Right to health in contexts of resource scarcity: towards judicial enforcement of the right to a...
Transcript of Right to health in contexts of resource scarcity: towards judicial enforcement of the right to a...
Right to health in contexts of resource scarcity: towards judicial enforcement of the right to a fair share Siri Gloppen [email protected] (Draft -‐ Centre on Law & Social Transformation Working Paper -‐ CMI/University of Bergen) Abstract Almost all states have ratified international documents committing them to secure the right to “the highest attainable standard of physical and mental health” for all their citizens, and obliging them to pursue this to the maximum of available resources. A growing number of countries have similar commitments in their national constitutions. But what does this mean in practice in terms of health service delivery? What do individuals living in conditions of resource scarcity have a right to? And can this right be meaningfully enforced thorough courts?
This article argues that courts can and should enforce the right to health services, not least in conditions of radical resource scarcity. This requires, however, that the right to health be conceptualized as “the right to a fair share” of the maximum health services that can be provided within available resources. To be able to enforce this effectively, judges must engage the thinking around fair priority setting in health, and seek ways to enforce the right to health that look beyond the individual case and addresses the structural causes of the violations that are placed before them. Commitments to move towards Universal Health Coverage provide opportunities for doing so – and makes judicial engagement urgent. For courts to fill the accountability functions needed to advance the right to health, dialogical approaches are needed, where judges engage health authorities and other stakeholders.
Introduction The right of all human beings to “the highest attainable standard of physical and mental health” is laid down in a range of international human rights documents, including in the Constitution of the World Health Organization (WHO 1946); the United Nations’ Universal Declaration of Human Rights (1948, article 25); the United Nations’ Covenant of Social, Economic and Cultural Rights (ICSECR 1966, article 12); and the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW 1979).1 These documents are signed by almost all states in the world, committing them to respect, protect and pursue the realization of the right to health to the maximum of their available resources, including by seeking and providing international assistance. The right to health is also enshrined in regional documents, including the African (Banjul) Charter on Human and Peoples’ Rights, adopted by the Organization of African Unity (now African Union) in 1982, and the (Maputo) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003). A growing number of countries, including low-‐ and middle-‐income countries have also included right to health provisions in their constitutions. But what does this mean in practice? Can a constitutional or legal commitment to the right to health translate into actual health service delivery? What does individuals living in conditions of resource scarcity have a right to? And can this right be meaningfully enforced through courts? This article argues that courts can and should enforce the right to health services, not least in conditions of radical resource scarcity. Furthermore, it argues that the growing commitment of states to move towards Universal Health Coverage (UHC), which is reflected in WHO policies as well as in the process of establishing the new Sustainable Development Goals (SDGs) can be seen as an expression of a commitment to realize the right to health, and that this provides opportunities – and need -‐ for courts to meaningfully engage with health policy. Adjudication of the right to health is already happening on a large scale, including in low and middle-‐income countries in Latin America, but also in Asia and Africa. But inasmuch as this can be a forceful strategy for enforcing health rights not all extant jurisprudence is equally constructive from the perspective of the right to health. The first part of the article outlines how courts in low and middle-‐income countries have sought to give effect to the right to health in their judgments.
1 Other international conventions that include provisions to respect, protect and promote the right to
The second part of the article argues that in enforcing the right to health, the right should be conceptualized as the right to a fair share of the health services that can be provided within available resources. This concept of the right to heath is well aligned with the goals of moving towards universal health coverage, properly conceived. The third part of the article argues that, based on this conception of the right to health, the courts can and should contribute by adjudicating cases both at individual level and at the level of policy. In terms of adjudicating individual claims, this requires that judges also take account of “potential others” when they decide right-‐to-‐health cases and that they engage the thinking around fair priority setting in health. At the level of policy, it is argued that courts should seek ways to enforce the right to health that looks beyond the individual case and that seeks to address the structural causes of the violation that is placed before it. In the context of a global and national policy commitment to progressively realize the right to health by moving towards UHC, courts can contribute by holding policy-‐makers accountable to this commitment, and by providing accountability mechanisms to secure that the UHC process, as implemented, heed human rights principles and serve to advance the right to health. For courts to engage constructively with issues of health policy, dialogical approaches are needed, where judges engage health authorities and other stakeholders.
