Treaty of Lisbon Episode IV: The Charter of Fundamental Rights

OK, so I finally stopped procrastenating and wrote this post. Its a short one but there isnt much to say on it without quoting the entire document! The next post on Lisbon will be a surpirse one (in other words, I dont know what it will be about!!!)

The Treaty of Lisbon does two things that will strengthen Human Rights with the EU.

1. It will allow the EU to accede to European Convention for the Protection of Human Rights and Fundamental Freedoms.
2. Will make the Charter of Fundamental Rights legally binding.

The convention is already a long held standard in European Human Rights. Ireland was one of the original signatories of the Convention and it entered force in Ireland on 3/9/1953. The EU accession will make the EU institutions abide by the convention and will allow citizens to take the institutions to the European Court of Human Rights.

On the Charter, this currently is only a proclamation, and has no legal backing. The Lisbon Treaty on the other hand will ensure that it is legally binding.

The EU therefore acquires for itself a catalogue of civil, political, economic and social rights, which will be legally binding not only on the Union and its institutions, but also on the Member States as regards the implementation of Union law. The Charter lists all the fundamental rights under six major headings: Dignity, Freedom, Equality, Solidarity, Citizenship and Justice. It also proclaims additional rights not contained in the European Human Rights Convention, such as data protection, bioethics and the right to good administration. It reaffirms important steps to outlaw discrimination on the grounds of gender, race, sexual orientation and colour. It also mentions social rights applied within companies, e.g. workers’ rights to be informed, to negotiate and take collective action – in other words, the right to strike

Full text of the Charter (PDF) Its only 16 pages long and is quite an informative read

Will the Government act on Article 8 of the ECHR?

Lydia Foy has won her case in the high court which ruled that the state is in breach of Article 8 of the European Convention of Human Rights.

Article 8 states the following

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Now will the Government Act? Under the programme for Government there is no planned Gender Recognition Act. We must also remember, that the Irish Government is not the quickest at remedying the law when it comes to the ECHR. How long did it take to implement the Norris Judgement?

I would love to see the Government bring in an act on this and I will be bringing it up at UCC YFG this week and will try and submit it for Conference.

Should smokers be refused surgery?

Last year a NHS primary care trust announced it would take smokers off waiting lists for surgery in an attempt to contain costs.

The BMJ have two very interesting articles on this.

On the Yes side; Matthew J Peters, associate professor, Department of Thoracic Medicine, Concord Repatriation General Hospital, Concord NSW 2139 Australia;
argues that denying operations is justified for specific conditions

On the No side; Leonard Glantz, professor of health law, bioethics, and human rights, Boston University School of Public Health, 715 Albany Street, Boston, MA 02118, USA; believes it is unacceptable discrimination

The Yes arguements

(Full Article)

Failure to quit smoking before certain elective procedures confers such clinical detriment that to proceed to surgery is ill judged.

Wow, straight off the bat, Peters sets out his opposition.

Smoking up to the time of any surgery increases cardiac and pulmonary complications, impairs tissue healing, and is associated with more infections and other complications at the surgical site. These adverse effects compromise the intended procedural outcomes and increase the costs of care.

This is a good reason, but I’m slow to support cost as an issue, as no cost should be spared in saving someones life.

Such a policy should be limited to procedures where the evidence of harm is strongest. These include plastic and reconstructive surgery and some orthopaedic surgery. A study of experimental sacral incisions of 12-18 mm found that infection occurred in 12% of smokers and 2% of non-smokers. Infection rates in smokers who had quit for four weeks were similar to those in non-smokers. In a study of wound and other complications after hip or knee arthroplasty, no smoker who quit developed a wound infection compared with 26% of ongoing smokers and 27% of those who simply reduced tobacco use. Overall complications were reduced to 10% in those who quit smoking compared with 44% in those who continued.

here, Peters has good reasoning for the refusal in surgery, but at the same time limits it to certain procedures.

With arthroplasty, some of the wound infections were limited to erythema, but 13% of smokers required re-operation because of infection. Such infections have been shown to prolong total hospital stay, double readmission rates, and quadruple costs of orthopaedic surgery. This represents a 38% increase in the direct cost of care for each smoker having surgery. In the arthroplasty study the intervention group had an average length of hospital stay of 14 rather than 11 days.

