Right to Health
What is the right to health? What are the key components of the right to health? What are its limitations and the challenges it faces within a legal order? These are the key questions this entry addresses. The entry first situates the right to health in its historical context. It then sketches the content of the right to health on the basis of its discussion in influential international human rights documents. In a final section, the entry discusses how the right to health has been recognized in national constitutions and what the challenges and possible public health consequences are of judicial enforcement of the right by national courts.
KeywordsHealth Human rights Right to health Constitution Obligations Equality Discrimination Judicial enforcement Social determinants of health
The right to health is increasingly recognized, both internationally and nationally, as a core human right. But even though its history can be traced back to the first international initiatives to promote global health, what it exactly entails, and how and to what extent it can be implemented and enforced, remains somewhat elusive and even more contested. The right to health is one of the so-called socioeconomic human rights and has as such been faced with legal hurdles that affect the enforceability of these rights, in contrast with most traditional civil and political rights. In addition, the multifaceted component of the right to health, its complex intersection with other core human rights, and its association with many social determinants of health add to the complexity of the concept. In this entry, leading international initiatives and growing national health care-related litigation are explored to sketch a broad picture of the kind of obligations governments have in relation to the right to health. Starting from the historical origin of the right to health, this entry discusses the challenge of providing a precise definition, analyzes its key features, and then shows how notwithstanding the growing integration of the right to health in constitutional law, its enforcement by national Courts is not without controversy. Finally, the entry reviews some specific cases that highlight areas where Courts have been instrumental in implementing the right to health.
Historical Origins and Early Recognition of the Right to Health
The right to health has clearly gained more and more traction within the last decades. Its foundation, however, goes back to the early twentieth century, when growing efforts were undertaken at the international level to promote health. The first efforts to implement health through governance initiatives at a global level occurred in direct response to the threat posed to international trade by diseases such as yellow fever and the plague (Toebes 1999). Health became the focus of activities of newly established international organizations aimed at controlling this threat. In 1902, the International Conference of American States established the International Sanitary Bureau, the predecessor to the Pan American Health Organization (PAHO), closely followed by the establishment in Europe in 1907 of an International Office of Public Health, later transformed into the World Health Organization (WHO). Between 1931 and 1937, a shift occurred, particularly in Europe, and health became no longer primarily seen as a security or economic issue. During the “Inter-Governmental European Conference,” for example, participants emphasized that medicine should be at the disposal of all and that the promotion, detection, and treatment of illnesses are key obligations of States (Toebes 1999). After World War II, health became an indispensable component of people’s right to life and the right to enjoy an adequate standard of living. Finally, with the entry into force in 1976 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), health was explicitly recognized as a specific human right, a universal, inherent, and indivisible right. Since then, a growing number of States have come to recognize and codify a human right to health either in constitutional documents, in bills of rights, or through the ratification of international human rights instruments.
The Constitution of the World Health Organization
The first documents related to the WHO conceived of its purpose as an international body capable of developing States’ health system through managed international assistance. The WHO’s “Magna Carta of Health” situated health as a fundamental right; it indicated that States should restrain from restricting access on the basis of “race, religion, political belief, economic or social condition” (Wolff 2012). In its Preamble, the WHO’s constitution offers the first definition of the right to health as the right to “the highest attainable standard of physical, mental and social well-being.” It also recognizes the duty of States to protect and promote health through appropriate health and social policies.
Universal Declaration of Human Rights
Article 25: 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 circumstance beyond his control.
Jonathan Wolff points out the relevant distinction the article makes between medical care and health. This distinction is important since States may have been able to reach high levels of health without much allocation of resources in medical care; conversely, high levels of medical care do not necessarily signify higher enjoyment of health by a population (Wolff 2012). The strong commitment to health as a key component of human rights which the States expressed by adopting the Declaration is clearly a milestone in the development of the right to health.
