Developing and applying the right to the highest attainable standard of health
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Developing and applying the right to the highest attainable standard of health
The role of the UN Special Rapporteur (2002–2008)
Paul Hunt and Sheldon Leader1
1 Introduction
In 2002, the United Nations established the position of Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (‘right to the highest attainable standard of health’ or‘right to health’). Between 2002–2008, the first appointee, Paul Hunt, submitted some 30 reports on a wide range of right-to-health issues, as well as reports on several States, and GlaxoSmithKline, the major pharmaceutical company (Freeman 2009).
We aim to provide a brief introduction to a few elements of Hunt’s work and also a preliminary response to the critique developed in Upendra Baxi’s contribution to this book. Our aim is both constructive and defensive. Constructively, we signal some of the innovations in thinking about the right to health that have been, and remain, necessary in order to bring the general phrases and principles enunciated in legal instruments into contact with the real world of strategic decision-making and practical implementation. Defensively, we aim to show how Hunt’s approach to the mandate withstands Baxi’s critique.
The first section outlines the evolution of Hunt’s approach to the mandate. The second summarises the framework that he uses to analyse or ‘unpack’ the right to the highest attainable standard of health. The third explores one critical element of this framework: accountability. The fourth introduces the right-to-health features of a health system. Finally, the fifth provides a brief response to Baxi’s critique.
2 Evolving approaches to the UN mandate, 2002–2008
In 2002, the UN Commission on Human Rights adopted a resolution establishing a new ‘special procedure’: the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Commission on Human Rights 2002). Although the Commission had been establishing‘special procedures’ in relation to civil and political rights for some decades, it was not until the late 1990s that it turned its attention to economic, social and cultural rights. The Government of Brazil, supported by other developing countries, drove the initiative to establish a ‘special procedure’ on the right to health. Developed countries, on the other hand, were circumspect. Indeed, two – USA and Australia – voted against the resolution when it came before the UN Economic and Social Council.
The Special Rapporteur is not a member of the UN secretariat, but independent, reporting directly to the General Assembly and Human Rights Council (which recently replaced the Commission). Although supported by the UN secretariat, the position of Rapporteur is unpaid. During his tenure, Hunt raised funds to enable the appointment of a few researchers to assist with the discharge of the mandate.
The Special Rapporteur’s mandate is set out in the founding UN resolution of 2002, as well as some later resolutions (Commission on Human Rights 2002). These long resolutions may be very briefly summarised as requiring the Special Rapporteur to help States better promote and protect the right to the highest attainable standard of health.
After lengthy consultations, especially with civil society and UN bodies, Hunt set out in 2003 his broad approach to the mandate (UN 2003). In brief, he identified three main objectives: to raise the profile of the right to health as a fundamental human right; to clarify the contours and content of the right to health; and to find practical ways of operationalising the right to health. He recognised that these objectives could only be realised with the advice and assistance of a wide range of allies. Crucially, he identified two interrelated themes that would recur throughout his reports: (a) poverty and the right to health (b) discrimination and the right to health.
Like other Special Rapporteurs, his output had three official forms: thematic reports, country reports, and ‘communications’, i.e. letters of complaint. Over six years, he wrote some 30 reports, including annual reports on ‘communications’; all of these are in the public domain. The thematic reports look at issues such as sexual and reproductive health rights, access to medicines (including the duties of States and pharmaceutical companies), mental disability, water and sanitation, maternal mortality, the skills drain, the health-related Millennium Development Goals, and indicators and benchmarks (UN 2004a, 2006a, 2007a, UN 2005c, UN 2004b, UN 2006b). One thematic report publishes Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines (UN 2008c). The country reports are on Mozambique, Peru, Romania, Uganda, Lebanon/Israel (following the war of mid-2006) and Sweden (UN 2005a, 2005d, 2005e, 2006c, 2006d, 2007d). Reports on India and Colombia/Ecuador (regarding the aerial spraying of glyphosate along their common border) are forthcoming. An additional country report looks at donors’ human rights responsibilities of international assistance and cooperation in health by exploring Sweden’s role in relation to (a) Uganda’s health sector and (b) the health-related activities of the World Bank and International Monetary Fund (UN 2008a). Under the rubric of country reports, he also reported on the World Trade Organization, Guantánamo Bay and the pharmaceutical company GlaxoSmithKline (GSK) (UN 2004c, 2006e, 2009). Two of these reports (Guantánamo Bay and Lebanon/Israel) were coauthored with other ‘special procedures’. All of these country reports were preceded by visits to the place or institution in question, except Guantánamo Bay, where the USA imposed unacceptable conditions on the visit (specifically, the authorities refused to allow private interviews with the detainees). All the thematic and country reports were presented, in writing and orally, to either the General Assembly or Human Rights Council/Commission, where they were discussed. When country reports are presented, the relevant Governments have a right of reply. Unfortunately, this facility was not extended to GSK, although the company wished to address the Council after the presentation of the Special Rapporteur’s report. Instead, GSK’s written response to the report was distributed in the Council.