Judicial enforcement of the right to health While the right to health is well established in international law, the extent to which international law is enforceable in domestic courts varies. In states with a monist legal system (mainly civil law countries), international obligations, once ratified, are enforceable by domestic courts on a par with domestic law, while in dualist countries, international legal obligations have to be “translated”, that is, enacted into national law, to be enforceable. Many countries in practice fall in-‐between, with courts to varying degrees taking account of international (human rights) law when interpreting laws and constitutional provisions. A growing number of countries, including low-‐ and middle-‐income countries also have right to health provisions in their national constitutions and laws. At least 134 of the world’s constitutions echo the international obligations by establishing a right to health care in some form.2 In some cases this takes the form of guiding principles for policy, or a duty on the state to provide access to basic health care. In other constitutions it has the form of an individual, justiciable right. As we shall see, the right to health has also been found
2 This is according to an online search on the Constitute Project webste, which includes 194 constitutions worldwide. See https://www.constituteproject.org/search?lang=en&key=health
justiciable in countries without an explicit constitutional right to health, and that are not monist in the sense that international law is directly applicable. Most notably, the Supreme Court of India developed its health rights jurisprudence (and social rights jurisprudence more broadly) finding that the right follows from the constitutional obligation to secure the right to life and dignity.3 This approach has since been followed by courts in other parts of the world. While the justiciability of the right to health (and socio-‐economic rights more generally) continues to be debated, in terms of its legal basis; separation of powers and institutional competence issues, as well as on prudential grounds, the question is settled in practical terms as courts in all parts of the world increasingly decide right-‐to health cases, and are developing an extensive health rights jurisprudence.4 This is not least true for low and middle-‐income countries, where the realization of the right to health in practice is vastly unequal. In Latin America, adjudication of the right to health is happening on a massive scale, with a diverse jurisprudence emerging. In Asia, India was a pioneer, with the right to health forming part of the Public Interest Litigation jurisprudence encouraged by the Supreme Court, but other countries in the region have followed suit with Nepal emerging as a pioneer in terms of innovative right-‐to-‐health jurisprudence.5 South Africa has been at the forefront in the development of structural and dialogical approaches to health rights adjudication,6 while jurisprudence is gradually emerging in other parts of the continent, including in Kenya7 and Uganda.8
3 See Upendra Baxi, “Taking suffering seriously: Social action litigation in the Supreme Court of India,” Third World Legal Studies 4 (1985), 4 See Langford, Malcolm, ed. Social rights jurisprudence: emerging trends in international and comparative law. (Cambridge: Cambridge University Press, 2008): Varun Gauri and Daniel M. Brinks (eds), Courting social justice: Judicial enforcement of social and economic rights in the developing world (Cambridge: Cambridge University Press, 2010); Alicia E. Yamin and Siri Gloppen (eds), Litigating health rights: Can courts bring more justice to health? (Cambridge, MA: Harvard Law School Human Rights Program Series with Havard University Press, 2011); Collen Flood and Ayal Gross (eds), The right to health at the private/public divide: A global comparative study (Cambridge: Cambridge University Press, 2014); Octavio LM Ferraz et al. "Judging the price of life: cost considerations in right-‐to-‐health litigation." In Aasen et al (eds) Juridification and Social Citizenship in the Welfare State (E.Elgar 2014), 121; and the journal of Health and Human Rights Special Issue on Health Rights Litigation, Vol 16, no 2 ,December 2014. 5 For the Supreme Court of Nepal’s approach to women’s reproductive rights see Prakash Mani Sharma v. Gov’t of Nepal (SCN, Writ No. 064) 6 See Carole Cooper “South Africa -‐ Health Rights Litigation: Cautious Constitutionalism” in Yamin and Gloppen (eds), Litigating health rights: Can courts bring more justice to health? (Cambridge, MA: Harvard Law School Human Rights Program Series with Havard University Press, 2011); Pieterse, Marius. Can rights cure? The impact of human rights litigation on South Africa's health system. PULP, 2014. 7 See for example PA.O and others v Attorney General and another High Court of Kenya at Nairobi Petition No. 409 of 2009, (Judgment 2012) on access to generic medicines; and Luco Njagi & 21 others v Ministry of Health & 2 others [2015] eKLR on access to dialysis.
Individual claims In Latin America, the vast number of health rights cases before the courts, are brought by individuals who have been denied access to treatment. In many countries these cases began with claims for HIV medication in the late 1990s and have grown exponentially.9 Estimates indicate that Brazil now has the highest number of cases, but with only a quarter of the population, Colombia has by far the highest number of claims per capita, with up to 150 000 access-‐to-‐treatment petitions going to court annually. Other countries in the region with high levels of litigation are Costa Rica and Argentina.10 The typical pattern in the Latin American cases is that health care seekers file an urgent writ of protection (often termed amparo or, in Colombia, tutela) that claims a breech of fundamental rights, and that courts rely on statements from the patient’s doctor to affirm that the denied treatment is needed to effectively treat the patient’s condition. The court will then – almost invariably – grant the treatment, either on the basis of an explicit justiciable right to health in the constitution, or constructing a legal basis for the right to health from the constitutional right to life, holding that the right to health is essential to the right to life with dignity. In line with the civil law tradition, these judgments normally do not have precedential force and in some cases there are thousands of claims for the same type of treatment – including repeated claims from the same patients to continue treatment. This has been most typical in Colombia, where the vast numbers of tutelas seemed to have little systemic effect, beyond the individual cases. Also in Argentina, individual litigation seems to have becomes routinized as part of access to some forms of treatment.11 In other countries, most notably in Costa Rica, but also in Brazil, the health system
8 The High Court of Uganda declared the right to health justiciable in its judgment in the case of Center for Health, Human Rights and Development (CEHURD) and others v Nakaseke District Local Administration (Civil Suit No.111 of 2012, decided 30 April 2015), See for example In many countries, health has mainly been litigated as malpractice cases rather than on the basis of the rigth to health (See for example Chidi A. Odinkalu “The impact of economic and social rights in Nigeria: an assessment of the legal framework for implementing education and health as human rights” in Gauri and Brinks (eds), Courting social justice (Supra note 1). 9 On the role of mobilization around HIV/AIDS in developing right to health litigation see for example Benjamin Mason Meier and Alicia Ely Yamin. "Right to health litigation and HIV/AIDS policy." The Journal of Law, Medicine & Ethics 39.s1 (2011): 81-‐84. 10 See Yamin and Gloppen (eds), Litigating health rights (supra note 3) especially chapters on Colombia, Brazi, Costa Rica and Argenina. 11 See Paola Bergallo 'Routinization'in Individual Coverage Cases?" in Yamin and Gloppen (comps.), Litigating Health Rights (supra note 3); and Unleashing Health Rights in Argentine Courts: From the Myth of Rights to the Politics of Rights. Diss. Stanford University, 2013.
