The right to health is the economic, social, and cultural right to a universal minimum standard of health
to which all individuals are entitled. The concept of a right to health
has been enumerated in international agreements which include the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of Persons with Disabilities.
There is debate on the interpretation and application of the right to
health due to considerations such as how health is defined, what minimum
entitlements are encompassed in a right to health, and which
institutions are responsible for ensuring a right to health.
Definition
Constitution of the World Health Organization (1946)
The preamble of the 1946 World Health Organization (WHO) Constitution defines health broadly as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity."
The Constitution defines the right to health as "the enjoyment of the
highest attainable standard of health," and enumerates some principles
of this right as healthy child development; equitable dissemination of
medical knowledge and its benefits; and government-provided social
measures to ensure adequate health.
Frank P. Grad credits the WHO Constitution as "claiming ... the
full area of contemporary international public health," establishing the
right to health as a "fundamental, inalienable human right" that governments cannot abridge, and are rather obligated to protect and uphold. The WHO Constitution, notably, marks the first formal demarcation of a right to health in international law.
Universal Declaration of Human Rights (1948)
Article 25 of the United Nations' 1948 Universal Declaration of Human Rights states that "Everyone has the right to a standard of living
adequate for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary social
services." The Universal Declaration makes additional accommodations for
security in case of physical debilitation or disability, and makes
special mention of care given to those in motherhood or childhood.
The Universal Declaration of Human Rights is noted as the first
international declaration of fundamental human rights, both freedoms and
entitlements alike. United Nations High Commissioner for Human Rights Navanethem Pillay
writes that the Universal Declaration of Human Rights "enshrines a
vision that requires taking all human rights—civil, political, economic,
social, or cultural—as an indivisible and organic whole, inseparable
and interdependent."
Likewise, Gruskin et al. contend that the interrelated nature of the
rights expressed in the Universal Declaration establishes a
"responsibility [that] extends beyond the provision of essential health
services to tackling the determinants of health such as, provision of
adequate education, housing, food, and favourable working conditions,"
further stating that these provisions "are human rights themselves and
are necessary for health."
International Convention on the Elimination of All Forms of Racial Discrimination (1965)
Health is briefly addressed in the United Nations' International Convention on the Elimination of All Forms of Racial Discrimination,
which was adopted in 1965 and entered into effect in 1969. The
Convention calls upon States to "Prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of everyone,
without distinction as to race, colour, or national or ethnic origin, to
equality before the law," and references under this provision "The
right to public health, medical care, social security and social
services."
International Covenant on Economic, Social and Cultural Rights (1966)
The United Nations further defines the right to health in Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights, which states:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
- The reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
- The improvement of all aspects of environmental and industrial hygiene;
- The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
- The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
General Comment No. 14 (2000)
In
2000, the United Nations' Committee on Economic, Social and Cultural
Rights issued General Comment No. 14, which addresses "substantive
issues arising in the implementation of the International Covenant on
Economic, Social and Cultural Rights" with respect to Article 12 and
"the right to the highest attainable standard of health."
The General Comment provides more explicit, operational language on the
freedoms and entitlements included under a right to health.
The General Comment makes the direct clarification that "the right to health is not to be understood as a right to be healthy."
Instead, the right to health is articulated as a set of both freedoms
and entitlements which accommodate the individual's biological and
social conditions as well as the State's available resources, both of
which may preclude a right to be healthy for reasons beyond the
influence or control of the State. Article 12 tasks the State with
recognizing that each individual holds an inherent right to the best
feasible standard of health, and itemizes (at least in part) the
'freedoms from' and 'entitlements to' that accompany such a right;
however, it does not charge the State with ensuring that all
individuals, in fact, are fully healthy, nor that all individuals have
made full recognition of the rights and opportunities enumerated in the
right to health.
