Health Systems and the Right to the Highest Attainable Standard of Health

Chapter 4

Health Systems and the Right to the Highest Attainable Standard of Health*

Paul Hunt and Gunilla Backman

The right to the highest attainable standard of health depends upon the interventions and insights of medicine and public health. Equally, the classic, long-established objectives of medicine and public health can benefit from the newer, dynamic discipline of human rights. At an abstract level, a few far-sighted people understood this when the World Health Organization (WHO) Constitution was drafted in 1946, and the Declaration of Alma-Ata was adopted in 1978, which is why both instruments affirm the right to the highest attainable standard of health. The Ottawa Charter of Health Promotion of 1986 also reflects the connections between public health and human rights.

However, these connections were general and abstract. At the time, the right to the highest attainable standard of health was only dimly understood and attracted limited support from civil society. It was little more than a slogan. Others have surveyed the evolution of health and human rights since Alma-Ata and Ottawa, and we will not repeat this exercise here.¹

One vital part of this evolutionary process has been a deepening understanding of the right to the highest attainable standard of health. Although neglected in much of the literature, this fundamental human right must surely be the cornerstone of any consideration of health and human rights. Through the endeavours of innumerable organizations and individuals, the content of the right to the highest attainable standard of health is now sufficiently well understood to be applied in an operational, systematic and sustained manner. Crucially, this understanding is new: It dates from within the last ten years or so. Of course, much more work is needed to grasp all the implications of the right to the highest attainable standard of health, but it can no longer be seen (or dismissed) as merely a rhetorical device. In these circumstances, it is timely to revisit Alma-Ata, and examine health systems, from the new, operational perspective of the right to the highest attainable standard of health.

In any society, an effective health system is a core institution, no less than a fair justice system or democratic political system.² In many countries, however, health systems are failing and collapsing,³ giving rise to an extremely grave and widespread human rights problem. At the heart of the right to the highest attainable standard of health lies an effective and integrated health system, encompassing medical care and the underlying determinants of health, which is responsive to national and local priorities, and accessible to all. Without such a health system, the right to the highest attainable standard of health can never be realized. It is only through building and strengthening health systems that it will be possible to secure sustainable development, poverty reduction, economic prosperity, improved health for individuals and populations, as well as the right to the highest attainable standard of health.

Importantly, the right to the highest attainable standard of health is recognized in the constitution of many states.⁴ Also, it is enshrined in numerous binding international human rights treaties, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC), which has been ratified by every state of the world, except for two (the United States of America (USA) and Somalia).

This chapter identifies some of the key right to health features of a health system. It considers health systems from the new, operational perspective of the right to the highest attainable standard of health. All of the features and measures identified here are already found in some health systems, recognized in some international health instruments (such as the Declaration of Alma-Ata), or advocated in the health literature. But they are not usually recognized as human rights issues. The chapter outlines how the right to the highest attainable standard of health underpins and reinforces an effective, integrated, accessible health system—and why this is important.⁵

A Right to Health Approach to Strengthening Health Systems

In the last decade, states, international organizations, international and national human rights mechanisms, courts, civil society organizations, academics and many others have begun to explore what the right to the highest attainable standard of health means and how it can be put into practice.⁶ Health workers are making the most decisive contribution to this process.⁷ Drawing upon this deepening experience, and informed by health good practices, this section briefly outlines the general approach of the right to the highest attainable standard of health towards the strengthening of health systems.

At the Centre: The Wellbeing of Individuals, Communities and Populations

A health system gives rise to numerous technical issues. Of course, experts have an indispensable role to play in addressing these technical matters. But there is a risk that health systems become impersonal, “top-down” and dominated by experts. Additionally, as a recent WHO publication observes, “health systems and services are mainly focused on disease rather than on the person as a whole, whose body and mind are linked and who needs to be treated with dignity and respect.”⁸ The publication concludes, “health care and health systems must embrace a more holistic, people-centred approach.”⁹ This is also the approach required by the right to the highest attainable standard of health. Because it places the well being of individuals, communities and populations at the centre of a health system, the right to health can help to ensure that a health system is neither technocratic nor removed from those it is meant to serve.

Not Only Outcomes, but Also Processes

The right to the highest attainable standard of health is concerned with both processes and outcomes. It is not only interested in what a health system does (e.g., providing access to essential medicines and safe drinking water), but also how it does it (e.g., transparently, in a participatory manner, and without discrimination).

Transparency

Access to health information is an essential feature of an effective health system, as well as the right to the highest attainable standard of health. Health information enables individuals and communities to promote their own health, participate effectively, claim quality services, monitor progressive realization, expose corruption, hold those responsible to account, and so on. The requirement of transparency applies to all those working in health-related sectors, including states, international organizations, public private partnerships, business enterprises and civil society organizations.

Participation

All individuals and communities are entitled to active and informed participation on issues bearing upon their health. In the context of health systems, this includes participation in identifying overall strategy, policy-making, implementation and accountability. The importance of community participation is one of the principal themes recurring throughout the Declaration of Alma-Ata. Crucially, states have a human rights responsibility to establish institutional arrangements for the active and informed participation of all relevant stakeholders, including disadvantaged communities.¹⁰

Equity, Equality and Non-Discrimination

Equality and non-discrimination are among the most fundamental elements of international human rights, including the right to the highest attainable standard of health. A state has a legal obligation to ensure that a health system is accessible to all without discrimination, including those living in poverty, minorities, indigenous peoples, women, children, slum and rural dwellers, people with disabilities, and other disadvantaged individuals and communities. Also, the health system must be responsive to the particular health needs of women, children, adolescents, the elderly, and so on. The twin human rights principles of equality and non-discrimination mean that outreach (and other) programmes must be in place to ensure that disadvantaged individuals and communities enjoy, in practice, the same access as those who are more advantaged.

