Rights to health and to medical interpreting

2.3.1. International legal frameworks on the provision of health care

Over time, the right to physical and mental health has been laid down in various human rights instruments. Access to health is a fundamental human right first internationally acknowledged by the WHO in its 1946 Constitution, which states that:

Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.

The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.

(WHO, 1946)

The right to health was also acknowledged two years later in the 1948 Universal Declaration of Human Rights. Article 25 states that:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (UN General Assembly, 1948)

Under article 12.1 of the 1966 International Covenant on Economic, Social and Cultural Rights adopted by the UN General Assembly, all state parties “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. The explicit mention of mental as well as physical health in the Covenant puts the former on a par with the latter, recognizing

the equal importance of both for a person’s wellbeing. The Covenant further highlights how States have an obligation to prohibit and eliminate all kinds of discrimination regarding access to health, and to ensure equal access to health care for all (The United Nations General Assembly, 1966).

Many countries, however, only recognize migrants’ right to “essential care” or “emergency health care”. As explained in Human Rights Fact Sheets 31: The Right to Health, published by the Office of the High Commissioner for Human Rights (OHCHR), these terms carry different meanings from country to country and their interpretation is “left to individual health-care staff”. According to the OHCHR publication, “practices and laws may therefore be discriminatory” (OHCHR, 2008).

2.3.2. Rights to mental health care

As illustrated above, from its founding the WHO recognized that mental well-being is part and parcel of health. This important statement was even voiced by the first Director-General of the WHO, psychiatrist Brock Chisholm, who famously stated that “without mental health there can be no true physical health” (Kolappa, Henderson & Kishore, 2013, n.p.). In its more recent publications, the WHO describes mental health as the “state of well-being in which an individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and is able to make a contribution to his or her community”, and affirms that “there is no health without mental health”

(“Mental health: strengthening our response,” 2018, para 1).

In 1991, the United Nations General Assembly adopted the Principles for the Protection of Persons with Mental Illness, a series of non-legally binding provisions promoting the rights of mentally disabled persons. Despite their flaws and the criticism they drew (Harding, 2000), these principles and their adoption demonstrate a shift towards understanding the importance of mental health as a right for every individual. These new international human rights instruments promoted a view of

mental health as being essential, intrinsically linked to physical health and a fundamental human right.

In 2006 the UN General Assembly then adopted what is considered to be the most important international instrument on the rights of people with disabilities, the Convention on the Rights of People with Disabilities (CRPD) and its Optional Protocol. It encompasses all individuals regardless of whether their disabilities are physical or mental, and aims to eliminate discrimination against all individuals with disabilities. It established international legal standards in this field and requires the signatory states to the Convention to promote, protect and ensure the full enjoyment of human rights by people with disabilities.

At a European level, the “Mental health declaration for Europe: facing the challenges, building solutions” (also called the “Helsinki Declaration”) of 2005 is a non-binding document specifically focusing on the protection of the rights of people with disabilities. In the Helsinki Declaration, the health ministers of the WHO European Region support the implementation and evaluation of

“policies and legislation that will deliver mental health activities capable of improving the well-being of the whole population, preventing mental health problems and enhancing the inclusion and functioning of people experiencing mental health problems” (WHO, 2005).

This non-exhaustive list of international instruments forms the legal foundation of the recognition of the rights of people with mental disabilities. Their purpose is not just to establish a legal framework, but also to reduce stigma and misconceptions surrounding mental illnesses, notably by “encouraging governments to socialize populations on the importance of equal rights for those with mental disability” (Cameron, 2017, para. 5).

2.3.3. Are there rights to medical interpreting?

Language barriers may hinder an allophone (for example, an immigrant or a refugee)’s access to information on health-related matters and other services available, thus preventing them from realizing their right to preventive, curative and palliative care. Human Rights Fact Sheets 31 “The Right to Health” states that the principle of non-discrimination is a fundamental right. Without it, an individual’s right to health cannot be realized; discrimination leaves the most vulnerable groups of a society facing inequalities, and impedes or nullifies their enjoyment of human rights. Language (along with race, color, sex, language, religion, political or other opinion, national or social origin, property, disability, birth or other status) is identified by the 1966 International Covenant on Economic, Social and Cultural Rights (art 2.2) as possible grounds for discrimination.

While stating that all immigrants and refugees do not speak the host country language would be an unfounded generalization, it is safe to say that not all newcomers to a host country speak its official language. Learning a new language, often from zero, is difficult and takes a great deal of time and energy. Even with intensive language courses, the learning process – up to the point where a newcomer can explain health problems to a health provider – can take months, if not years.

Insufficient proficiency in the language of the host country constitutes one of several barriers that hinder access to care. Experiencing difficulty communicating with health care providers lengthens administrative procedures and, more worryingly, entails risks such as being misunderstood or misdiagnosed (Flores, Abreu, Olivar, & Kastner, 1998; Priebe et al., 2011; Thomas, 2006).

Despite the fact that language barriers may hamper allophones’ enjoyment of their right to health, this issue is not actively taken into consideration by the aforementioned international instruments, meaning that no mention is made of interpreting as a possible solution. There is therefore no legal

requirement for the provision of health care interpreting. At a European level, unlike the field of criminal court proceedings, for which the European Parliament and the Council of the European Union have issued Directive 2010/64/EU on the right to interpretation and translation through the free assistance of an interpreter (Phelan, 2012), there is no legislative equivalent for health care services.

A study conducted by Angelelli (2019) on language assistance in health care in EU law found that none of the four most important documents on European cross-border healthcare address how patients can communicate with medical staff in a different language. In the absence of an official EU legislative framework, decisions on the provision of health care interpreting and other linguistic services in the field are left to member states and their national anti-discrimination laws. Hence, there is no formal framework ensuring systematic access to language assistance for patients, nor are there organizational policies on the provision and use of interpreters in health care.

Moreover, without any legislative framework protecting the budgetary support currently provided to EU countries for interpreting services, this support could be halted at any time. In Denmark, for example, the government decided in 2011 to no longer provide professional health care interpreting services for allophone patients who had been residing for more than seven years in the country (Phelan, 2012). Another similar decision was taken in the Netherlands where, after more than three decades of budgetary support for health care interpreting services, the government announced that as of 2012 it would stop subsidizing this service. Since then, it has been reported that the use of professional interpreters in the country has dropped by 75%, and that they have frequently been replaced by professional interpreters (Hof, 2013). These few examples show that the use of non-professional interpreters is often inevitable and all but uncommon, as explained in the following chapter.