responds quite quickly to court decisions, granting general access to treatments following court decisions that grant individuals access.12 This “litigation pandemic” as it is sometimes termed, has drawn concern and criticism.13 Health administrators and policy-‐makers see it as undermining cost-‐effective health policies and their work to set priorities in a way that allows the available resources to be stretched to provide maximum health care to the population, by making it impossible to deny patient’s access to extremely expensive treatment. Others see it as exacerbating inequalities within the system, by enabling some, and possibly already more advantaged, patients to jump the queue, and channel scarce resources their way. Yet others have argued that such litigation provides an effective avenue for pharmaceutical companies who can easily use it (usually covertly) to effectively promote their drugs. Others have pointed to advantageous effects of these cases: they provide effective redress to a many individuals – including access to services that are guaranteed by existing policies and entitlements, but that for reasons of system malfunctioning are not provided (at all, or in a timely manner, or with adequate quality. In Colombia, such compliance failure cases comprise more than half of the health tutelas). The litigation also serves as an alarm-‐bell, indicating where there are problems in the system – including the failures to provide existing entitlements, but also failures to update the system by considering new forms of treatment – and it provides a democratic function by providing a basis for individuals to interact with the state, and voice their concerns as rights-‐bearers and citizens. Experiences, most clearly from Colombia also show that large numbers of individual claims may allow the judiciary to make more wide-‐raging orders for structural change (more on this later). 14 Increasingly, actors on different sides, acknowledge the positive as well as the potentially negative effects of such individual right to health litigation, and are searching for ways to address some of the weaknesses without loosing the
12 This is in part due to differences in the structure of the health system. Costa Rica has a unified public health system with incentives to adjust structurally rather than respond ad hoc to individual decisions (also because they are forced to pay costs when they loose cases). In contrast, Colombia’s managed competition health care system, where private (and public) insurance companies and service providers are contracted to provide health services, provide few incentives to comply beyond the individual case. See Yamin and Gloppen (eds), Litigating health rights (supra note 3). 13 See Yamin and Gloppen (eds), Litigating health rights (supra note 3). 14 See Yamin and Gloppen (eds), Litigating health rights (supra note 3).
important potential that this litigation harbours.15 I come back to this, but first it is important to note that the growing health rights jurisprudence is much more than adjudication of individual claims.
Public interest cases and structural judgments Claims for protection of the right to health are brought not only by individuals seeking treatment for themselves, but also in the public interest and by groups seeking changes in health policy. Since health systems differ widely –among other in terms of criteria for locus standi, the legal status of the right to health, and the extent to which judgments set precedent for later cases – the way in which public interest cases are brought, differ. They range from prima facie individual cases that are brought as test cases, via collective claims, to direct challenges of policy or legislation. In India, public interest litigation has been common in the health field and has brought significant advances, in terms of access to antiretroviral treatment and other health care services; access to generic mediation; as well as for public health though judgments concerning the right to a healthy environment and the right to food.16 Here the courts have responded with innovative remedies, such as continuing mandamus where the court, in the public interest, retains authority of case to ensure that orders are followed up and implemented. Most notably, in the famous Right to Food case, the Indian Supreme Court has also appointed commissioners to oversee compliance with the judgment.17 In South Africa, cases in the public interest dominate the right-‐to-‐health jurisprudence, after the Constitutional Court (ZACC) famously, denied a dialysis
15 Multi-‐stakeholder dialogues, involving judges as well as ministries of health, health providers, patient organsiations, civil society actors, and academic experts, have been carried out among other under the World Bank’s SaluDerecho programme and this seems to have contributed towards nuancing positions of actors on different sides. See for example the 2011 and 2013 progress reports at http://wbi.worldbank.org/wbi/Data/wbi/wbicms/files/drupal-‐acquia/wbi/english_progress_right_noreg.pdf and http://wbi.worldbank.org/wbi/Data/wbi/wbicms/files/drupal-‐acquia/wbi/English.pdf. 16 See Sharanjeet Parmar and Namita Wahi "India: Citizens, Courts and the Right to Health: Between Promise and Progress?" in Yamin and Gloppen Litigating Health Rights (note 3 supra); Deva, Surya. "Public interest litigation in India: a critical review." Civil Justice Quarterly 28 (2009): 19-‐40; and Singh, Jerome Amir, Michelle Govender, and Edward J. Mills. "Do human rights matter to health?." The Lancet 370.9586 (2007): 521-‐527. 17 PUCL vs Union of India and others (Writ Petition [Civil] No. 196 of 2001). See also the Right to Food Campaign at http://www.righttofoodindia.org/case/case.html and the Supreme Court Commissioners’ web page at http://www.sccommissioners.org
patient’s claim for access to treatment in its very first right to health case.18 The judgment reflects the ZACCs concerns not to become a queue jumping institution, which is an obvious danger in a context where the need for costly treatment is clearly greater than available resources, but at the same time it reflects the court’s desire to show that the right to health, and other socioeconomic rights are in fact justiciable in a meaningful way. The ZACC’s response was to say that, in a context of resource scarcity, patients’ right to health services could not be unlimited, but had to be balanced against the rights of others. To do so requires a three-‐step analysis: firstly, assessing the reasonableness of the policy in place to regulate access to the particular service (in this case, are there criteria for prioritizing patients for dialysis, and are these reasonable); secondly, assessing implementation of the policy and whether resources are used efficiently; and, thirdly; assessing compliance, or whether the patient lodging the case has been fairly