It is not possible here to review the Special Rapporteur’s methods of work, although it should be emphasised that he and his colleagues consulted very widely before preparing either thematic or country reports. These consultations were not only with Ministers, public officials, civil society groups and academics. They also included listening to the most disadvantaged, such as internally displaced people living in the conflict zone of northern Uganda, the inhabitants of remote villages in Peru’s sierra and the bombed-out inhabitants of south Beirut and southern Lebanon.
When reviewing these reports, it is possible to identify some trends and phases in the Special Rapporteur’s approach to the mandate.
Promulgated by the UN Committee on Economic, Social and Cultural Rights (CESCR) in 2000, General Comment 14 represents a critically important stage in the evolution of our understanding of the right to the highest attainable standard of health (CESCR 2000). The General Comment shaped much of the Special Rapporteur’s work. However, as its name suggests, it provides a general analysis of the right to health. Building on this analysis, the Special Rapporteur’s reports endeavour to make the right to health more specific and accessible. Thus, some reports take the analysis provided by General Comment 14 and apply it to specific elements of the right to health, such as access to medicines (UN 2006a). Others apply the General Comment to specific right-to-health issues, such as the skills drain, and specific groups of people, such as those with mental disabilities (UN 2005c, 2005b). Also, country reports apply the Comment’s general analysis to the right to health in specific jurisdictions. It is one thing to talk generally about how health-related facilities and services must be available, accessible, acceptable and of good quality; it is something else to specifically apply that analysis to access to medicines, sanitation, indigenous peoples, and so on.
This specific application of General Comment 14 enabled the Special Rapporteur to develop and refine elements of the analysis set out in general terms in the Comment. For example, while the Comment briefly addresses the controversial issue of international assistance and cooperation, several reports of the Special Rapporteur develop the idea of donors’ human rights responsibilities of international assistance and cooperation in health (UN 2008). The Comment briefly underscores the crucial importance of accountability, while most of the Special Rapporteur’s reports insist upon, consider and apply this vital human rights concept, sometimes in considerable detail, as discussed in Section 4. The Comment devotes two important paragraphs to indicators and benchmarks, and, as we will see, the Special Rapporteur wrote three reports on this issue, the last of which sets out a methodology for a human-rights-based approach to health indicators (UN 2006b). This process of applying General Comment 14 to specific contexts helped to refine the analytical framework for ‘unpacking’ the right to health, which we briefly summarise in Section 3.
The application and refinement of this analytical framework was necessary but not sufficient. Experience showed that some health workers were understandably uncomfortable with the legal and abstract nature of the framework. For example, some did not readily grasp all of the framework’s elements, such as the idea that States have duties to respect, protect and fulfil the right to health. Some found the concept of accountability elusive. For many health workers, the framework remained conceptual, legal and divorced from the realities of public health and medicine. This is a powerful indictment because, without the active engagement and support of many health professionals, the right to health will never realise its potential to reduce suffering and save lives.