The ICESCR formulates in its Article 12 the right to health as the right to the “highest attainable standard of physical and mental health” and stipulates also four specific areas where concrete steps have to be taken: the area of childbirth and children’s health care; environmental and industrial hygiene; prevention and treatment of epidemic, endemic, occupational, and other diseases; and “the creation of conditions which would assure to all medical service and medical attention in the event of sickness.” In the context of the latter, it is interesting to note here WHO’s more recent renewed focus on promoting basic health care for all.
Other International Treaties
Since the Universal Declaration, a number of international treaties and declarations integrated health obligations in relation to specific societal groups. The right to health is in these treaties contextualized through connection with the unique challenges some groups have historically faced. This is the case, for example, with the 1989 Convention on the Right of the Child, which recognizes in its Art. 24.1 “the right of the child to the enjoyment of highest attainable standard of health.” Similarly, the 1965 Convention on the Elimination of All Forms of Racial Discrimination (Art. 5, e, iv) and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (Art. 11, 1, f) require States to eliminate racial- and gender-based discrimination in the context of health care. Another more recent and important example is the 2006 Convention on the Rights of Person with Disabilities (Art. 25), which states very explicitly, “persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability.”
Health and subsequently the right to health have also been promoted at the regional level, both through international health-focused organizations and through the implementation of human rights treaties. The Pan American Health Organization, for example, the oldest international public health organization and now an integral part of the Organization of the American States and affiliated with the WHO, aims at providing technical support and leadership to its State members for achieving health for all. Under the leadership of PAHO, its member States shall pursue “health for all” through values of equity, solidarity, respect, and integrity. This will be achieved by eliminating barriers and differences in access that are unnecessary and avoidable enabling collective efforts for the promotion of shared interests and responsibilities regarding health issues, and assuring transparent, ethical, and accountable performance in taking the appropriate measures.
Various regional documents also recognize the right to health, sometimes creating concrete legal recourses within a regional human rights framework. The 1948 American Declaration of the Rights and Duties of Man recognizes in its Article 11 that every person has a “right to the preservation of his health through sanitary and social measures relating to clothing, housing, and medical care, to the extent permitted by public and community resources.” This article departs from the Universal Declaration’s Preamble as it states that the rights recognized are inalienable from persons, and hence, States – in relation to health – shall work towards its preservation to the extent permitted by public and community resources. Furthermore, the article establishes the distinction between medical care, health, and social determinants of health, as it demands from States that they preserve the health of peoples in close relation to ensuring measures directed to such values. It clearly also acknowledges the concrete resource restrictions associated with its implementation. The Inter-American System of Human Rights has enacted subsequently also a different international human rights instrument, in harmony with the International Covenant on Economic, Social and Cultural Rights: the 1988 Additional Protocol of the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (the San Salvador Protocol). This protocol became one of the first in adopting the explicit language of a right to health (Article 10), subjecting it to the standard of “enjoyment of the highest level of physical, mental and social well-being.”
Other regional human rights documents that recognize the right to health include the 1961 European Social Charter and the 1981 African Charter on Human and Peoples’ Rights.
Conceptualization of the Right to Health
The right to health can be conceptualized in different ways. As mentioned, the WHO gave health a broad meaning, framing it as a state of social well-being and not merely the absence of disease or infirmity. Such conceptualization is clearly aspirational in nature and reflects an ideal the WHO and its member States put forward. But the vagueness and all-encompassing nature of the concept of health in this definition makes it difficult if not impossible to link the concept to specific enforceable rights with identifiable limitations. In contrast, the ICESCR defines health in terms of its realization. As is the case with other economic, social, and cultural rights, the concept of progressive realization is key to the right to health. This means that States have to take concrete steps within the constraints of their available resources to gradually implement the right. The concept is tied to specific responsibilities and assigns specific legal obligations to States. The UN Committee on Economic, Social and Cultural Rights (CESCR) has built on this concept to further define the content of the responsibilities and obligations in its highly influential General Comment No. 14 (2000).