Relation to other rights
Like
the Universal Declaration of Human Rights, the General Comment
clarifies the interrelated nature of human rights, stating that, "the
right to health is closely related to and dependent upon the realization
of other human rights," and thereby underscoring the importance of
advancements in other entitlements such as the rights to food, work,
housing, life, non-discrimination, human dignity, and access to
importance, among others, towards the recognition of the right to
health. Similarly, the General Comment acknowledges that "the right to
health embraces a wide range of socio-economic factors that promote
conditions in which people can lead a healthy life, and extends to the
underlying determinants of health." In this respect, the General Comment
holds that the specific steps towards realizing the right to health
enumerated in Article 12 are non-exhaustive and strictly illustrative in
nature.
The inextricable link between health and human rights
Jonathan Mann
was a Francois-Xavier Bagnoud Professor of Health and Human Rights and
Professor of Epidemiology and International Health at the Harvard T. H. Chan School of Public Health.
He was known for being a powerful pioneer and advocate for the
promotion of health, ethics, and human rights, championing the theory
that health and human rights were inextricably interlinked in a dynamic
relationship.
According to Mann, health and human rights are complementary
approaches for defining and advancing human well-being. In 1994,
Jonathan Mann and his colleagues started the “Health and Human Rights Journal” to underline the importance of this inextricable link between health and human rights.
In the first volume of the “Health and Human Rights Journal,”
Jonathan Mann and his colleagues published a transformative article to
explore the potential collaboration in health and human rights. In this
article, Mann et al. describe a framework for connecting the two domains
that are interlinked. This framework is broken into three broad
relationships.
The first relationship between health and human rights is a
political one. Mann and colleagues state that health policies, programs,
and practices have an impact on human rights, especially when state
power is considered in the realm of public health.
Next, the article posits a reverse relationship: that human
rights violations have health impacts. It also calls for health
expertise to help understand how health and well-being can be impacted
by human rights violations through measurement and assessment.
The third segment of the framework linking health and human
rights introduces the concept that the protection and promotion of human
rights and health are linked fundamentally in a dynamic relationship.
While literature has largely supported the first two relationships, this
third hypothesis has not been explored as substantially.
The article supports this concept by stating that this link
suggests there are dramatic practical consequences in the independent
operations of, but also in the interaction in activities of, the
practice of public health and the practice of human rights. There is
what is deemed an interdependence that cannot be negated. Mann and his
colleagues further posit that research, education, experience, and
advocacy are all required to understand this intersection, in order to
understand and advance human well-being globally.
Ultimately, Mann and his colleague’s mission is to convey that,
while individual health has been much of the focus for medical and other
health provision services, especially concerning physical illness and
disability, public health’s focus has more so evolved around how people can be healthy. According to this surprisingly simple definition, public health’s
mission is to promote positive health and prevention of health problems –
disease, disability, premature death. That is, the traditional sense of
individual health as understood and processed by health care services
is “one essential condition for health,” but does is not the sole
qualifier or an exchangeable term with “health.” In other words, health
care services are not sufficient for health, as public health
practitioners understand it – there are external factors that have both
nuanced as well as pronounced positive and negative impact on health and
well-being of the global human population.
Health equity
The General Comment also makes additional reference to the question of health equity, a concept not addressed in the initial International Covenant. The document notes, "The Covenant proscribes any discrimination
in access to health care and underlying determinants of health, as well
as to means and entitlements for their procurement." Moreover,
responsibility for ameliorating discrimination and its effects with
regards to health is delegated to the State: "States have a special
obligation to provide those who do not have sufficient means with the
necessary health insurance and health-care facilities, and to prevent
any discrimination on internationally prohibited grounds in the
provision of health care and health services." Additional emphasis is
placed upon non-discrimination on the basis of gender, age, disability,
or membership in indigenous communities.
Responsibilities of states and international organizations
Subsequent
sections of the General Comment detail the obligations of nations and
international organizations towards a right to health. The obligations
of nations are placed into three categories: obligations to respect,
obligations to protect, and obligations to fulfill the right to health.