So in other words, you smoke and have an operation, you will be in hopsital longer. Again cost is being brought in, but dont smokers pay enough tax, so they deserve the treatment?

Increased use of hospital beds and associated costs mean less opportunity to treat other patients. Based on these data, five non-smokers could be operated on for the cost and bed use of four smokers and the non-smokers’ surgical outcomes would be better. A well informed smoker, unwilling or unable to quit, might assume an increased risk for himself, but the decision is not his alone when it can indirectly affect others. Then, the community must involve itself.

Here the fact that 4 non-smokers could be treated in the time it takes to treat a smoker, Peters attempts to make it a community issue.

With surgery that is done for purely cosmetic purposes, the increase in the risk and consequences of wound infection or fat necrosis from smoking is unacceptable and surgery is illogical

Here I assume, the surgery is private as it is cosmetic, that the extra cost will be borne by the patient.

The No Arguments

(Full article)

One of the noblest things about the profession of medicine has been its single minded devotion to patients. Doctors routinely treat patients who are despised by the society in which they live—enemy troops, terrorists, murderers. Given this, it is astounding that doctors would question whether they should treat smokers.

Glentz is straigvht off with the hipocratic oath, seams to me he has the upper groud from the start due to this.

Tobacco companies used to win every lawsuit brought against them by diseased smokers because they successfully argued that smokers knowingly and voluntarily assumed the risks of smoking—if smokers do not want to incur the well known risks of smoking they should simply stop.

But the 1988 US Surgeon General’s report on the addictive nature of cigarette smoking gave plaintiffs’ lawyers a way to rebut this argument.1 Smokers could now be portrayed as enslaved by the tobacco companies and incapable of stopping smoking because of their addiction. As a result, smokers did not voluntarily incur the risk of smoking but rather did so involuntarily because of their addiction. It is not without some irony that surgeons who refuse to perform operations on patients unless they stop smoking make the same argument that cigarette companies used—if smokers don’t want to incur the adverse effects of smoking, including refusal of surgery, they should quit.

wow, huge rubuking of surgeons here, comparing them with tobacco companies if they refuse to carry out surgery. He has a point though. Glentz refers to the Surgeon General’s 1988 report which should also force the doctors to carry out these operations.

Assuming we can accurately determine who falls into the class of smoker (is it someone who smokes 40 cigarettes a day, 10 a day, or the occasional cigar?), the idea of doctors treating all smokers the same way runs directly counter to the practice of medicine. This requires an individualised evaluation of each patient to determine the appropriateness of a treatment regimen. Evidence exists that smokers are at an increased risk of postsurgical complications compared with non-smokers, and when smokers stop smoking before surgery their risks of complications decrease. But those same data show that most smokers who have surgery have no complications, and a policy denying all smokers access to surgical procedures arbitrarily denies beneficial treatment to those who would have had no complications.

Here Glentz realy goes in for the kill, how do you define a smoker? Some smokers wont get infections, so maybe you wont treat 4 non-smokers in the same time-frame

Withholding surgery from smokers also distorts the modern doctor-patient relationship, which is based on partnership. Doctors determine the risks and benefits of treatment, inform the patients of these facts, and patients then decide whether to incur the risks to gain the benefits. This applies equally to smokers and non-smokers. Doctors should certainly inform patients that they might reduce their risks of postsurgical complications if they stop smoking eight weeks before the procedure. There is every reason to believe many patients would follow their doctors’ advice. The question is, “Should the price of not following the doctor’s advice be the denial of beneficial surgery?” Should someone who was crippled by arthritic knee pain be denied surgery because she would knowingly and willingly take an increased risk of incurring postsurgical complications? If the decision whether to take an increased risk is not left to patients, they are likely to lie to their doctors about their smoking. This deception, of course, will make us unable to help smokers who wish to stop but fear the repercussions of disclosing their smoking to their doctors.

Most people value the doctor-patient relationship due to confidentiality etc, so if you cannot trust your doctor that he will operate on you because you are a smoker, why trust him?