UN CESCR General Comment No. 14
General Comment No. 14 asserts firmly that health is a fundamental right, indispensable for and connected to the enjoyment of other human rights. Even though it contains both freedoms (e.g., from nonconsensual treatment) and entitlements, the latter part is clearly the more significant component of the right to health. The realization of the right to health is in part achieved through the protection of other human rights, such as nondiscrimination, food, access to information, freedom of association, or adequate housing, among others. These human rights and the right to health work in synergy. The connection to some of these rights also creates immediate concrete legal obligations for States which are not subject to the notion of progressive realization: regardless of a State’s resources, discrimination in the implementation of health programs, for example, is prohibited.
For the CESCR, the right to health should not be understood as a mere right to be healthy or a right to health care. It is important that the right-holders gain agency and control over their health and body. Thus, for the CESCR, the right to the highest attainable standard of health encompasses a twofold dimension: both the individual’s biological existence and the socioeconomic relationship of the individual vis-à-vis the State. For the CESCR, issues such as violence and gender difference and other determinants of health are to be addressed as components of the realization of the right to health.
CESCR General Comment No. 14 puts forward four components (availability, accessibility, acceptability, and quality) and connects this to three types of obligations the State has with respect to their realization: obligations to respect, protect, and promote the right to health.
In order to enjoy the highest attainable standard of health, a State must provide or make available in sufficient quantity public health and health-care programs, services, goods, and facilities. This also entails securing social determinants of health such as ensuring the availability of essential drugs, safe and potable drinking water, and adequate sanitation in all forms of health-care facilities. The standard of sufficient quantity depends on the State’s development status.
Resource availability and programs should be considered in relation with the ICESCR obligation of States to the “progressive realization” of the right to health. This is understood as the State’s obligation to progressively work towards a health system capable of ensuring access to all.
The right to the highest attainable standard of health can be associated with specific State obligations in connection with its duty to make health care available. If the highest standard of health is understood as the availability of health resources enjoyed by the most advantaged social class within a State, then that level of health-care provision should be considered the minimally realizable standard by a State (Braveman and Gruskin 2003). A different method for a State to achieve progressive realization of availability of resources for health is the creation and publication of indicators and benchmarks. The General Comment No. 14 notes that such indicators should be disaggregated according to prohibited grounds of discrimination. This will allow the State to know if health-related programs, services, goods, and facilities are reaching out to the least advantaged sectors of society and are truly available. Indicators and benchmarks allow for State health polices to be monitored in terms of progression. General Comment No. 14 also emphasizes that States should adopt policies that are the most effective for the construction of a better health system.
Finally, the Committee also points out that the concept of progressive realization contains a prohibition to reduce available resources and programs, especially for the least advantaged sectors of society. In this sense, the highest standard of health concept comes with a concrete obligation to maintain health programs in different sectors of society, even in times of severe resource constraint.
States have to ensure that health facilities, goods, programs, and services are accessible to all without discrimination. The Committee on ESCR identifies how accessibility issues are transversal to other human rights. For instance, the Committee reinforces the importance that a State must ensure that health facilities, goods, programs, and services are accessible especially to the least advantage sectors of society.
On a similar note, a State must ensure that health-related services and goods are to be “within physical reach” of all sectors of society, but especially accessible to the most vulnerable social groups. The Committee on ESCR singles out ethnic minorities, indigenous populations, women, children, adolescents, elderly persons, persons with disabilities, and persons with HIV/AIDS. This alludes again to the obligation on States to reduce the disparities in major social determinants of health between different sectors of society. The right to health entails hereby also a duty of States to overcome current social disparities between sectors of society through the realization of the right to health. The Committee on ESCR further highlights the importance of implementing health services and addressing the social determinants of health in rural populations and of removing physical barriers in health infrastructures to enable persons with disabilities to enjoy health services.
