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Introduction: The Interplay of Individual Rights and Public Health
Throughout the years, various epidemics, pandemics and diseases have affected the world and when they occur, citizens demand and expect the government to eradicate the disease, prevent and minimise its spread. This is where public health thrives, it may be defined as the protection of individuals health and well-being through the duties and powers of a state for the greater good of the public. It is, however not, an excuse for the infringement of human rights, even-though it subtly encourages conformity to laws if not given voluntarily, to reduce the risk of harm to the public.[footnoteRef:1] Solutions to public health issues may include the government violating individual rights, and when personal freedoms are being limited due to the greater good of the public, certain individuals protest. However, it relies on a necessary and justified framework which not only focuses on prevention, minimisation and containment of health risks but also making sure that these mechanisms aimed at protecting the public are not utilised in maximum capacity instead, it would be aimed at making sure that individual freedoms are only limited in a minimised extent. For instance, according to the Health Act 2006, smoking is banned in public places but not forbidden in an individuals home in the UK. Philosophers like John Stuart Mill argue that as long as an individuals freedom does not intrude on the safety and health of others, their autonomy will not be infringed upon[footnoteRef:2]. For instance, the control of infectious diseases may lead to the government using coercion to limit its spread and ensure the safety of the public. Individual rights may also be limited in situations concerning the protection of incapacitated people as it deals with people who cannot protect themselves, or have insufficient understanding to make informed choices, like children or the mentally handicapped[footnoteRef:3]. [1: G. Lawrence O and L. F. Wiley, Public Health Law: Power, Duty and Restraint. (2016)] [2: Ibid.] [3: T. Murphy, is human rights prepared? Risk, rights and public health emergencies (2009)]
The Legal Framework of Public Health and Individual Rights
Paternalism also involves the state overriding an individuals preference to prevent harm to said individual and the public; it is however argued that competent adults should be allowed to choose what preference they want to emphasise on, and some would rather choose their liberties over health, this leads to the biggest threat to public health which is the tobacco industry. Tobacco is ingrained in human lives globally, has been positively advertised and encouraged by the media and has contributed to the global economy, it was further discussed when it was revealed that the Czech Republic economically benefitted from the effects of smoking[footnoteRef:4]. But, the underlying effects of tobacco has led to the death of more than 8 million people each year globally. According to the World Health Organisation (WHO) 7 million people have died as a result of direct use of tobacco while 1.2 million have died due to being exposed to second-hand smoke[footnoteRef:5]. Thus, the purpose of this essay is to critically assess if the respect for individual human rights at an international and domestic level outweigh the need to safeguard public health, especially regarding the right to smoke . It will highlight through case law and legislation, why putting the health of the greater public above individual human rights is positively sustainable for social progress; leading to the conclusion that no, individual human rights/personal liberties should not outweigh the needs of the broader population when public health is concerned. [4: Reuters, Phillip Morris issues apology for Czech study on smoking (2001) ] [5: WHO, Fact sheet: Tobacco > ]
The Global Tobacco Epidemic: A Public Health Crisis
Good physical and mental health without any limitations or restrictions is a human right. The WHO defined health as the state of physical, mental and social well-being and not just the absence of infirmity or disease . In addition to the WHO definition, there are international human rights and domestic documents/laws which address the need to preserve life and avoid life-threatening risks. They include the Universal declaration of human rights (UDHR), the European Convention on Human Rights (ECHR), the international convention on civil and political rights (ICCPR), the convention on the rights of a child (CRC), the international covenant on economic, social and cultural rights (ICESCR) and so on. The recognition of the right to life is found in article 2 of the human rights act and it states that everyone is entitled to the right to life, which includes the government taking every necessary measure to safeguard life; article 3 of the UDHR, articles 6 of CRC and ICCPR. The right to health found in article 12 of the ICESC identifies the right of everyone to enjoy the highest attainable standard of physical and mental health, it extends further than healthcare and includes a wide range of freedoms like being free from torture and right to prevention, because a healthy society is a progressive one. Since human rights can be positive or negative, and a right to be free from the actions of others that impair ones health, then non-smokers who are victim to second-hand smoking (SHS) can argue that their negative rights are being infringed upon, even if it is done in their private space[footnoteRef:6]. Scientific evidence has proven that there are no safe levels of exposure to smoke on individuals, and the dangers of second-hand smoke, especially to children, is prevalent, as it can lead to health problems like bacterial meningitis, sudden infant death syndrome and respiratory tract infections.[footnoteRef:7] Additionally, since children are not autonomous, they fall under the incapacitated category and therefore need public health legislation to protect them, it could also be argued that being exposed to SHS negatively influences their rights to life and health.