This led to closer cooperation with health workers and a revised approach typified, for example, by the reports on Peru and Uganda (UN 2005d, 2006c). The Ugandan report focuses on a single issue: neglected diseases, i.e. those diseases mainly afflicting the poorest people in the poorest communities. The analytical framework set out in General Comment 14, and subsequently refined, informs the Ugandan report, but the report endeavours to be more operational in its discussion about, for example, incentives to encourage health professionals to work in Uganda’s underserved areas; participation and Uganda’s village health teams; the burden placed on the Ugandan authorities by the uncoordinated health interventions of the international community; the need to enhance research and development for neglected diseases; the importance of an integrated health system; accountability and an enhanced role for the Ugandan Human Rights Commission; and so on. As in the Peru report, the framework’s elements are still there – access, accountability and others – but they are applied in a more practical, operational manner. The Ugandan report is also important because it is the first country report to focus on a single issue (neglected diseases), and therefore enables more detailed discussion and recommendations.
Around this time there were other shifts in emphasis in the Special Rapporteur’s approach to his mandate. For example, he began repeatedly to emphasise the common ground between medicine, public health and the right to health; the indispensable role of health workers in the delivery of the right to health; and how the right to health can help health workers deliver their professional objectives. All these arguments are found in the earliest work of the Special Rapporteur but, as the mandate unfolded, they began to have greater prominence (Hunt 2006). If they are to succeed, however, such arguments cannot rely upon excessively legal phrases and abstract analysis that risk alienating many health workers whose primary interest is the formulation and practical implementation of health policies, programmes and projects. At the same time, the empowering, transformative message of human rights must not be sacrificed.
Discussions with health workers revealed another problem. The thematic reports were focusing on specific issues, specific groups of people, and so on. Moreover, some of the country visits were now single issue, such as Uganda (neglected diseases) and India (maternal mortality). While this focused approach brings major advantages, it has a serious drawback: it can lead to a fractured consideration of the right to the highest attainable standard of health, making it more difficult to look at larger, systemic issues upon which the right to health depends. This focused approach was the mandate’s equivalent of narrow vertical health interventions that, without care, can undermine the wider health system. Interestingly, General Comment 14 does not clearly provide a systemic approach to the right to health.
This legitimate criticism of the Special Rapporteur’s approach was one of the factors that led to an examination of health systems from the right-to-health perspective. Also, at last the international community was beginning to recognise that many health systems were failing and collapsing. After years of neglect, the clarion cry was to strengthen health systems. For these and other reasons, the Human Rights Council passed a resolution in 2006 asking the Special Rapporteur to prepare a report on health systems and the right to health (Human Rights Council 2006). Because of its importance, we explore this issue in Section 5.
Throughout his tenure, the Special Rapporteur distinguished between judicially and policy-oriented processes. Although the two approaches are closely related and mutually reinforcing, the former aims to promote and protect the right to health via the elaboration of rules and principles derived from case law, building up general guidance from the lessons learned via the resolution of particular disputes. Judicial and quasi-judicial forms of accountability exemplify this approach. In his reports, the Special Rapporteur frequently insists that the judicial contribution to the right to health should be deepened and become more widespread. We introduce some of the relevant case law in Section 4.
Policy-oriented processes have a different focus: the right to health is brought to bear upon, and integrated into, all relevant local, national and international policymaking initiatives. Whereas the judicial approach is aimed at remedying the existing defective implementation of human rights and rules, the policy approach is more forward-looking. It takes the initiative and helps to build appropriate health policies and programmes, without waiting to see if a court or quasi-judicial body declares that the existing arrangements are deficient. Satisfying the demands of the right to health is still the target, as it is in the judicial approach, but the solution sought by the policy approach comes from developing appropriate health initiatives, not from the resolution of cases brought by victims in vindication of their entitlements. Policies must have the operational procedures and features, as well as health outcomes, arising from the legally binding right to health and subject to judicial and quasi-judicial supervision and enforcement. The policy approach, which led the Special Rapporteur to consider the integration of the right to health into Poverty Reduction Strategy Papers, the health-related Millennium Goals, trade policies, health system strengthening, and so on (UN 2004a, 2004b, 2004c, 2008b), depends upon techniques and tools – indicators, benchmarks, impact assessments, and others – that demand close cooperation across a range of disciplines. Critically, medicine and public health have an indispensable contribution to make to the policy approach. By way of illustration, in Section 5 we signal what happens when the right to health is brought to bear upon policies that aim to strengthen health systems.
The policy approach is not a soft option. For example, as we show in Section 5, it places a legal obligation on policymakers to ensure that health systems include a comprehensive health plan that encompasses the public and private sectors, outreach programmes for the disadvantaged, and so on. The policy approach is not without accountability: it includes a requirement that policymakers are subject to judicial and non-judicial forms of review.