treated according to the rules. What the patient is entitled to is in other words due consideration within a fair system. In the Soobramooney case the ZACC found that the policy was reasonable and that the patient had been fairly considered, but failed to satisfy the criteria.19 The ZACC subsequently further developed this analysis in other judgments, most notably in the Grootboom judgment on the right to housing -‐ where it found that there was no policy to covering people in desperate need for shelter, and ordered that this put be in place – and in the famous Treatment Action Campaign case on access to anti-‐retroviral treatment for pregnant mothers, where the court found that to only restrict such treatment to limited test sites was not rational and ordered a roll-‐out of the policy.20 In Latin America, individual cases on the right to health totally outnumber public interest cases and structural judgments, yet the continent probably has the most cases also in the latter category, and some of the courts have developed very interesting remedies. As in India and South Africa, public interest cases in Latin America often address health related issues other than access to medical treatment, such as vaccines, water, sanitation and a healthy environment. Brazilian courts have for example passed more than 250 orders to ensure that municipalities provide
18 Soobramoney v Minister of Health (Kwazulu-‐Natal) (CCT32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (27 November 1997) 19 What the ZACC explicitly did not consider in Soobramooney (nor in later decisions) was whether the overall budget allocation was fair, which is found to be outside its competence. This has been a point of criticism of the court’s jurisprudence. 20 Minister of Health v. Treatment Action Campaign (2002) (5) South African Law Report 721 Right-‐to-‐health related public interest litigation in South Africa has also among other challenged the government’s policy for distribution of antiretroviral medication to prisoners, access to generic medication, and access to water. See Carole Cooper See Carole Cooper “South Africa -‐ Health Rights Litigation: Cautious Constitutionalism and Marius Pieterse, Can rights cure” (both note 4 supra)
access to sanitation.21 By addressing preconditions and social determinants of health affecting millions of poor people, and by demanding changes in policies with a wide reach, each of these judgments potentially affect the lives and health of thousands of people, although studies indicate that compliance is often lacking.22 Argentinean courts ordered have for example ordered the state to ensure production of the Acute Hemorrhagic Fever Vaccine, in the 1998 Viceconte case.23 The 2008 Mendoza judgment,24 ordered municipalities around the Matanza-‐Riachuelo river basin to organize effective cleaning of the river that would address the health hazards that the pollution represented. The latter case is a dialogic judgment, where the different governing bodies are requested, not only to negotiate a solution and report back at regular intervals, but also to consult with a range of stakeholders in the process. Thus the judgment contributed towards changing the understanding of the problem in the affected communities, from being an unfortunate predicament to becoming a rights-‐violation with concrete duty bearers. It has also changed the processes for decision-‐making, with a broader set of actors and potentially changing power-‐relations.25 While physical results in terms of cleaner water, have been slow in materializing, the Matanza-‐Riachuelo River Basin Authority (ACUMAR), which was established as an outcome of the judgment, has developed an ambitious clean up plan that is currently being implemented.26 Such judgements – which seek to address the underlying causes of a structural right-‐to-‐health problem, and orders new policies to be made in a participatory and deliberative process – are found in an increasing number of jurisdictions (including in India, South Africa and Brazil) but the most ambitious example is arguably from Colombia. In Sentencia T-‐760 from 2008, the Colombian Constitutional Court (CCC) reviewed its right-‐to-‐health jurisprudence, developed in response to the vast and
21 For an analysis of 258 court orders to secure access to sanitation in Brazil, and the challneges of implanting these, see Ana Paula de Barcellos. "Sanitation Rights, Public Law Litigation, and Inequality: A Case Study from Brazil." Health and human rights 16 (2014): 2. 22 On the social determinants of health see Michael Marmot and Richard Wilkinson, eds. Social determinants of health. Oxford University Press, 2005. 23 For the Viceconte case (Viceconte, Mariela c. Estado Nacional (Ministerio de Salud y Ministerio de Economía de la Nación) s/ Acción de Amparo.), see Abramovich, Victor, Laura Pautassi, and Victoria Furio. "Judicial activism in the argentine health system: recent trends." Health and human rights (2008): 53-‐65; 24 Mendoza Beatriz Silva et al vs. State of Argentina et al on damages (damages resulting from environmental pollution of Matanza/Riachuelo river). File M. 1569. XL 25 Kristi Innvær Staveland-‐Sæter. "Litigating the right to a healthy environment assessing the policy impact of." CMI Report 2011.6 (2011); and. "Can litigation clean rivers? Assessing the policy impact of." CMI Brief 3 (2012). 26 See for example World Bank “Significant advances in the recovery of the Matanza-‐Riachuelo River Basin”, July 29, 2014 at https://www.worldbank.org/en/news/feature/2014/07/29/avances-‐matanza-‐riachuelo.
growing number of tutelas. Noting a range of structural problems that lead to systematic violations of the right to health, the CCC ordered the Colombian government to reform the entire health system, to do so in a participatory manner, and to regularly report back on progress. Keeping the case open, the CCC has, over the almost seven years since the judgment was handed down, issued almost a thousand follow up orders. While this has caused tension with policy makers, and administrative challenges for the courts, it has succeeded in opening up debates around health policy and the right to health in Colombia in an unprecedented way, and has helped uncovering malfunctioning in the system.27 The picture emerging from this brief tour is that courts around the world are becoming increasingly confident and capable in enforcing the right to health. 28 This has caused optimism in the human rights community, but has also frequently tensions with health policy makers and administrators. Such tensions can be fruitful, but they also raise questions regarding whether all forms of health rights jurisprudence are constructive from the perspective of advancing the right to health in society. In the following, it is argued that this depends on what the concept of the right to health is, that the courts are enforcing.