An argument made to support the discriminatory non-treatment of smokers is that increased complications lead to additional expenditures that could be avoided if smokers would simply stop smoking. But why focus our cost saving concerns on smokers in the context of surgery? Do patients have a general obligation to get healthy as a condition of receiving treatment? Patients are not required to visit fitness clubs for eight weeks, lose 25 pounds, or take drugs to lower blood pressure before surgery.

Many non-smokers cost society large sums of money in health care because of activities they choose to take part in. “Baby boomers” in the United States lost 488 million days of productivity in 2002 because of sports injuries. From 1991-8 sports related injuries in this age group increased 33% and cost about $18.7bn (£9.6bn; 14bn) a year in medical costs alone.3 We could reduce healthcare expenditure by simply refusing to pay for treating any injuries related to voluntary participation in sports. Let them suffer their painful knee condition which is entirely their fault. Indeed, if we treat a sports injury that person is likely to risk incurring future costly sports injuries. But we don’t even think this let alone suggest it.

Here is a great arguement for ignoring the cost arguement and i agree completely.

Discriminating against smokers has become an acceptable norm. Indeed, at least one group of authors who believe smokers should be refused surgery blithely admits that it is “overtly discriminatory.”4 The suggestion that we should deprive smokers of surgery indicates that the medical and public health communities have created an underclass of people against whom discrimination is not only tolerated but encouraged. When the World Health Organization announced that it would no longer employ anyone who smokes, public health and medical communities did not respond to this act of blatant bigotry.5 6 Similarly, it is shameful for doctors to be willing to treat everybody but smokers in a society that is supposed to be pluralistic and tolerant. Depriving smokers of surgery that would clearly enhance their wellbeing is not just wrong—it is mean.

In the final paragraph Glentz puts the nail in the coffin. Discrimination. Though not mentioned, under Article 1 of Protocol no. 12 of the European Convention of Human Rights

1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.


The NHS is a public authority so therfore I assume that smoking would come under ‘other status’ as it is a choice, or addiction. It is not tested in the European Court of Human Rights but it would be an interesting case.

I think the No side wins this arguement. well its the side I agree with.

State to let transsexuals alter gender in passports

Via The Irish Times and USI LGBT

Transsexuals will be able to have their gender changed in new Irish passports in what will be the first statutory recognition of transgender rights in Irish legislation.

However, the change comes as the State contests a landmark case in which a transsexual is trying to have her birth certificate changed from male to female.

Dr Lydia Foy, a dentist from Kildare in her 50s, was born a male, married and fathered two children before undergoing gender realignment surgery almost 15 years ago. Dr Foy, whose marriage ended in the 1990s, changed her name by deed poll in 1993.

The case will raise significant issues about the legal recognition and rights of Irish transsexuals. It is due to be heard in the High Court in April next year.

Dr Foy is expected to argue that refusal of the State to change her birth certificate is in breach of her rights as recognised under the European Convention on Human Rights.

The High Court ruled against her in 2002. However, just two days after the judgment, the European Court of Human Rights found in favour of British transsexual Christine Goodwin who claimed the UK’s refusal to allow her to amend her birth certificate violated rights guaranteed by the European Convention on Human Rights.

Dr Foy’s renewed legal attempt to overturn the State’s refusal to change her birth certificate follows Ireland’s ratification of the convention and other significant legal developments in this area.

Solicitor Michael Farrell of the Free Legal Advice Centres – which supports Dr Foy’s High Court application – yesterday said he welcomed the State’s decision to provide greater recognition of transsexuals in the form of new passports. However, he said much more needed to be done to provide proper recognition of transgender citizens.

“We are very out of line with the rest of Europe on this issue,” he said.

The State’s watchdog on human rights, the Irish Human Rights Commission, has also welcomed plans to provide for transgender passports.

The Passports Bill allows an applicant who has undergone or who is undergoing treatment to change their sexual characteristics, to change the name and gender entered in their passport.

In a statement, the human rights commission said: “This section of the Bill addresses important questions relating to the right to respect for private and family life, issues which have recently been considered in detail by the European Court of Human Rights.”

Excellent news for Transexuals in Ireland, but still a long way to go. best of luck to Lydia Foy in Europe!