The right to health requires both approaches, and if this fundamental human right is not brought to bear upon local, national and international policymaking, it runs the risk of marginal relevance, surfacing only when, as a last resort, it is argued in courts – institutions that are often inaccessible to the disadvantaged and impoverished.
3 The right-to-health analytical framework
3.1 Overview
As signalled in Section 2, the UNCESCR, Special Rapporteur and many others have developed a way of ‘unpacking’ or analysing the right to health with a view to making it easier for interested parties, such as adjudicators, policymakers and civil society groups, to understand and apply. The analytical framework is made up of ten key elements and has general application to all aspects of the right to health, including underlying determinants of health such as access to water and sanitation. We briefly summarise the framework here, elements of which are used by other contributors to this volume. Nobody suggests that the framework provides answers to some of the complex, critical issues raised by health, such as how to deal with competing health priorities within a finite budget. It addresses a prior, and more elementary, problem: how to move beyond the one-line right-to-health formulations found in legal texts and towards a more detailed understanding of the key components of the right to the highest attainable standard of health. As signalled in Section 2, the framework has to be applied to specific elements of the right to health (e.g. access to medicines); issues (e.g. the skills drain); groups of people (e.g. those with mental disabilities); and those with right-to-health duties, such as States and pharmaceutical companies.
3.2 National and international human rights laws, norms and standards
The relevant laws, norms and standards relevant to the particular issue, programme or policy must be identified. These will include both general provisions and standards relating to the right to health, in addition to international instruments that relate to specific groups and contexts (UN 2003: Annex 1).
3.3 Resource constraints and progressive realisation
International human rights law recognises that the realisation of the right to health is subject to resource availability. Thus, what is required of a developed State today is of a higher standard than what is required of a developing State. However, a State is obliged – whatever its resource constraints and level of economic development – to realise progressively the right to the highest attainable standard of health (UN 1966). In essence, this means that a State is required to be doing better in, say, two years time than it is doing today. The principle of non-retrogression means that there is a (rebuttable) presumption that a State may not backslide. In order to measure progress (or the lack of it) over time, indicators and benchmarks must be identified; for this reason, one of Hunt’s reports provides a human-rights-based approach to health indicators (UN 2006b).
3.4 Obligations of immediate effect
Despite resource constraints and progressive realisation, the right to health also gives rise to some obligations of immediate effect. Sometimes known as core obligations, these include the duty to avoid discrimination, provide essential drugs as defined by WHO, and adopt a comprehensive national health plan of action (CESCR 2000). These are obligations without which the right would be deprived of its raison d’être and as such they are not subject to progressive realisation, even in the presence of resource constraints. The precise scope of these immediate obligations has not yet been clearly defined; for the health and human rights communities, this remains important work-in-progress.
3.5 Freedoms and entitlements
The right to health includes both freedoms (for example, the freedom from discrimination or non-consensual medical treatment and experimentation) and entitlements (for example, the provision of a system of health protection that includes minimum essential levels of water and sanitation). For the most part, freedoms do not have budgetary implications, while entitlements do.
3.6 Available, accessible, acceptable and good quality
All health services, goods and facilities should comply with each of these four requirements (CESCR 2000). An essential medicine, for example, should be available within the country. Additionally, the medicine should be accessible. Accessibility has four dimensions: accessible without discrimination, physically accessible, economically accessible (i.e. affordable), and accessible health-related information. As well as being available and accessible, health services should be provided in a culturally acceptable manner. This requires, for example, effective coordination and referral with traditional health systems. Lastly, all health services, goods and services should be of good quality; a medicine, for example, must not be beyond its expiry date.
There is a similarity between these requirements and the four ‘As’ of public healthcare envisaged by the Declaration of Alma-Ata in 1978: geographical accessibility; financial accessibility; cultural accessibility; and functional accessibility (WHO 1978).
3.7 Respect, protect, fulfil
This subsidiary framework relates to the tripartite obligations of States to respect, protect and fulfil the right to the highest attainable standard of health, as explained and used by CESCR, the Committee on the Elimination of Discrimination Against Women (CEDAW) and the Sub-Commission on the Promotion and Protection of Human Rights (CESCR 2000). A version of this subsidiary framework is also enshrined in the Constitution of South Africa.