The right to health as the right to a fair share Many judges, faced with individuals in need of health care services, interpret the right to health to mean the right to whatever (a patient’s doctor decides) is needed for the person to attain the highest possible standard of health.29 The right to health is here understood as an unlimited right to access to whatever prolongs (or improves the quality of) life. Resource scarcity is irrelevant in this perspective, where an underlying premise is that one cannot put a price tag on life. If a life-‐saving treatment for a patient with a rare disease costs two million USD per year, the court will grant it.30
27 See for exmaple Thomas C. Tsai "Second chance for health reform in Colombia." The Lancet 375.9709 (2010): 109-‐110; Yamin, Alicia Ely, and Ariel Frisancho. "Human-‐rights-‐based approaches to health in Latin America." The Lancet (2014); Camila Gianella-‐Malca, Siri Gloppen, and Elisabeth Fosse. "Giving Effect to Children's Right to Health in Colombia? Analysing the Implementation of Court Decisions Ordering Health System Reform." Journal of Human Rights Practice 5.1 (2013): 153-‐176. 28 Norman Daniels, et al. "Role of the Courts in the Progressive Realization of the Right to Health: Between the Threat and the Promise of Judicialization in Mexico." (2015). 29 See Ferraz et al. "Judging the price of life” (note 4 supra) 30 See Ferraz et al. "Judging the price of life” (note 4 supra)
But is this a reasonable interpretation of the right to health in contexts of resource scarcity? In all health systems, technological advances lead to a far greater supply of potentially beneficial treatments, and thus a much higher demand from patients than there are resources to pay for. And the gap is increasing. This means that no society can realize the right to health for all if this is understood as the unlimited right of everyone to access all potentially useful (or all life-‐saving) health services. The resource challenges are obviously more acute in low-‐ and middle-‐income countries, where the resources available for health related spending is less, and where efficient use of these resources often are hampered by poorly functioning and highly unequal health systems. In this context, to view the right to health as an unlimited claim to everything that is physically possible to do to improve an individual’s chance to live/have a more healthy life is unethical. It masks the inevitable trade-‐offs that have to be done at all levels of the health system in spending limited resources, and implicitly discards the right to health of others similarly or worse situated. A more reasonable interpretation of the “right to the highest attainable standard of physical and mental health” is an interpretation where the right is understood as limited by the similar right of others, and where the individual right to health is the right to equal concern and respect and to a fair share of the available resources, within the best possible system. In this perspective the duty of the state is, fourfold:
a) to prioritise health-‐related spending and ensure that the maximum resources possible (including from private and foreign sources) are made available for health purposes (duly balanced against other rights)
b) to create a well-‐functioning health system that makes efficient use of the resources available; that respects the human rights and dignity of all; and that has regulatory frameworks in place to protect citizens’ right from threats by third parties (for example in the form of pollution, or exorbitant drug prices).
c) to ensure that there are fair systems for distributing scarce resources, that do not (dis)favour anyone due to morally irrelevant circumstances.
d) to ensure that the systems are complied with so that each individual receives a fair share and is considered with equal concern and respect
By advancing as rapidly a possibly along the four dimensions, the state fulfils the duty to progressively realize the right to health within available resources. As we will discuss below, the judiciary can play a role in securing accountability for each of the four steps, but first we will pause to consider how this conception of the right to
health aligns with the currant global commitments to moving towards universal health coverage.
Universal Health Coverage The growing commitment of states to move towards Universal Health Coverage (UHC), grew out of the World Health Assembly and is reflected in WHO policies, as well as in the process of establishing the new Sustainable Development Goals (SDGs). The expressed ambitions of UHC is to extend health care31 coverage to uncovered parts of the population, to improve the scope and quality of the services that are provided, and to reduce the risk of financial hardship from seeking medical care.32 To do so, the aim is to develop better health financing systems that can increase the resources available for health related services as well as better systems for prioritising which services should be provided, to whom and under which conditions. From a right-‐to-‐health perspective, UHC can be seen as an expression of commitment to realize the right to health – understood as the right to equal concern and respect, and to a fair share of the maximum available resources. Bu at the same time, UHC has limits and risks that become evident when considered from a right to health perspective. It is narrowly focused on financing and health care services, thus it risks taking focus away from preventive care and the preconditions and social determinants of health. Access to clean water and sanitation, to adequate housing and nutrition are, for example as, or more significant for health outcomes than health care services. A narrow focus on health care services, even if these are extended to poorer parts of the populations, might thus in effect harm the health of poor people if it crowds out social investments improving social determinants of health. The UHC process has also been dominated by technical considerations of financing and coverage models and provide scant opportunities for meaningful participation from health users in the trade-‐offs and choices that need to be made on the path to universal health coverage, including with regard to who and what should be
31 This sometimes seen more narrowly in terms of health insurance coverage. 32 Medical expenses is widely accepted as a main cause of poverty globally. See for example Adam Wagstaff and Eddy van Doorslaer. "Catastrophe and impoverishment in paying for health care: with applications to Vietnam 1993–1998." Health economics 12.11 (2003): 921-‐933; and Maria-‐Pia Waelkens et al. “The Role of Social Health Protection in Reducing Poverty: The Case of Africa (2005)”. ESS Working Paper No. 22. Available at SSRN: http://ssrn.com/abstract=703561 or http://dx.doi.org/10.2139/ssrn.703561.
prioritized first; and on what terms. Accountability-‐mechanisms whereby users can hold policy-‐makers and service providers accountable, are not properly conceived, which is a fundamental flaw from a human rights perspective, where the ability of everyone to claim their rights is at the core.33 To what extent UHC will be able to advance the right to health also depends on the choices that are made in the process. A group of experts in health ethics, priority setting and human rights, mandated by the WHO to reflect on how to make fair choices on the path to universal health coverage, recommends that states should follow a three-‐pronged strategy to progressively realize UHC: 34
1) Categorize services into priority classes (high; medium and low-‐priority services) based on criteria related to cost-‐effectiveness, priority to the worse off, and financial risk protection.
2) First expand coverage for high-‐priority services to everyone.35 3) While doing so, ensure that disadvantaged groups (such as low-‐income
groups and rural populations) are not left behind.
