criminal Lawyers (6 September 2019).

^[5] See, e.g., Michelle Gunn and Fiona McDonald, ‘COVID-19, rationing and the right to health: Can patients bring legal actions if they are denied access to care?’ (2021) 214(5) Medical Journal of Australia 207.

^[6] Kate Seear, Law, Drugs, and the Making of Addiction: Just Habits (Routledge, 2020) 33-34.

^[7] On the terminological debates surrounding ‘people who use drugs’, see Miriam Boeri et al, ‘Language preferences an impact of labels on the lived experience of people who use heroin’ (forthcoming) Drugs: Education, Prevention and Policy.

^[8] Russell Solomon, Australia’s Engagement with Economic and Social Rights: A Case of Institutional Avoidance (Springer, 2021) ch 2.

^[9] ICESCR (n 3), art. 12.1.

^[10] HRA (n 1) s 15.

^[11] Ibid s 15(2).

^[12] Constitution of the Republic of South Africa Act 1996 (South Africa) s 27(3).

^[13] Soobramoney v. Minister for Health (Kwazulu-Natal) [1997] ZACC 17 [13] (Constitutional Court of South Africa).

^[14] HRA (n 1) s 16. See also Steven Keener and Javier Vasquez, ‘A life worth living: Enforcement of the right to health through the right to life in the Inter-American Court of Human Rights’ (2009) 40 Columbia Human Rights Law Review 595, 606-614, which discusses two cases of the Inter-American Court of Human Right that interlink the right to life with the right to health services.

^[15] HRA (n 1) s 59.

^[16] Ibid s 58.

^[17] Ibid s 48.

^[18] Ibid s 38, though noting that the statement is not binding on any court of tribunal per s 38(4).

^[19] Ibid s 39.

^[20] Minister of Health v Treatment Action Campaign (No 2) [2002] ZACC 15 (Constitutional Court of South Africa) based on Constitution of the Republic of South Africa Act 1996 (South Africa) s 27(1)(a), cited in Scott Calnan, ‘Codification and invocation of the Queensland Human Rights Act: Have human rights been furthered?’ (2020) 26 James Cook University Law Review 141, 155. Interestingly, as Calnan points out, the South African right to health services is subject to progressive realisation, but the Queensland right is subject to immediate enforcement.

^[21] Campodonico de Beviacqua, Ana Carina v. Ministry of Health and Social Welfare – Secretary of Health Programs and Bank of Antineoplastic Drugs [2000] C.823.XXXV (Constitutional Court of Argentina). See discussion in Monica Pinto and Martin Segal, ‘Influence of the ICESCR in Latin America’ in Daniel Moeckli, Helen Keller and Corina Heri, The Human Rights Covenants at 50: Their Past, Present and Future (Oxford University Press, 2018) 163-164.

^[22] Viceconte, Mariela Cecilia v. Ministry of Health and Social Action [1998] 31.777/96 (Federal Administrative Court of Appeals of Argentina) (‘Viceconte’); SU-225/98 [1998] (Constitutional Court of Colombia).

^[23] In Woolston v Commissioner of Police [2022] QDC 70 (1 April 2022) [55]-[59], the Court held that ‘the failure of police to provide a blood kit’ did not mean that a person was ‘refused access to health services of medical treatment for any life threatening or other impairment’ in accordance with section 37(2) of the Human Rights Act 2009. In Attorney-General for the State of Queensland v Grant (No 2) [2022] QSC 252 (16 December 2022) [178], the Court noted that ‘a question remains’ about whether Queensland Corrective Service’s practices and policies in relation to support for people with serious health conditions, such as the lack of provision of supported accommodation, are compatible with section 37(1) of the Human Rights Act 2019, but ‘they are questions for another day and another court.’ See also Attorney-General for the State of Queensland v Grant [2022] QSC 180 (31 August 2022) [30]. In GNR [2022] QCAT 430 (28 October 2022) [6], the Tribunal held that the right to access health services without discrimination under section 37(1) of the Health Services Act 2019 ‘would be enhanced by the giving of consent’ by the Tribunal to a sterilisation procedure in a situation where a person ‘lacks the capacity to give her own consent to the proposed procedure.’

^[24] Queensland Human Rights Commission, Putting People First: The First Annual Report on the Operation of Queensland’s Human Rights Act 2019-20 (2020) 44.

^[25] HRA (n 1) s 38-39.

^[26] Julie Debeljak and Laura Grenfell (eds.), Law Making and Human Rights (Lawbook Co, 2020); Adam Fletcher, Australia’s Human Rights Scrutiny Regime: Democratic Masterstroke or Mere Window Dressing? (Melbourne University Press, 2018).