The obligation to respect, for example, places a duty on States to refrain from interfering directly or indirectly with the enjoyment of the right to health. The obligation to protect means that States must prevent third parties from interfering with the enjoyment of the right to health. The obligation to fulfil requires States to go beyond the requirement of non-interference by placing a positive requirement on them to adopt the necessary measures, including legislative, administrative and budgetary, to ensure the full realisation of the right to the highest attainable standard of health.
3.8 Non-discrimination, equality and vulnerability
Because of their crucial importance, the analytical framework demands that special attention be given to issues of non-discrimination, equality and vulnerability in relation to all elements of the right to the highest attainable standard of health (CESCR 2000). This might mean, for example, that extra resources are directed to ensure that health-related services are accessible, at a higher cost per head to the state, to both, for example, an ethnic minority living in a remote region and those living closer to metropolitan areas. As we observe in Section 5, equality and non-discrimination are akin to the health concept of equity, and all three components have a social justice component.
3.9 Active and informed participation
Participation is grounded in internationally recognised human rights, such as the rights to participate in the formulation and implementation of government policy, to take part in the conduct of public affairs, and to freedom of expression and association. In the specific context of the right to health, this requires that there be an opportunity for individuals and groups to participate actively and in an informed manner in health-related planning, policymaking, implementation, monitoring and accountability processes that affect them (CESCR 2000). Community participation is one of the themes recurring throughout the Declaration of Alma-Ata. Of course, some traditional elites are likely to resist the active and informed participation of the disadvantaged. Those working on health and human rights have given insufficient attention to participation, which is why a recent monograph by Helen Potts, Participation and the Right to the Highest Attainable Standard of Health, is especially timely (Potts 2009).
3.10 International assistance and cooperation
In line with obligations envisaged in the UN Charter and some human rights treaties, developing countries have a responsibility to seek international assistance and cooperation, while developed States have some responsibilities towards the realisation of the right to health in developing countries (Mesquita 2008). Donors’ human rights responsibilities of international assistance and cooperation in health are explored in several of Hunt’s reports, including the examination of Sweden’s role in relation to (a) Uganda’s health sector and (b) the health-related activities of the World Bank and International Monetary Fund (UN 2008a).
3.11 Monitoring and accountability
The right to health introduces globally legitimised norms or standards from which obligations or responsibilities arise. These obligations have to be monitored, and those responsible have to be held to account. Transparent, effective and accessible accountability mechanisms are among the most crucial characteristics of the right to the highest attainable standard of health. Because of their importance, we devote Section 4 to the critical issue of monitoring and accountability.
3.12 Summary
These ten key elements of the right-to-health analytical framework underscore what the right to health contributes to medicine and public health. For example, the preoccupation with non-discrimination, equality and vulnerability requires a State to take effective measures to address the health inequities that characterise some populations. The focus on active and informed participation requires a State to adopt, so far as possible, a ‘bottom-up’ participatory approach in health-related sectors. The requirement of monitoring and accountability can help to ensure that health policies, programmes and practices are meaningful to those living in poverty.
Crucially, the key elements of the framework are not merely to be followed because they accord with sound management, ethics, social justice or humanitarianism. States are required to conform to the key features as a matter of binding law. Moreover, they are to be held accountable for the discharge of their right-to-health responsibilities arising from these legal obligations.
We will now introduce accountability, one element of the right-to-health framework, and also explore the practical application of the framework to health systems (Section 5). In this way, we endeavour to show the potential of the right to the highest attainable standard of health to empower the disadvantaged and strengthen health systems.
4 Monitoring and accountability
4.1 Overview
Accountability is one of the central features of human rights. Without accountability, human rights can become no more than window-dressing. Whether human rights are applied to development, poverty reduction, trade, health systems, neglected diseases, maternal mortality, HIV/AIDS or anything else, they require that accessible, transparent and effective mechanisms of accountability be established.