The Committee on ESCR also emphasizes the relevance of affordability of health services, goods, and facilities for the realization of the right to health. An inability to pay for health services and, importantly, for services that are connected to important determinants of health impinges on the right to health. Embedded in the concept of the highest attainable standard of health is the idea that payment of health services or access to health facilities be based on principles of equity, whether health care is realized through a public or private health-care system. Equity requires that health services and facility charges are affordable also for the most socially disadvantaged sectors of society.
Finally, the Committee stresses the interaction between the right to health and the right of access to information. Access to information and seeking, receiving, and imparting information and ideas enable communities and individuals to monitor health, to participate in the realization of health care, and to hold governments accountable for implementing the right to health. But access to information has also some limitations in relation to health care: confidentiality of personal health data is, for example, an important component of the right to privacy in the health-care context.
Acceptability refers, according to the Committee, particularly to the need to be respectful of different cultural traditions of individuals, minorities, or communities. Health-care systems can only be effective and are only sustainable when they reflect or are based on respect for different cultural traditions.
States have obligations to ensure that health care provided is of good quality. This brings with it an obligation to implement a system that ensures that physicians, scientists, and other health-care workers are well trained. The quality component of the right to health also imposes a duty to ensure that medicines, medical devices, and equipment are scientifically validated. In the context of medicines, quality assurance obligations also impose a duty to ensure that products are properly evaluated and not expired.
The detailed discussion of various components of the right to health in General Comment No. 14 highlights the multidimensional nature of the right to health and the open-ended nature of the obligation.
Nondiscrimination and Equal Treatment
As mentioned before, other human rights concepts are connected to the right to health: States have to implement the right with respect to the principles of equality, nondiscrimination, and equity.
This means, on the one hand, that States should not deny access to prohibited discriminatory grounds such as “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, […] disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status.” Under this interpretation, the concept of nondiscrimination serves to ensure that all have equal opportunities to be healthy. Conversely, States should eliminate discrimination in the access to the health system in virtue of belonging to a certain group of society, as well as ensure equal protection under the law (Gruskin and Tarantola 2005).
On the other hand, States should work for the progressive realization of the right to health with special emphasis on reducing disparities in access to health care and access to other components associated with the social determinants of health. Here the concept of equality creates a benchmark to measure health equity and accountability of State efforts. Inequities associated with the major social determinants of health between different social groups can further negatively impact on the enjoyment of the right to health of the already least advantaged (Braveman and Gruskin 2003). The right to health is in this context associated with obligations to ensure equity in the allocation of resources to the health system and social determinants of health, such as securing access to potable water, health infrastructure, and services in rural areas or accessibility policies for health infrastructure for persons with disabilities.
State Obligations Under a Right to Health
The Committee discusses how to apply the normative content of the right to health when identifying State violations resulting from either State actions or omissions. The legal foundation for State obligations resides within the concept of the highest standard of health itself and the duty to take necessary steps to realize the right to the maximum of the State’s available resources. The State’s obligations are generally not immediate and not completely defined. At the same time, States have to do more than enacting laws, or creating benchmarks, or entrenching the right to health in the Constitution. Rather, the right to health requires the States to commit to “financial resources, trained personnel, facilities, and more than anything else: a sustainable infrastructure.” Such interpretation is sensitive to the development realities of every State party to this International Covenant and stresses the focus on obtaining from States a commitment to progressively work towards the respect, protection, and fulfillment of the right to health.
There are, however, also some immediate State obligations regarding the right to health: States have to ensure equal access and exercise of the right to health and the health system, i.e., without discrimination of any kind; and the duty of progressive realization also means, as mentioned, that retrogressive measures that undermine the achieved standard of health are generally unacceptable. Retrogressive measure must be duly justified in relation to all possible alternatives. In addition, it is important to mention here that the CESCR emphasizes that the concept of progressive realization does not exclude the existence of minimum core obligations. In the context of the right to health, States are bound to provide, for example, essential primary health care, essential drugs, and basic sanitation.