Equality and non-discrimination are akin to the critical health concept of equity. There is no universally accepted definition of equity, but one definition is “equal access to health-care according to need.”¹¹ All three concepts have a social justice component. In some respects, equality and nondiscrimination, being reinforced by law, are more powerful than equity. For example, if a state fails to take effective steps to tackle race discrimination in a health system, it can be held to account and required to take remedial measures. Also, if a health system is accessible to the wealthy but inaccessible to those living in poverty, the state can be held to account and required to take remedial action.

A health system must be respectful of cultural difference. Health workers, for example, should be sensitive to issues of ethnicity and culture. Also, a health system is required to take into account traditional preventive care, healing practices and medicines. Strategies should be in place to encourage and facilitate indigenous peoples, for example, to study medicine and public health. Moreover, training in some traditional medical practices should also be encouraged.¹² Of course, cultural respect is right as a matter of principle. But, additionally, it makes sense as a matter of practice. As Thoraya Obaid, Executive Director of the United Nations Population Fund (UNFPA), observes: “Cultural sensitivity … leads to higher levels of programme acceptance and ownership by the community, and programme sustainability.”¹³

Medical Care and the Underlying Determinants of Health

The health of individuals, communities and populations requires more than medical care. For this reason, international human rights law casts the right to the highest attainable standard of physical and mental health as an inclusive right not only extending to timely and appropriate medical care, but also to the underlying determinants of health, such as access to safe water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, access to health-related education and information, including on sexual and reproductive health, and freedom from discrimination.¹⁴ The social determinants of health, such as gender, poverty and social exclusion, are major preoccupations of the right to the highest attainable standard of health. In his work, for example, the first United Nations Special Rapporteur on the Right to Health consistently looked at medical care and the underlying determinants of health, including the impact of poverty and discrimination on health. In short, the right to the highest attainable standard of health encompasses the traditional domains of both medical care and public health. This is the perspective that the right to the highest attainable standard of health brings to the strengthening of health systems.

Progressive Realization and Resource Constraints

The right to the highest attainable standard of health is subject to progressive realization and resource availability. In other words, it does not make the absurd demand that a comprehensive, integrated health system be constructed overnight. Rather, for the most part, human rights require that states take effective measures to progressively work towards the construction of an effective health system that ensures access to all. The disciplines of medicine and public health take a similar position; the Declaration of Alma-Ata, for example, is directed to “progressive improvement.”¹⁵ Also, the right to health is realistic, it demands more of high-income than low-income states. That is to say, implementation of the right to health is subject to resource availability.

These two concepts—progressive realization and resource availability—have numerous implications for health systems, some of which are briefly explored later in this chapter. For example, because progressive realization does not occur spontaneously, a state must have a comprehensive, national plan, encompassing both the public and private sectors, for the development of its health system. The crucial importance of planning is recognized in the health literature, the Declaration of Alma-Ata, and General Comment No. 14 on the right to the highest attainable standard of health of the United Nations Committee on Economic, Social and Cultural Rights.¹⁶

Another implication of progressive realization is that an effective health system must include appropriate indicators and benchmarks, otherwise there is no way of knowing whether or not the state is improving its health system and progressively realizing the right to the highest attainable standard of health. Moreover, the indicators must be disaggregated on suitable grounds, such as sex, socio-economic status and age, so that the state knows whether or not its outreach programmes for disadvantaged individuals and communities are working. Indicators and benchmarks are already commonplace features of many health systems, but they rarely have all the elements that are important from a human rights perspective, such as disaggregation on appropriate grounds.¹⁷

A third implication arising from progressive realization is that at least the present level of enjoyment of the right to the highest attainable standard of health must be maintained. This is sometimes known as the principle of non-retrogression.¹⁸ Although rebuttable in certain limited circumstances, there is a strong presumption that measures lowering the present enjoyment of the right to health are impermissible.

Finally, progressive realization does not mean that a state is free to choose whatever measures it wishes to take so long as they reflect some degree of progress. A state has a duty to adopt those measures that are most effective, while taking into account resource availability and other human rights considerations.

Duties of Immediate Effect: Core Obligations

Although subject to progressive realization and resource availability, the right to the highest attainable standard of health gives rise to some core obligations of immediate effect. A state has “a core obligation to ensure the satisfaction of, at the very least, minimum essential levels” of the right to the highest attainable standard of health.¹⁹ What, more precisely, are these core obligations? Some are discussed later in this chapter. Briefly, they include an obligation to:

• Prepare a comprehensive, national plan for the development of the health system.
  
• Ensure access to health-related services and facilities on a non-discriminatory basis, especially for disadvantaged individuals, communities and populations; this means, for example, that a state has a core obligation to establish effective outreach programmes for those living in poverty.
  
• Ensure the equitable distribution of health-related services and facilities e.g., a fair balance between rural and urban areas.
  
• Establish effective, transparent, accessible and independent mechanisms of accountability in relation to duties arising from the right to the highest attainable standard of health.