The committee also concluded that there are certain trade-‐offs that are generally unacceptable when moving towards UHC:36 I. To expand coverage for low-‐ or medium-‐priority services before there is near
universal coverage for high-‐priority services. This includes reducing out-‐of-‐pocket payments for low-‐ or medium-‐priority services before eliminating out-‐of-‐pocket payments for high-‐priority services.
II. To give high priority to very costly services whose coverage will provide substantial financial protection when the health benefits are very small compared to alternative, less costly services.
III. To expand coverage for well-‐off groups before doing so for worse-‐off groups when the costs and benefits are not vastly different. This includes expanding coverage for those with already high coverage before groups with lower coverage.
IV. To first include in the universal coverage scheme only those with the ability to pay and not include informal workers and the poor, even if such an approach would be easier.
33 For a discussion of the circle of accountability in realizing the right to health see Alicia Ely Yamin "Toward Transformative Accountability: Applying Rights-‐Based Approach to Fulfill Maternal Health Obligations." SUR-‐Int'l J. on Hum Rts. 12 (2010): 95; and Yamin, Alicia Ely, and Ariel Frisancho. "Human-‐rights-‐based approaches to health in Latin America." The Lancet (2014). 34 See Trygve Ottersen, Ole F. Norheim et al Making Fair Choices on the Path to Universal Health Coverage. Geneva: WHO (2014). The thee points are listed on p ix. 35 “This includes eliminating out-‐of-‐pocket payments while increasing mandatory, progressive prepayment with pooling of funds.” p ix. 36 The following points are quited verbatim from Ottersen et al Making Fair Choices (note 30 supra) pp xi – xii.
V. To shift from out-‐of-‐pocket payment toward mandatory prepayment in a way that makes the financing system less progressive
The committee emphasizes the importance of institutionalizing effective and legitimate mechanisms for public accountability and participation and that, to enable this, a strong system for monitoring and evaluation is needed. These perspectives on how to move towards universal health coverage, to a large extent reflect and echo human rights based approaches, and can provide importance guidance for courts in developing their right to health jurisprudence.
Adjudication on the path to universal health coverage Based on the conception of the right to health as the right to equal concern and respect and a fair share of the maximum available resources, the courts can and should contribute to the process of expanding universal health coverage. However, the courts can and should also maintain a broader perspective on advancing the right to health in society that goes beyond the UHC’s focus on health services, and that also seeks to alter the social determinants of health. The courts can fill these functions by adjudicating cases both at the individual level and at the level of policy. The survey of current advances in right to health litigation in the first part of this article, demonstrate that some courts have come quite a long way in developing adjudicative strategies and remedies that can contribute towards developing judicial accountability for the right to health, understood as fair consideration and a fair share. It also shows that some current forms of adjudication seem counterproductive in this regard. By interpreting the right to health as an unlimited entitlement to needed and potentially useful health services, they run counter to and undermine efforts to balance the needs and rights of each individual with the rights of others similarly placed. The remaining of this paper illustrates ways in which courts can develop right to health jurisprudence that can shape health service delivery in the context of universal health coverage. Point of departure, is the different aspects of the states’ obligations, outlined in points a) -‐ d) above.
a) Judicial accountability for the state’s obligation to prioritise health spending.
States’ right-‐to-‐health obligations under international law demand that they prioritise the progressive realization of the right to health by making available for health purposes the maximum available resources (including from private and foreign sources, and duly balanced against other rights). But can and should courts hold their governments accountable for not prioritizing health sufficiently, for example in their budgets? This is hotly contested. There are different views on what this obligation means in legal terms, as well as strongly divergent views on whether and when courts should decide on budgetary allocations, which many see as lying at the core of the political domain. A judicial accountability function does, however, not necessarily imply a dictate from the courts, which might be seen to encroach unduly upon the separation of powers.37 By requiring political decision makers to account for and justify their allocation of recourses to health relative to other sectors, and provide public reasons for the trade-‐offs made, the courts can exercise a less intrusive, and in this sense “softer”, but still significant dialogical accountability function. In 2001, in the Abuja Declaration, almost all African states pledged to allocate at least 15 per cent of their annual budget to improve the health sector.38 A decade later, only South Africa and Rwanda had met the target. In around half of the states there were improvements in the spending on health, while in the rest there were few changes or a negative development. 39 While the 15 per cent target is a political commitment and not legally binding, it can still be used as part of a dialogic accountability process. Particularly in situations where there are cuts in the health budget, the right-‐to-‐health in international law can be invoked as a basis for questioning the budgetary decisions. The obligation to progressively realize the right to health, implies a principle of non-‐retrogression, or in other words, the government is obliged to at least not reduce the resources available for health, save in very special circumstances. 40 This provides a stronger legal basis for holding governments to
37 For different ways in which accountability can be excercised, see for example Siri Gloppen et al. Responsiveness to the Concerns of the Poor and Accountability to the Commitment to Poverty Reduction. Chr. Michelsen Institute, 2003. 38 African Union. 2001. Abuja Declaration on HIV/AIDS, Tuberculosis and Other Related Infectious Diseases at http://www.un.org/ga/aids/pdf/abuja_declaration.pdf ; 39 According to WHO figures only Rwanda and South Africa had reached 15%. See World Health Organization “The Abuja Declaration: Ten Years On, WHO (2011) at http://www.who.int/healthsystems/publications/abuja_report_aug_2011.pdf?ua=1. 40 Leslie London and Helen Schneider. "Globalisation and health inequalities: Can a human rights paradigm create space for civil society action?." Social Science & Medicine 74.1 (2012): 6-‐13; Alicia Ely
account for budgetary decisions. The courts can thus play an important role as an arena in which civil society actors can demand that the government answers and justifies, or reconsiders its decisions.