The Framework Convention on Tobacco Control (FCTC) and Human Rights
Thus, the framework convention for tobacco control (FCTC) was drafted, which is the most potent tool for the implementation of tobacco control and was derived from previous international human rights[footnoteRef:8]. The tobacco industry has violated the fundamental human rights like the right to health and life, right to children, right to a healthy workplace to name a few, and although the industry is a non-state actor, a UN report stated that business enterprises owe responsibilities to its consumers and to avoid impacting society negatively through their operations, products and or services even if they have not personally contributed to those impacts[footnoteRef:9]. [6: O. A. Cabrera, Human Rights and the framework on tobacco control: mutually reinforcing systems , (2011)] [7: L. Ann Black, smoking in private vehicles carrying children , (2016).] [8: B. Mason Meier, Breathing Life into the framework convention on tobacco control: Smoking Cessation and the Right to health (2005).] [9: Ibid.]
Balancing Individual Liberties and Public Health Needs
The FCTCs priority is to protect public health whenever tensions arise between individual rights, like restricting smoking in public places as smokers and non-smokers would be protected from SHS. The framework also promotes the right to access information like testing the products and protection from product manipulation, which has been practised by the tobacco industry[footnoteRef:10]. Although the FCTC is more on the soft law side even though it exists under international human rights law, when member states ratify it, they are acknowledging that the tobacco pandemic is a threat to public health and it, therefore, creates measures that state parties should implement. Hence, requiring states to develop laws at domestic level that mimic or meet the minimum standards of the framework which then protects the right to health[footnoteRef:11]. Therefore, the main goal of human rights and public health is to protect the fundamental rights of individuals and in so doing, personal liberties would have to be limited to have an overall healthy society. [10: WHO Framework on tobacco control > https://www.who.int/fctc/cop/about/en/] [11: Ibid.]
Case Law on Smoking and Individual Rights
When it comes to the rhetoric of the pro-smokers and or the tobacco industry, they normally argue that their rights to liberty, recognised in article 3 of the UDHR and the right to self-determination, found in article 1 of the ICESCR as being translated into the right to smoke. However, these cannot be used as arguing points because self-determination can only be interpreted into the right to smoke if smoking is viewed as a way to improve the development of social, economy and cultural rights. But viewing a behavioural preference that is damaging to ones health and others as social development is a baseless argument[footnoteRef:12]. Right to liberty cannot also be used as an argument because some individual rights are disadvantageous to the socioeconomic flourishment of healthcare systems and society, therefore limiting the rights and freedom of individuals would be the only balancing effect. Also, since tobacco has addictive properties arguing the right to liberty would be incompatible as the smoker loses his/her autonomous rights, on if to stop smoking or not. The right to privacy, found in article 8 of the HRA, 12 of the UDHR and article 17 of the ICCPR that no ones privacy, family or home shall be interfered with, is commonly used by pro-smokers to claim the right to smoke [footnoteRef:13]. This will be further illustrated in the following cases; in R v Secretary of state for health[footnoteRef:14], an exemption to indoor smoking restrictions was filed by residents of a hospital. Article 8 was used as a defence and the appellants argued that their right to private life was being infringed upon, however, their request was denied on the basis smoking was beyond the limits of what can be protected in privacy rights. By contrast, in Taylor v the Attorney General[footnoteRef:15], an exemption was permitted about a smoking ban due to the fact that coercing prisoners into nicotine withdrawal was inhumane. In the more recent case of University College London Hospitals NHS Foundation Trust v MB[footnoteRef:16], a patient was asked to leave the hospital due to the COVID-19 situation and was medically fit to be discharged, she refused to leave and claimed her rights under articles 3 and 8 were being violated. It was concluded that article 3 was not violated as the risk of suicide was low nor was article 8 violated because allocating limited state resources fell within the wide margin of appreciation[footnoteRef:17]. Furthermore, an influx of SHS cases regarding the breach of article 3 especially in prisons is prevalent, this can be further explained in the cases Vasilescu v Belgium and Florea v Romania[footnoteRef:18]. Thus, proving that when it comes to public health, individual rights bare less weight. [12: Y. van der Ejik, Human rights and ethical considerations for tobacco-free generation (2015)] [13: Ibid] [14: [2009] EWCA Civ 795] [15: [2013] NZHC 1659] [16: [2020] EWHC 882 (QB)] [17: L. Johnson, Finding a way to possession: UCH V MB (2020)] [18: E. Maes, Legal implications of smoking bans in English prisons , (2018).]