Examples of these (in non-exhaustive fashion) include preventing
discrimination in access or delivery of care; refraining from
limitations to contraceptive access or family planning; restricting
denial of access to health information; reducing environmental
pollution; restricting coercive and/or harmful culturally-based medical
practices; ensuring equitable access to social determinants of health;
and providing proper guidelines for the accreditation of medical
facilities, personnel, and equipment. International obligations include
allowing for the enjoyment of health in other countries; preventing
violations of health in other countries; cooperating in the provision of
humanitarian aid for disasters and emergencies; and refraining from use
of embargoes on medical goods or personnel as an act of political or
economic influence.
Convention on the Elimination of All Forms of Discrimination Against Women
Article 12 of the 1979 United Nations Convention on the Elimination of All Forms of Discrimination against Women
outlines women's protection from gender discrimination when receiving
health services and women's entitlement to specific gender-related
healthcare provisions. The full text of Article 12 states:
- States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.
- Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.
Convention on the Rights of the Child
Health is mentioned on several instances in the Convention on the Rights of the Child
(1989). Article 3 calls upon parties to ensure that institutions and
facilities for the care of children adhere to health standards. Article
17 recognizes the child's right to access information that is pertinent
to his/her physical and mental health and well-being. Article 23 makes
specific reference to the rights of disabled children, in which it
includes health services, rehabilitation, preventive care. Article 24
outlines child health in detail, and states, "Parties recognize the
right of the child to the enjoyment of the highest attainable standard
of health and to facilities for the treatment of illness and
rehabilitation of health. States shall strive to ensure that no child is
deprived of his or her right of access to such health care services."
Towards implementation of this provision, the Convention enumerates the
following measures:
- To diminish infant and child mortality;
- To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;
- To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;
- To ensure appropriate pre-natal and post-natal health care for mothers;
- To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;
- To develop preventive health care, guidance for parents and family planning education and services.
The World Health Organization website comments, "The CRC is the
normative and legal framework for WHO’s work across the broad spectrum
of child and adolescent health."
Goldhagen presents the CRC as a "template for child advocacy" and
proposes its use as a framework for reducing disparities and improving
outcomes in child health.
Convention on the Rights of Persons with Disabilities
Article 25 of the Convention on the Rights of Persons with Disabilities
(2006) specifies that "persons with disabilities have the right to the
enjoyment of the highest attainable standard of health without
discrimination on the basis of disability." The sub-clauses of Article
25 state that States shall give the disabled the same "range, quality,
and standard" of health care as it provides to other persons, as well as
those services specifically required for prevention, identification,
and management of disability. Further provisions specify that health
care for the disabled should be made available in local communities and
that care should be geographically equitable, with additional statements
against the denial or unequal provision of health services (including
"food and fluids" and "life insurance") on the basis of disability.
Hendriks
criticizes the failure of the Convention to define specifically the
term "disability"; he contends further that "the absence of a clear
description [...] may prejudice the uniform interpretation, or at least
place in jeopardy the consistent protection the Convention seeks to
guarantee." He does, however, acknowledge that the lack of a clear definition for
"disability" may benefit the disabled by limiting the State's ability to
limit extension of the Convention's provisions to specific populations
or those with certain conditions.
Definitions in academic literature
While most human rights are theoretically framed as negative rights, meaning that they are areas upon which society cannot interfere or restrict by political action, Mervyn Susser contends that the right to health is a particularly unique and challenging right because it is often expressed as a positive right, where society bears an obligation to provide certain resources and opportunities to the general population.
Susser further sets out four provisions that he sees as covered
under a right to health: equitable access to health and medical
services; a "good-faith" social effort to promote equal health among
different social groups; means to measure and assess health equity; and
equal sociopolitical systems to give all parties a unique voice in
health advocacy and promotion. He is careful to note here that, while
this likely entails some minimum standard of access to health resources,
it does not guarantee or necessitate an equitable state of health for
each person due to inherent biological differences in health status.
This distinction is an important one, as some common critiques of a
"right to health" are that it establishes a right to an unreachable
standard and that it aspires to a state of health that is too
subjectively variable from person to person or from one society to the
next.