b) Judicial accountability for the obligation to ensure a well-‐functioning health system that respects the rights and dignity of all and protects against harm from third parties
Court cases alleging deficiencies and mal-‐functioning of the health care system are common in many health systems, and often take the form of negligence or malpractice claims against individual doctors and health providers. Also cases concerning government hospitals and government policy, and that could have been brought under the right to health, often take the form negligence claims, as these are often easier to argue, or for the courts to comfortably decide. However, from the perspective of the right to health, negligence claims are insufficient, as they generally localize responsibility to individual actors. While individual accountability is important and in some cases may be an adequate response to malpractice, negligence, abuse and mistreatment, the underlying causes are often structural: lack of regulation, poor organisation and supervision structures, inadequate resources etc. By broadening the perspective in such cases to look at underlying causes, judges might use malpractice, neglect, and abuse cases as an opportunity to request structural changes, policy reforms, or new regulation of private actors. Such remedies may, as discussed above, be seen as less intrusive if they are dialogical, where the responsible authorities are asked to make and implement a plan or policy. They may have better chances of being implemented, if supervisory measures are included, for example requesting regular report back. And they may strengthen the participatory aspects of the right to health if they include requirements for user participation in the process. While the main duty bearer for the right to health is the state, private actors also have obligations. A number of countries, including South Africa, have constitutional requirements for horizontal applications of rights, that render it possible to hold private individuals and institutions (such as private hospitals) legally responsible, for example for providing services to indigent patients. And when the government contracts private actors to carry out services on is behalf, the right-‐to-‐health
Yamin, "Beyond compassion: the central role of accountability in applying a human rights framework to health." Health and human rights (2008): 1-‐20.
obligations do not disappear. The state is still responsible for ensuring that the obligation are met. More generally, the government is obliged to protect the right to health though the regulation of private actors (also those not receiving direct or indirect public funds), this potentially includes a wide range of issues, including regulations on pollution, standards of care, medicine prices, requirements for community service for medical practitioners etc.
c) Judicial accountability for the obligation to ensure a fair system for distributing scarce resources
The Soobramoony cases discussed earlier, is one of the first examples of a court demanding accountability from health authorities for their obligations to ensure that there is a reasonable system in place for distributing available (and inevitably scarce) health care resources – a system that is fair in the sense that it is based on reasonable criteria and does not (dis)favour anyone due to morally irrelevant circumstances.41 Which criteria that can legitimate be relied on when prioritising health related resources, is contentious. Criteria that are commonly regarded as reasonable include: seriousness of the health condition; ability to benefit from the treatment provided; and effectiveness and cost-‐effectiveness of the treatment. Social disadvantage/social justice considerations are also widely considered relevant and legitimate to take into account when allocating resource for health, from the perspective that health is a basic social institution and crucial to inclusive citizenship. Others argue that the health system may not be the best place to compensate for injustices in other social domains such criteria, and that, while relevant and important when considering prioritisation for health broadly (including social determinants of health), social disadvantage may not be as relevant when allocating resources for treatment, or health care services narrowly conceived. But given that inequalities in health and inequalities in other domains are so closely intertwined, there are good arguments for taking social justice concerns into account. This includes considering the potential risk that certain forms of out-‐of-‐pocket spending may be catastrophic in terms of pushing people into (deeper) poverty. Other, contested, criteria for allocating resources for health include: age (whether treatments for conditions affecting younger people should receive priority, and/or
41 What are morally relevant circumstances in relation to the right to health, is a contentious issue, but the International Declaration of Human Rights human rights norms list a number of prohibited grounds for discrimination, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. It is hotly contested in many socieities to what extent To what extent criteria such as age; whether a medical condition can be seen as self-‐inflited Criteria that are contested include
whether younger patients should be prioritised for certain forms of treatment); usefulness to society (whether for example mothers with many/small children should be prioritised since their illness/death would affect the life and health of many others; or whether people in productive employment should move up in the queue to get them sooner back into work, thus limiting the costs of their illness to society); ; whether a medical condition can be seen as self-‐inflicted (for example though smoking, excessive drinking or unhealthy eating habits);and ability to pay (whether people who pay (extra) for treatment should be given priority in the waiting list, or be allowed to buy treatment that the health system does not provide as part of a universal health care plan.42) There are also a number of criteria that are generally considered unacceptable as the basis for prioritizing resources. The International Declaration of Human Rights list a number of prohibited grounds for discrimination, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (However, based on principles of affirmative action these grounds can be used as the basis for preferential treatment aiming to rectify excising injustices.) There is in other words no simple answer to the question of what a fair system for allocating scarce health care resources looks like. It needs to be deliberated within each society, in ways that allow all affected parties a voice, and that can thus take account both of cultural specificities, need and reources.43 A good starting point may, however be, the criteria that are most commonly regarded as reasonable, that is the seriousness of the health condition; ability to benefit from the treatment provided; the effectiveness and cost-‐effectiveness of the treatment and social disadvantage. These are the criteria that are reflected in the recommendations by the WHO ethics group, discussed above, that recommended that systems for prioritizing health resources should: 1) To categorize services into priority classes based on criteria related to cost-‐effectiveness, priority to the worse off, and financial risk protection. 2) first expand coverage for high-‐priority services to everyone, and while doing so, 3) ensure that disadvantaged groups (such as low-‐income groups and rural populations) are not left behind. If there is no system in place – or the system is inadequate or illegitimate -‐ the courts can play a crucial accountability function by demanding that a (better)
42 Given that the ability to provide health care is not only a question of money, but also of available skilled human resources, there are concerns that allowing those who can pay preferential access, or allowing private health care services (within public hospitals or in private institutions) drain human resources from the public system. Others hold that this is not a zero-‐sum game and that privately financed health care releases additional human resources. 43 A widely acknowledged model for such a process of accountability for reasonableness is provided by Norman Daniels in "Accountability for reasonableness: Establishing a fair process for priority setting is easier than agreeing on principles." BMJ: British Medical Journal 321.7272 (2000): 1300; see also Norman Daniels and James E. Sabin. "Accountability for reasonableness: an update." BMJ 337 (2008).