States’ obligation to respect the right to health means in the first place that they have to abstain from discriminating or setting barriers that hinder equal access to all. Especially, States should refrain from denying access to those who have been traditionally disadvantaged in enjoying access to health care, such as prisoners, illegal immigrants, asylum seekers, or women. Furthermore, States should also refrain from limiting access to information or medicines on the basis of their impact. For instance, they should abstain from limiting access to contraceptives or other means of sexual and reproductive health, as well as refrain from preventing access or misinforming citizens about health issues, such as in the context of sexual and reproductive health.
However, the Committee does accept that there may be limitations to the right of inhabitants to have their right to health respected. The Committee contemplates health situations where palliative care or access to medications is denied on the basis of exceptional treatment of mental illness or for the prevention and control of communicable diseases.
In sum, the obligation to respect requires from States to abstain from restraining either directly or indirectly the enjoyment of the right to health for all.
Obligations to protect require from States to enact legislation capable of preventing violations to the right to health from non-State actors, such as privately owned health services, private corporations, or medical professionals. Conversely, the State will become responsible for violating its obligation to protect the right to health when it fails to legislatively control activities of individuals, collectives, or corporations that put the right to health of its citizens at risk or harm. In short, obligations to protect demand that States take “measures to prevent third parties from interfering with” the right to health.
Finally, the obligation to fulfill embedded in the ICESCR aims to codify a right to health in the legal order of States. That is, States have measures at the judicial, legislative, and political (national health policy) levels for the implementation and promotion of the right to health. This should not solely be restricted to measures regarding the national health system but also its social determinants of health.
Furthermore, the obligation to fulfill comprises a bundle of other obligations, namely, the obligation to facilitate, to provide, and to promote. Under such framework, States shall take positive measures capable of enabling and assisting individuals and communities to enjoy the right to health. Violations of the obligation to facilitate may include State failure to allocate sufficient resources or budgetary expenditures that might have resulted in the non-enjoyment of the right to health. The obligation to provide alludes to the State’s obligation to make the right to health accessible for sectors of society that have difficulty to realize it on their own. Lastly, the obligation to promote the right to health requires the advancement of research and the provision and dissemination of information, which contribute to the identification of factors that help realize positive health outcomes. It also demands from States the effort to promote the acceptability of their health systems by, for instance, ensuring they are culturally respectful and capable of identifying the pressing needs of disadvantaged societal groups.
Monitoring the Fulfillment of the Right to Health
The Committee emphasizes the importance of developing appropriate monitoring mechanisms, which enable the evaluation of how States fare with respect to the realization of the right to health. The continued evaluation of how States respect their obligations is in the first place important in terms of its accountability towards its citizens. The international community also has an interest in measuring the States’ respect of their right to health-related obligations, to identify possible breaches of the ICESCR.
As a component of democratic decision-making, the citizenry has to be able to weigh whether governments are living up to their obligations. Monitoring is an important feature for the promotion of participation in human rights-related issues and for enabling public debate. Particularly in the context of human rights, civil society plays an important role. Nongovernmental organizations and national human rights-related commissions or ombudsman offices have become key actors for holding the State accountable for implementing measures aimed at respecting, promoting, or fulfilling the right to health or for exposing violations of its obligations (Gruskin and Tarantola 2005).
State Review Process
In the realm of international human rights law, States that ratified international human rights instruments such as the ICESCR must report their compliance and show how they progressively improve the implementation of their obligations (Gruskin and Tarantola 2005). The ICESCR imposes on States an obligation to regularly report, according to the agenda set by the treaty body, on the status of the right to health. This reporting is part of an ongoing dialogue between the organization and the States. In this review process, nongovernmental organizations from the country under review and global health organizations such as relevant units from the WHO, UNAIDS, or UNICEF are allowed to participate. Nongovernmental organizations can participate through the presentation of shadow reports. These reports are the product of the nongovernmental organization monitoring of State compliance with its obligations stemming from the right to health. They reflect what governments are doing as regards the social determinants of health and analyze how health policies, services, programs, and infrastructure impact its population. Global health organizations may report on the performance of the States’ health system. The various submissions help the treaty body to formulate comments and observations. The concluding document states the current compliance of a State to its treaty obligation in connection with the right to health and also includes a series of suggestions for State measures that may allow better compliance. When evaluating State compliance, the treaty body analyzes the follow-up on suggestions it made at earlier reviews and also considers new information (UN Economic and Social Council 1991).
