What the Act says
This right is modelled on Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Australia ratified in 1975. However, the rights in section 37 are narrower than those in Article 12.
Scope of the right
Access to health services
Section 37 guarantees access to health services without discrimination.
Section 37 is not intended to encompass rights in relation to underlying determinants of health, such as food and water, social security, housing, education and environmental factors.
According to the United Nations committee which monitors the implementation of the ICESCR, access to health services involves the following overlapping aspects:
- Non-discrimination: services must be accessible in law and fact, especially to the most vulnerable or marginalised groups, without discrimination.
- Physical accessibility: services must be within safe physical reach for all, especially vulnerable or marginalised groups, children and people with disabilities.
- Economic accessibility (affordability): services must be affordable for all, and poorer households should not be disproportionately burdened with health expenses as compared to richer households.
- Informational accessibility: the right to seek, receive and impart information and ideas concerning health issues, while respecting confidentiality.
Emergency medical treatment
No person can be refused emergency medical treatment that is immediately necessary to save their life or prevent serious impairment.
Health services that are public entities
Only public entities have obligations under the Human Rights Act.
Public entities include Queensland Hospital and Health Services (including public hospitals and community health services) and Queensland Ambulance Service. Some aged care facilities run by Hospital and Health Services are public entities.
Registered providers of supports and registered NDIS providers under the National Disability Insurance Scheme are public entities when providing public disability or health services in Queensland.
Another type of public entity is one that performs functions of a public nature, like public health services, for the State of Queensland or a public entity. A private GP may not be a public entity because they are not providing services on behalf of the Queensland government.
Limitations on the right
This right can be limited by public entities, but only where it is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
Learn more about justification and other obligations on public entities to respect human right.
Case examples
Aboriginal peoples and Torres Strait Islander peoples are advised that this webpage contains sensitive material, including references to deceased First Nations persons and details from a coronial inquest. This content may be distressing and may bring up sadness, grief, or trauma. We encourage readers to take care when engaging with this information and to seek support if needed.
Decision to terminate pregnancy relating to a child
A Queensland health service sought the court’s intervention in relation to a 14-year-old child who was pregnant. Having determined that the child was not competent to consent to termination of the pregnancy, the court considered what decision was in the child’s best interests. The court needed to identify the human rights relevant to this function, and to weigh any competing considerations and their impacts on the child’s human rights.
One of the rights identified was the child’s right to access health services without discrimination, including the right to access sexual and reproductive health services. Having regard to this right and others, the court accepted the risks of continuing the pregnancy were greater for the child than the risks of terminating the pregnancy and made an order permitting termination of the pregnancy as being in the child’s best interests.
Darling Downs Hospital & Health Service v J [2024] QSC 330 (26 August 2024)
Involuntary treatment for electroconvulsive therapy
The appellant appealed a decision of the Queensland Mental Health Review Tribunal to approve his treatment with a course of electroconvulsive therapy (ECT) without his consent.
Rights engaged by a decision to approve electroconvulsive treatment include equality, privacy, liberty and security, humane treatment when deprived of liberty, and access to health services without discrimination. Under a rights-based approach, where reasonable, the views and preferences of a person must be considered, and treatment decisions are not to be based on purely medical grounds but should encompass holistic considerations of the person in their entire personal and social setting.
Under the Mental Health Act, ECT can only be approved by the court if the person cannot give informed consent. The Mental Health Court set out principles relating to informed consent, having regard to human rights. This included that capacity should be assessed by the person’s ability to identify the advantages and disadvantages of options, understand and weigh consequences and make a decision. It did not require careful consideration by the person, or for the person to make a rational or balanced decision.
In this case, the Court found the appellant was not able to give informed consent to ECT and the appeal was dismissed.
In the matter of FYS [2023] QMHC 3 (22 September 2023)
Access to health services limited by hospital
This inquest investigated the deaths of 3 young Aboriginal women from the same remote community in Queensland as a result of rheumatic heart disease. The issues for the coroner included the adequacy of health services and prevention strategies in the community for rheumatic heart disease.
The coroner found that the women’s right to access health services had been limited by:
- the hospital’s failure to provide patients and their families with sufficient information about their health care and treatment, to enable them to fully understand their health conditions and the benefits of treatment, and to appropriately involve families in the provision of health care
- failures in communication between the hospital and the community health organisation leading to problems with follow up
- at times, the hospital did not deliver culturally safe services.
The Coroner’s recommendations went towards addressing these issues.
RHD cluster inquest (Findings of inquest, Coroners Court of Queensland, 30 June 2023)
This information is not intended to be a substitute for legal advice.