system be developed. Again this could involve a dialogical process with the government, where the judiciary is involved in assessing the reasonableness of the plan and its implementation, and also requirements for public participation on the development, implementation and monitoring of the system.
d) Judicial accountability for the obligation to ensure that the system for allocating resources is complied with so that each individual receive a fair share and is considered with equal concern and respect
This, finally, brings us to what the judiciary can do in terms of providing remedies for individual claims for health services, given the premise is that what each of us have a claim to under the right to health, is a fair share. If there is a system for priority-‐setting in place, where treatments and services are categorized into (high/medium/low) priority classes based on criteria related to cost-‐effectiveness, priority to the worse off, and financial risk protection, these priority classes should be taken by judges as the point of departure – if a patient is claiming a high priority service, there would be prima facie reason to grant the claim, while, if she claims low priority services, very strong reasons would have to be provided as to why the case is so special that it deserves to be given priority ahead of other with similar conditions, or who otherwise are given higher priority. This may involve probing whether the priority classification given to a treatment is (still) valid,44 which in turn would require that the judges have access to, among other reliable information on the effectiveness and cost of treatment for different conditions. Some courts have come quite far in this regard, with Costa Rica arguably being the best example. In 2014 it signed a technical cooperation plan with the Cochrane Collaboration that involved all major stakeholders in the health care system and aims to facilitate dialogue between interested health specialists on “equity, efficiency, design and implementation of public policies concerned with prioritization, law, and the judicialization of health.”45 44 As both effectivness assesments and prices change a classification made at one point is not neccssarily right at a later point, with new information. A problem is also that the prices negotiated with parmaseutical companies are often secret, wich makes cost-‐effectiveness analysis difficult. 45 Cited from Norheim, Ole Frithjof, and Bruce M. Wilson. "Health Rights Litigation and Access to Medicines: Priority Classification of Successful Cases from Costa Rica's Constitutional Chamber of the Supreme Court." Health and human rights 16 (2014): 2, available online at http://www.hhrjournal.org/2014/10/02/health-‐rights-‐litigation-‐and-‐access-‐to-‐medicines-‐priority-‐classification-‐of-‐successful-‐cases-‐from-‐costa-‐ricas-‐constitutional-‐chamber-‐of-‐the-‐supreme-‐court/ . See also Federico Augustovski, et al. "Institutionalizing health technology assessment for priority setting and health policy in Latin America: from regional endeavors to national experiences." Expert review of pharmacoeconomics & outcomes research, February 2015, Vol. 15, No. 1, p. 9-‐12 (doi:10.1586/14737167.2014.963560)
Is there anything courts can do for the individual claiming access to health services as a right to health, in the absence of a reasonable system for allocating resources? A basic approach is to ask whether the decision could reasonably be universalized. Would it be reasonable, within the resources that could realistically be made available for health, and in the light of other health priorities, that all similarly situated individuals could be provided access to this service? If the answer is clearly “no”, there are strong arguments for denying the claim, even in the absence of a public system. If the answer is “yes”, or “possibly”, there are strong arguments for the courts to grant the claims, and to underscore that if such claims are to be denied, the onus is on the government to demonstrate that it is doing its utmost to give all a fair share within a fair health system.
In conclusion This article has argued that, since the resources available will always fall short of what is needed to provide everyone with the highest attainable standard of physical and mental health, the individual right to health services mush be understood as not as an unlimited right, but as the right to a fair share. The right to health in this sense is, however, more than a just a fair share of whatever little the government choose to allocate to health, it is a fair share to the best, and most reasonable health system that can be provided within the maximum available resources. This means that the government has obligations at many levels: The government is responsible for making available for the health system as many human and financial resources as possible, including through seeking (aid providing) international assistance. It is responsible for securing that the health system, broadly, is well functioning and that there are systems in place to ensure that services are available, accessible, acceptable and of adequate quality, and that everyone is treated with dignity and respect, and that there are sufficient regulations in place to protect against harm by third parties. The government is also responsible for developing a fair system for prioritising and allocating the available resources for health, and to do so though a fair and inclusive process – and for ensuring that the system is in fact complied with so that each individual can receive a fair treatment and a fair share.
The article has argued that the courts have a crucial role to play in holding governments accountable for the different steps of this process, and has drawn on jurisprudential developments from across the globe to illustrate how this might be done. Fundamentally, adjudicating the right to health in this sense, requires that judges not only see the individual before them, but also take account of “potential others” when they decide right to health cases, and that they apply their mind to questions related to fair priority setting in health. It also requires that courts seek ways to enforce the right to health that looks beyond the individual case and that seeks to address the structural causes of right-‐to-‐health violations. In the context of global and national policy commitments to progressively realize the right to health by moving towards Universal Health Coverage, judges can play a crucial role. Courts can provide an arena for holding policy-‐makers accountable to the UHC commitment, and providing accountability mechanisms for securing that the UHC process, as implemented, heed human rights principles and serve to advance the right to health. On the other hand, the article has argued that judges should be careful in dictating policy solutions. For courts to engage constructively with issues of health policy, dialogical approaches are needed, where judges engage health authorities and other stakeholders, and may set parameters for the process, for example in terms of participation and time, but leave policy-‐making to the other arms of government. Through developing dialogical remedies, that also engage the public in deliberation on health policy problems and solutions, the exercise of judicial oversight and accountability, the courts may not only contribute to better health systems, but also enhance democratic processes, and provide more space for active citizenship in health.