Special Rapporteur on the Right to Health
The Special Rapporteur is another monitoring body established by the UN Commission on Human Rights. Monitoring is not the only role of the Special Rapporteur but is certainly one of the key activities. To that effect, the Special Rapporteur interacts with all actors that are also involved in the national review process. The Special Rapporteur has the mandate to gather, request, and exchange information from all the parties involved in the review process with respect to the realization of the right to health. Similarly, the Special Rapporteur has the power to establish regular dialogue and to promote cooperation between all relevant actors. As an institution, the office of the Special Rapporteur brings together governments, specialized agencies, and programs such as the WHO, nongovernmental organizations, and international financial institutions. As such, the Special Rapporteur’s initiatives contribute to the progressive realization of the right to health through international cooperation and assistance. The Special Rapporteur has also the power to produce reports on the status of the realization of the right to health in various countries and on developments regarding health-related laws, policies, and good practices as well as obstacles that she has encountered in monitoring its State or international application. The Reports of the Special Rapporteur usually contain a mixture of specific recommendations for suitable health-related policies and analyses of a State’s effort to implement an effective and equitable health system (Gruskin et al. 2005).
Challenges for the Recognition and Enforceability of a Right to Health
Neither the presence of specific right to health clauses in national constitutions nor the enforceability of a right to health through national Courts fully determines whether States are in compliance with the international obligations under the ICESCR. These clauses do not necessarily correlate with a country’s implementation of adequate and equitable health-care services (Kinney and Clark 2004). Yet, the constitutional entrenchment of a right to health is obviously an interesting indicator of a State’s explicit commitment to its realization and can also provide useful tools for individuals and civil society to promote compliance.
In the context of an overview of the concept of the right to health, it is interesting to discuss here briefly the extent to which the right to health has been implemented in national constitutions; to give some examples of the way in which health-related rights can be enforced through the Courts, both in countries with and in countries without an explicit constitutional provision; and to highlight some of the challenges this judicial enforcement faces.
Constitutional Recognition of the Right to Health
A majority of countries have introduced in their constitutions some explicit provision related to the right to health (Kinney and Clark 2004). Particularly in the wake of the enactment of the ICESCR, new versions of national constitutions tended to include a bill of rights section with an explicit reference to the right to health. Statements in national constitutions take very different forms (Kinney and Clark 2004). Some statements are merely aspirational in nature, expressing the overall commitment of the State to promote health care. Other provisions create specific entitlements, specifying a general right to health care or citizens’ rights to specific health-related services. Some specify the duties a State has with respect to health care. Still others provide details about how the health-care system in the country will be organized and financed. Finally, some constitutions integrate the right to health with reference to international human rights documents.
Some countries do not have any specific right to health clause in the constitution. Yet, the protection of health-related rights can in such countries still be subject to Court adjudication through the connection with other rights, such as the right to equality or the right to life and security of the person. This is the case, for example, in Canada, which has an established publicly funded health-care system, but no specific right to health provision in its Charter of Fundamental Rights and Freedoms, which is part of its Constitution. Canadians have used the Courts to enforce health-related claims on the basis of other rights, such as the right to “life, liberty and security of the person” (section 7) and the right to “equality before and under the law and equal protection and benefit of law” (section 15).
The Eldridge case illustrates well how Canadians’ right to accessible health care can be protected through its linkage with equality rights (Eldridge 1997). This case involved a challenge by deaf people of a Canadian province’s decision to stop funding sign language translation in hospitals. The Supreme Court ruled that this violated their right to equal treatment under the law, since the absence of sign language interpreters would prevent them from obtaining health-care services other Canadians had access to. The case related to health was not a direct recognition of a right to health care, but a case of “adverse effect discrimination.” The State’s withdrawal of support was preventing access to normally available State-supported health-care services.