^[27] See, for example, Rosalind Croucher, ‘Whither human rights and freedoms protections in Australia? Rights and freedoms in the age of COVID-19’ (Presentation at the Samuel Griffith Society 32^nd Conference, Sydney, Australia, 1 May 2022); Rosalind Croucher, 'Executive discretion in a time of COVID-19 – Promoting, protecting and fulfilling human rights in the Contemporary public health context’ (Presentation at the 11^th Austin Asche Oration in Law and Governance, Darwin, Australia, 17 November 2022); Lorraine Finlay and Rosalind Croucher, ‘Limiting Rights and Freedoms in the Name of Public Health: Ensuring Accountability during the COVID-19 Pandemic Response’ in Belinda Bennett and Ian Freckleton (eds.), Australian Public Health Law (Federation Press, 2023).

^[28] Russell Solomon, Australia’s Engagement with Economic and Social Rights: A Case of Institutional Avoidance (Springer, 2021) 87.

^[29] Ibid 47.

^[30] Corrective Services and Other Legislation Amendment Bill 2020 (Qld) cl 39.

^[31] Queensland Health and Queensland Corrective Services, Memorandum of Understanding (2020) para. 3.7(c): ‘The Parties also recognise the Human Rights Act 2019 which seeks to protect and promote human rights of all individuals in Queensland. Without limiting other rights, the Parties specifically acknowledge the right to health services without discrimination and that 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.’

^[32] Statement of Compatibility, Corrective Services and Other Legislation Bill 2020 (Qld) 3.

^[33] Aboriginal and Torres Strait Islander Legal Service, Submission to Legal Affairs and Community Safety Committee, Parliament of Queensland, Inquiry into the Corrective Services and Other Legislation Amendment Bill 2020, 20 April 2020, 4.

^[34] Ibid, referencing Malone, Terrence Michael (2014/4133) QldCorC (8 May 2019).

^[35] Cited in Legal Affairs and Community Safety Committee (Queensland), Inquiry into the Corrective Services and Other Legislation Amendment Bill 2020 (2020) 31 (emphasis added).

^[36] Mark Rigby, ‘Hepatitis C outbreak ignites debate on needle exchange in Queensland correctional centres’ ABC News (23 July 2020).

^[37] Ibid.

^[38] Michael Levy, ‘Prisoners’ right to health and safety’ in David Brown and Meredith Wilkie (eds.), Prisoners as Citizens: Human Rights in Australian Prisons (Annandale: Federation Press, 2002) 250.

^[39] HRA (n 1) s 126 inserting Corrective Services Act 2006 (Qld) s 5A. There has been some confusion about this exception, which only applies in certain circumstances to the right to humane treatment when deprived of liberty, per Corrective Services Act 2006 (Qld) s 5A(1). See Claire Brolan, Erin Cameron and Grazia Catalano, ‘Queensland’s new Human Rights Act and the right to access health services’ (2021) 214(8) Medical Journal of Australia 387, 387.

^[40] United Nations Human Rights Council, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc A/HRC/38/36 (2018) 7.

^[41] Michael Levy and Daniel Mogg, ‘Queensland’s new Human Rights Act and the right to access health services’ (2021) 214(8) Medical Journal of Australia 387, 387.

^[42] Katarina Tomasevski, Prison Health: International Standards and National Practices in Europe (Helsinki Institute of Crime Prevention, 1992) xvii.

^[43] HRA (n 1) s 58(1).

^[44] Debt Reduction and Savings Bill 2021 (Qld) ch 3, amending the Medicines and Poisons Act 2019.

^[45] Department of Health (Australia), National Drug Strategy 2017-2026 (2017) 12.

^[46] Ibid 33-34.

^[47] Cited in Economics and Governance Committee (Queensland), Inquiry into the Debt Reduction and Savings Bill 2021 (2021) 68.

^[48] Statement of Compatibility, Debt Reduction and Savings Bill 2021 (Qld) 12.

^[49] NSW Users and AIDS Association, Submission to New South Wales Government, Regulation to Support Real-Time Prescription Monitoring (RTPM), 15 March 2021, 17-18.

^[50] Ibid, 9.

^[51] Frank Brennan, Daniel Carr and Michael Cousins, ‘Pain management: A fundamental human right’ (2017) 105(1) Anaesthesia and Analgesia 205, 213.

^[52] Naomi Burke-Shyne et al, ‘How drug control policy and practice undermine access to controlled medicines’ (2017) 19(1) Health and Human Rights Journal 237, 244.

^[53] Ibid 242.

^[54] Mofi Islam et al, ‘Prescription opioid dispensing in New South Wales, Australia: Spatial and temporal variation’ (2018) 19 BMC Pharmacology and Toxicology citing Frank Brennan, Daniel Carr and Michael Cousins, ‘Pain management: A fundamental human right’ (2017) 105(1) Anaesthesia and Analgesia 205, 213.

^[55] Economics and Governance Committee (Queensland), Inquiry into the Debt Reduction and Savings Bill 2021 (2021) 71.

^[56] Ibid.

^[57] Explanatory Note, Medicines and Poisons Bill 2019 (Qld) 32.