Accountability provides individuals and communities with an opportunity to understand how those with human rights responsibilities have discharged their duties. Equally, it provides those with human rights responsibilities the opportunity to explain what they have done and why. Where mistakes have been made, accountability requires redress. In the context of the right to health, redress has many forms, including compensation, restitution, rehabilitation (e.g. the provision of medical or public health services), full and public disclosure, public apology, new legislation, revised policies and programmes, and so on. However, accountability is not necessarily a matter of blame and punishment. Sometimes called ‘constructive accountability’, it may be a process that helps to identify what works, so it can be repeated, and what does not, so it can be revised (Freedman 2003). Effective monitoring is an essential precondition of accountability.
In the context of the right to the highest attainable standard of health, there are many different types of monitoring and accountability mechanisms, including national human rights institutions, Health Commissioners, democratically elected local health councils, public hearings, patients’ committees, impact assessments, judicial proceedings, and so on. A human right as complex and extensive as the right to the highest attainable standard of health requires a range of effective, transparent, accessible, independent accountability mechanisms. The media and civil society organisations have a crucial role to play (Potts 2008; Yamin 2008).
In some States, the private health sector, while playing a dominant role, is largely unregulated. Crucially, the requirement of human rights accountability extends to both the public and private health sectors. Additionally, it is not confined to national bodies; it also extends to international actors working on health-related issues. Accountability mechanisms are urgently needed for all those – public, private, national and international – working on health-related issues.
Although human rights demand accountability, this does not mean that everybody working in health and human rights – all health professionals and specialised agencies – have the task of holding duty-bearers to account. The health and human rights movement needs human rights advisers, implementers and enablers, as well as those whose job it is to hold duty-bearers to account. All these functions will rarely reside in one organisation or individual. For example, while the WHO, UNICEF and UNFPA should be human rights advisers, implementers and enablers, it is not their primary task to hold States to account. The accountability function must be provided by some organisation or person, but probably not by a specialised UN agency, unless the agency decides to establish a discreet independent procedure and body for this purpose.
As already observed, monitoring and accountability is an integral feature of the right-to-health analytical framework that the Special Rapporteur has applied and refined since 2002. Repeatedly, his reports have sought to enhance monitoring and accountability in relation to the right to the highest attainable standard of health. Here, we signal three illustrative components of the Special Rapporteur’s work on monitoring and accountability.
First, the international right to health, and some national right-to-health provisions, are subject to progressive realisation. Thus, it is essential to devise a methodology for measuring and monitoring progressive realisation, otherwise States may use this concept as a way of delaying, or altogether avoiding, their human rights obligations. Accordingly, the Special Rapporteur devotes three reports to the problem of how to measure and monitor progressive realisation, the third of which sets out a human-rights-based approach to health indicators (UN 2006b). No doubt this methodology can be improved, but it is no longer possible for a State to say that it awaits a way of measuring and monitoring the progressive realisation of the right to health. The human-rights-based approach to health indicators helps to deepen the accountability of States, as well as others with health and human rights responsibilities.
Second, national human rights institutions are among the non-judicial mechanisms that have an important role to play in enhancing the accountability of States and others in relation to the right to the highest attainable standard of health. For many years, national human rights commissions, ombudsmen and similar institutions have held authorities accountable in relation to civil and political rights, and they can play a comparable role in relation to economic, social and cultural rights, including the right to health. With an appropriate mandate, as well as the necessary functions, powers, capacity and independence, an ombudsmen-type institution can adjudicate on complaints, conduct public enquiries, promulgate standards, make recommendations and hold accountable those with right-to-health responsibilities. Moreover, national human rights institutions can be more accessible to the disadvantaged than national courts of law.
4.2 Judicial accountability: a selection of health and health-related cases
4.2.1 Overview
The limitations of judicial processes are well known. However, as the following cases illustrate, courts can clarify the meaning of the right to health, as well as other health-related rights, and also secure better health-related services for individuals and communities. While some of the cases rely upon the right to health, focusing on either heathcare (e.g. access to emergency medical treatment) or the underlying determinants of health (e.g. access to uncontaminated food), other decisions rely upon health-related rights, such as the right to life, where interpreted by the courts to mean protecting health. Some of the cases rely upon both the right to health and other health-related rights. The cases are broadly grouped under some of the overlapping, interrelated key elements of the right-to-health analytical framework outlined in Section 3.