In another case that dealt more directly with access to care, the Canadian Supreme Court ruled that the right to “life, liberty, and security” was implicated when State restrictions on private health insurance arguably affected timely access to health-care services. The Chaoulli case involved a man who was eager to have hip replacement surgery (Chaoulli 2005). The petitioners, the man and his physician, had argued that a provincial prohibition on private insurance for medically necessary services made it impossible to avoid the public health-care system’s wait times (Flood 2014). The Court accepted, according to most health policy experts all too easily and relying on superficial and largely anecdotal evidence, that allowing a parallel private sector for health-care coverage would not lead to worse quality services under the public health system.
Challenges of Judicial Enforcement
In both countries with and without constitutional provisions of the right to health, Court interventions in the context of health care have created particular challenges. Enforcement of the right to health in individual cases sometimes creates barriers for the implementation of equitable health-care systems. The Chaoulli case is an interesting illustration of how Courts may not be best placed to evaluate the complexities of health systems and inappropriately impose access to services that may undermine rational health systems design and reasonable resource allocation decisions (Chaoulli 2005).
Judicial challenges based on the right to health or related constitutional rights driven by restrictions individuals face may not take into consideration reasonable health systems constraints and public interest considerations. As stated earlier, individual access decisions do little to reduce the existing gaps in the enjoyment of social determinants of health between the most and least advantaged sectors of society and in promoting systemic improvements to the health-care system as a whole. Commentators have pointed out that judicial enforcement of individual health-related claims may even augment existing inequities in health care. This is particularly the case when access to justice challenges related to the costs of litigation prevents disadvantaged members of society to obtain judicial redress for access to basic health-care services, and privileged members of society use the Courts to force governments to provide access to costly health-care services, such as expensive new cancer therapies or complex surgeries. This has, for example, been a specific challenge in Brazil, where this type of right to health litigation imposed a serious burden on a health-care system that was already struggling to provide basic health-care services to all within serious budgetary constraints. Attempts have been made to limit the negative impact of health right litigation in the country (Mota Prado 2013). In principle, the “progressive realization” component of the right entails that individual rights claims have to be placed in the wider socioeconomic context of the countries in which the claims are made. Yet, the specific formulation of health-related rights in constitutions or other legal instruments, and particularities of the legal system, may facilitate problematic use of litigation strategies.
In contrast to the Canadian Chaoulli decision, the South African Soobramoney decision reflects a more careful judicial assessment of the health systems implications of individual access requests and shows the reluctance of some constitutional Courts to make decisions that would entail significant health-care reallocation decisions (Soobramoney 1997). In this case, a man suffering from chronic renal failure who did not fulfill the criteria for access to kidney dialysis in a publicly funded hospital claimed that the failure to provide dialysis violated his right to “emergency medical treatment” and his “right to life” under the South African constitution. The Court emphatically recognized the very difficult situation the man was facing because of the huge costs of dialysis which he could access in private hospitals, but emphasized the serious financial limitations of the health-care system and the fact that the Constitution explicitly places the obligation of the State in the context of the “available resources.” The Court cautioned against judicial interference in matters where difficult political choices were made based on rational and equitable criteria.
Other examples of “right to health”-related litigation reveal that Courts often manage to evaluate the wider societal context in which such claims are made and that they can reasonably consider the claims in connection with equitable access to health care. This is particularly the case in some of the litigation related to access to lifesaving therapies for already disadvantaged groups. In particular, Courts have been instrumental in improving access to antiretroviral treatment for HIV/AIDS in several low-income countries. Venezuela and South Africa are interesting examples. In the Venezuelan Bermudez case, HIV/AIDS patients challenged the failure of the government to provide access to and coverage for ARV therapies and other drugs for related diseases (Cruz Bermudez 1999). They argued that their right to life, health, and access to scientific advances was violated. Venezuela’s 1961 Constitution contains a right to health clause, and Venezuela ratified the Universal Declaration of Human Rights and the ICESCR. The Ministry of Health invoked budgetary constraints to justify its policies. The Supreme Court emphasized the traditional prejudices and discrimination against people with HIV/AIDS and ruled that equal treatment of the law demands that HIV/AIDS patients enjoy health services required for the preservation of their life as other patients. It also recognized that HIV/AIDS patients have a right to health, and the Constitution offers remedies for the Congress and the Executive to increase resource allocations.