^[58] State Development, Natural Resources and Agriculture Industry Development Committee (Queensland), Inquiry into the Medicines Bill 2019 (2019) 32.

^[59] Victoria, Parliamentary Debates, Legislative Council, 7 September 2017, 4596 (Philip Dalidakis).

^[60] Explanatory Statement, Medicines, Poisons and Therapeutic Goods Amendment Bill 2018 (ACT) 12.

^[61] Ibid 13.

^[62] Jennifer Oliva, ‘Prescription-drug policing: The right to health-information privacy pre- and post-Carpenter’ (2020) 69(4) Duke Law Journal 775; Christopher Smith, ‘Somebody’s watching me: Protecting patient privacy in prescription health information’ (2012) 36 Vermont Law Review 931.

^[63] Dagnachew Fetene et al, ‘The impact of Victoria’s real time prescription monitoring system (SafeScript) in a cohort of people who inject drugs’ (2021) 214(5) Medical Journal of Australia 234, 234.

^[64] See, e.g., Jennifer Oliva, ‘Dosing discrimination: Regulating PDMP risk scores’ (2022) 110(1) California Law Review 47, passim.

^[65] Queensland Network of Alcohol and Other Drug Agencies, Submission to Queensland Human Rights Commission, Anti-Discrimination Act Review, 28 February 2022.

^[66] Anti-Discrimination Act 1991 (Qld) s 7.

^[67] Queensland Human Rights Commission, Building Belonging: Review of Queensland’s Anti-Discrimination Act 1991 (2022) 270-272.

^[68] Suzanne Fraser and David Moore, ‘Introduction: Constructing drugs and addiction’ in The Drug Effect: Health, Crime and Society (Cambridge University Press, 2011); Helen Keane, What’s Wrong with Addiction? (Melbourne University Press, 2002); Seear (n 6).

^[69] ICESCR (n 3) art 12.2(a) referenced in Mirko Bagaric, ‘Human rights: Life, health and welfare’ in Michael Kirby (ed.) Laws of Australia (Thomson Reuters, 2018) para. 21.7.1400.

^[70] Human Rights Certificate, Health (Drugs and Poisons) (COVID-19 Vaccination Services) Amendment Regulation 2021 (Qld) 5.

^[71] Ibid 7.

^[72] Ibid.

^[73] Ibid.

^[74] Ibid 9.

^[75] Ibid 10.

^[76] ICESCR (n 3) art. 12.2(c).

^[77] Manan Daga and Atul Alexander, ‘Equitable access to COVID-19 vaccine: Voices from international human rights law’ (2022) 11 Asian African Legal Consultative Organisation Journal of International Law 73, 73 referencing Viceconte (n 22).

^[78] United Nations Office of the High Commissioner for Human Rights, ‘Statement by UN human rights experts: Universal access to vaccines is essential for prevention and containment of COVID-19 around the world’ (Statement, 19 November 2020).

^[79] Dainius Puras, Final Report of the Special Rapporteur on the Right to Everyone to the Enjoyment of the Highest Standard of Physical and Mental Health, UN Doc A/75/163 (2020) 11.

^[80] Sharifah Sekalala et al, ‘An intersectional human rights approach to prioritising access to COVID-19 vaccines’ (2021) 6(2) BMJ Global Health referencing Ole Norheim et al, ‘Guidance on priority setting in health care (GPS-Health): The inclusion of equity criteria not captured by cost-effective analysis’ (2014) 12(1) Cost Effectiveness and Resource Allocation.

^[81] See, e.g., Australian Vaccination-Risks Network v Secretary, Department of Health [2022] FCA 320. The law on vaccine mandates is beyond the scope of this article.

^[82] Puras (n 79) 2.

^[83] Sean Mulcahy and Kate Seear, ‘Playing to the gallery: The invocation of human rights, legal actors, and outside audiences in debates on roadside drug testing in the Australian Capital Territory’ (2022) 31(2) Griffith Law Review.

^[84] Kate Seear, ‘Hepatitis transmission and prevention: Exploring the role that the law plays in shaping blood-borne virus epidemics’ (Presentation at the Australian Viral Hepatitis Conference, Gold Coast, Australia, 30 September 2016).

^[85] Mark Stoove et al, ‘Salvaging a prison needle and syringe program trial in Australia requires leadership and respect for evidence’ (2015) 203(8) Medical Journal of Australia 319.

^[86] See, e.g., Paula O’Brien, ‘The international right to health: State obligations and private acts in the health care system’ (2013) 12(1) Journal of Law and Medicine 194.

^[87] Queensland Human Rights Commission, Building Belonging: Review of Queensland’s Anti-Discrimination Act 1991 (2022) 270-272.

^[88] Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee (Queensland), Interim Report: Inquiry into the Queensland Government’s Health Response to COVID-19 (2020).

^[89] Seear (n 6).

^[90] International Centre on Human Rights and Drug Policy et al, International Guidelines on Human Rights and Drug Policy (2019).