While Susser's discussion centers on healthcare as a positive
right, Paul Hunt refutes this view and makes the argument that the right
to health also encompasses certain negative rights such as a protection
from discrimination and the right to not receive medical treatment
without the recipient's voluntary consent. However, Hunt does concede
that some positive rights, such as the responsibility of society to pay
special attention to the health needs of the underserved and vulnerable,
are included in the right to health.
Paul Farmer addresses the issue of unequal access to health care
in his article, "The Major Infectious Diseases in the World - To Treat
or Not to Treat." He discusses the growing "outcome gap" between the
populations receiving health interventions and the ones that are not.
Poor people are not receiving the same treatment, if any at all, as the
more financially fortunate. The high costs of medicine and treatment
make it problematic for poor countries to receive equal care. He states,
"Excellence without equity looms as the chief human-rights dilemma of
health care in the 21st century."
Human right to health care
An alternative way to conceptualize one facet of the right to health is a “human right to health care.”
Notably, this encompasses both patient and provider rights in the
delivery of healthcare services, the latter being similarly open to
frequent abuse by the states. Patient rights in health care delivery include: the right to privacy, information, life, and quality care, as well as freedom from discrimination, torture, and cruel, inhumane, or degrading treatment. Marginalized groups, such as migrants and persons who have been displaced, racial and ethnic minorities, women, sexual minorities, and those living with HIV, are particularly vulnerable to violations of human rights in healthcare settings.
For instance, racial and ethnic minorities may be segregated into
poorer quality wards, disabled persons may be contained and forcibly
medicated, drug users may be denied addiction treatment, women may be
forced into vaginal examinations and may be denied life-saving
abortions, suspected homosexual men may be forced into anal
examinations, and women of marginalized groups and transgender persons
may be forcibly sterilized.
Provider rights include: the right to quality standards of
working conditions, the right to associate freely, and the right to
refuse to perform a procedure based on their morals.
Healthcare providers often experience violations of their rights. For
instance, particularly in countries with weak rule of law, healthcare
providers are often forced to perform procedures which negate their
morals, deny marginalized groups the best possible standards of care,
breach patient confidentiality, and conceal crimes against humanity and
torture. Furthermore, providers who do not oblige these pressures are often persecuted.
Currently, especially in the United States, much debate surrounds the
issue of “provider consciousness”, which retains the right of providers
to abstain from performing procedures that do not align with their moral
code, such as abortions.
Legal reform as a mechanism to combat and prevent violations of
patient and provider rights presents a promising approach. However, in
transitional countries (newly formed countries undergoing reform), and
other settings with weak rule of law, may be limited.
Resources and tools for lawyers, providers, and patients interested in
improving human rights in patient care have been formulated.
Criticism
Philip
Barlow writes that health care should not be considered a human right
because of the difficulty of defining what it entails and where the
'minimum standard' of entitlements under the right ought to be
established. Additionally, Barlow contends that rights establish duties
upon others to protect or guarantee them, and that it is unclear who
holds the social responsibility for the right to health.
John Berkeley, in agreement with Barlow, critiques further that the
right to health does not consider adequately the responsibility that an
individual has to uphold his or her own health.
Richard D Lamm vehemently argues against making healthcare a
right. He defines a right as one that is to be defended at all costs,
and a concept that is defined and interpreted by the judicial system.
Making healthcare a right would require governments to spend a large
portion of its resources to provide its citizens with it. He asserts
that the healthcare system is based on the erroneous assumption of
unlimited resources. Limited resources inhibits governments from
providing everyone with adequate healthcare, especially in the long
term. Attempting to provide "beneficial" healthcare to all people
utilizing limited resources could lead to economical collapse. Lamm
asserts that access to healthcare but a small part in producing a
healthy society, and to create a healthy society, resources should also
be spent on social resources.
Another criticism of the right to health is that it is not feasible. Imre J.P. Loefler
argues that the financial and logistical burdens of ensuring health
care for all are unattainable, and that resource constraints make it
unrealistic to justify a right towards prolonging life indefinitely.
Instead, Loefler suggests that the goal of improving population health
is better served through socioeconomic policy than a formal right to
health.