The Bermudez case shows how a positive right to access HIV/AIDS treatment is justiciable under a constitutionally recognized right to health in conjunction with equal protection of the law principle (Cruz Bermudez 1999). Furthermore, it shows some of the trade-offs that the recognition of a right to health represents in terms of the economy of a country and possible remedies.
In a related case, the Treatment Action Campaign v. Ministry of Health (2002), the South African Supreme Court also showed how Courts can ensure access to medicines to vulnerable populations (Treatment Action Campaign 2002). The case dealt with the serious restrictions imposed by the government on the provision of an antiretroviral drug (nevirapine) to HIV-positive pregnant women. Treatment of pregnant women is key to prevent the transmission of the disease to their infants during pregnancy and breast-feeding. The drug was made available only in two research sites per province. As a result, 90 % of pregnant women would not have had access to the drug. The Supreme Court decided that the government’s decision was unreasonable and violated the constitutional right of children to have access to “basic health-care services” and the constitutional right of mothers to have access to “health services, including reproductive health care.” The judgment also contained specific instructions to the government about where medicines had to be made available and about the need for education campaigns and counseling. The Supreme Court rejected the argument that the more general “right to health” provision in relation to health services created an obligation for the government to provide a core set of services. It emphasized that the concept of progressive realization and the reference to “available resources” imposed judicial restraint. But it ruled that the government’s policy in this case, i.e., limiting availability of the drug to a limited number of sites, was not rational. It further emphasized that when it comes to children, there was a positive duty to provide “basic health-care services,” regardless of resource constraints.
The HIV/AIDS decisions have been widely supported. They arguably impact on resource allocation decisions, but in the context of essential lifesaving medicines and in relation to people who are already disadvantaged in society and negatively affected with respect to social determinants of health. Moreover, the South African Treatment Action Campaign case in particular shows that Courts seem well placed to provide a basic check of the reasonableness of the arguments invoked by governments when they hide behind resource allocation arguments to justify their failure in providing basic health-care services (Treatment Action Campaign 2002). Finally, it is worth noting that litigation in the context of access to health care is also often successful when it is connected to other human rights, such as equality rights.
As a socioeconomic right with a particularly open-ended meaning, the implementation of the right to health has faced some difficulties. Yet, in the decades following the integration of “right to health”-related clauses in international and regional human rights conventions, it has become a mainstay in international and national legal and policy debates surrounding the promotion of equitable health care. The ICESCR has been particularly instrumental in formulating the contours of the right to health with its influential General Comment No. 14. It has laid out the concrete obligations States have with respect to the right to health. Even if many of the right to health components are aspirational in nature and with the concept of progressive realization have to be situated in the context of significant existing socioeconomic constraints faced by most countries, there clearly is a recognition that governments have specific obligations in relation to the implementation of health care. At present, the majority of nations have some right to health-related clause in their constitution, and there is a growing body of case law in many countries related to the enforceability of these provisions. In addition, the right to health can often also be linked to other constitutional rights and be enforced through this connection. This is the case, for example, when people are discriminated against the context of health care and obtain access to health care on the basis of equality rights. National Courts are still grappling with the extent to which they can enforce health-related rights without undermining the inevitable resource allocation choices governments have to make in the course of developing equitable health-care systems and trying to fulfill their obligation of progressive realization of the right to health. Even if the right to health remains somewhat hard to circumscribe, it clearly has gained traction as a very important legal and policy tool for the promotion of equitable health care.
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