Conclusion: Prioritizing Public Health Over Individual Rights
In conclusion, the legislation and case law discussed above shows that although in a perfect world, individual human rights would be more significant and outweigh public health, the path will not be sustainable in a progressive society. This is because everyone has the right to health and by using the argument of the right to smoke, it not only hinders an individuals personal health, it also hinders that of the public. Additionally, it shows that limitation of individual freedoms does not mean a violation of the right to liberty, privacy, equality or self-determination, it just shows that a right to health and life are more important in the long run. The state has a right to protect its citizens from health threats and smoking is the biggest threat even if it does not portend any imminent threat, as the danger is insidious. Libertarians will argue that individuals own themselves and they have rights to their positive liberties, in contrast, Utilitarian may argue that the right thing to do would be to maximise utility to the maximum population, therefore rooting for social advancement that puts individual rights as a secondary thought. However, the Health act, ECHR, HRA, ICCPR, ICESCR AND THE CRC all protect individual rights, but these rights have the potential of being limited when there is a health threat to the public; normalising the striking of a balance between individual rights and public health is important.
Bibliography
Cases
- Florea v Romania [2017] EWHC 1427
- R v Secretary of State for Health [2009] EWCA Civ 795
- Taylor v The Attorney General [2013] NZHC 1659
- University college London hospitals NHS foundation trust v MB [2020] EWHC 882 (QB)
- Vasilescu v Belgium [2014] ECHR 25
Conventions
- The framework convention for tobacco control 2005
- Health Act 2006
- European convention on human rights 1953
- International covenant on civil and political rights 1966
- International covenant on economic, social and cultural rights 1976
- Universal Declaration of Human Rights 1948
- The convention on the rights of a child 1990
Journal articles
- Benjamin Mason Meier, Breathing Life into the framework convention on tobacco control: Smoking Cessation and the Right to health Yale Journal of Health policy, law and ethics (2005).
- Elise Maes, Legal implications of smoking bans in English prisons , (2018) Cambridge University Press.
- Gostin, Lawrence O and Lindsay F. Wiley, Public Health Law: Power, Duty, and Restraint. (2016).
- Lesley-Ann Black, smoking in private vehicles carrying children , Northern Ireland assembly (2016).
- Lindsay Johnson, Finding a way to possession: UCH V MB (2020).
- Oscar A. Cabrera, Human Rights and the framework on tobacco control: mutually reinforcing systems , (CUP 2011).
- T. Murphy, is human rights prepared? Risk, rights and public health emergencies (2009).
- Yvette van der Ejik, Human rights and ethical considerations for a tobacco-free generation (2015).
Online journals
- Reuters, Phillip Morris issues apology for Czech study on smoking (2001) > https://www.nytimes.com/2001/07/27/business/philip-morris-issues-apology-for-czech-study-on-smoking.html
- WHO Framework on tobacco control > https://www.who.int/fctc/cop/about/en/
- WHO, Fact sheet: Tobacco > https://www.who.int/news-room/fact-sheets/detail/tobacco
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