Human rights and health sector corruption
6
Human rights and health sector corruption
Brigit Toebes1
Money that should be spent on alleviating poverty and illness ends up instead in private pockets. In this way, corruption literally violates human rights, as people are denied the care that their governments are obliged to provide.
(Robinson 2006)
1 Introduction
Corruption is not a new phenomenon – it has affected societies and social relations since ancient civilisations (Carr 2006: 5). One of the branches where corruption is endemic is the health sector. An elucidating report by Transparency International (2006), which in itself builds upon a wide amount of existing research, makes it clear that the health sector is extremely vulnerable when it comes to corruption.2 This is the case in rich as well as poor nations.3 In some countries, the health sector is considered to be the most corrupt sector of all (Savedoff and Hussman 2006: 5).4
Although a systematic investigation has yet to be made, empirical research indicates that acts of corruption can adversely affect the provision of publicly provided services, including healthcare services (Gupta et al. 2000). As such, health sector corruption deprives people of access to healthcare and leads to poor health outcomes. To single out one negative effect, corruption has been negatively associated with child health. Gupta et al. demonstrate that a high level of corruption has adverse consequences for a country’s child and infant mortality rates, and its percentage of low-birth-weight babies in total births. Child mortality rates in countries with high levels of corruption are about one-third higher than in countries with low levels of corruption, and infant mortality rates are five times as high (Gupta et al. 2000: 7–26). As such, corruption potentially violates the right to health and other related human rights.
The problems of health sector corruption are not necessarily well-known in the field. While medical and public health literature lack references to health sector corruption, healthcare professionals themselves may not perceive corruption as a systemic problem. As such, there is a disconnection between the above-mentioned findings on health sector corruption research and the perceptions of the health sector itself.5 A similar disconnection exists between corruption and human rights law. While it is obvious that acts of corruption can lead to human rights violations, human rights specialists are only just starting to explore the link (e.g. ICHRP 2009).
This chapter assesses how health sector corruption impacts upon human rights and how the human rights framework can be used as a tool to address corruption in this area. This analysis fits into the current literature on the relation between health systems and human rights. Increasingly, human rights scholars and activists are exploring the links between human rights and the organisation of the health sector (Hunt and Backman n.d.) Based on existing research, this chapter will first discuss the character of corruption, and of health sector corruption more specifically. Subsequently, a connection will be made between the existing findings on health sector corruption and the human rights framework. Particular attention will in this respect be paid to the framework of the right to health, as laid out in particular by the United Nations Committee on Economic, Social and Cultural Rights (CESCR) General Comment 14 on the Right to Health. On the basis of these findings (national and international), State obligations in relation to corruption in the health sector are identified. Such obligations are also identified for non-State actors, including private hospitals, insurance companies, commercial suppliers of medical healthcare goods and services, healthcare consumers and health workers. Finally, the question is addressed of when and to what extent an act of corruption can amount to a human rights violation. Having made the connection between corruption and human rights, the conclusions contain some suggestions as to how human rights principles and norms can be used as tools to combat corruption.
2 Corruption: the international framework
2.1 Definition of corruption
Before we can embark upon an analysis of health sector corruption, we need to identify the international framework of corruption more generally. This chapter will use Transparency International’s definition of corruption: ‘the misuse of entrusted power for private gain’.6 It is submitted that this definition provides a clear basis for establishing a link between corruption and human rights. On the basis of human rights, governments and other actors have to respect the powers bestowed upon them. For example, human rights may imply a governmental responsibility for providing a certain public service, such as legal assistance, schooling, healthcare services and water services. An act of corruption, or ‘the abuse of entrusted power for private gain’, disrespects this responsibility and may as such lead to a violation of human rights. Another important feature of the definition is that it not only focuses on ‘public power’, but rather on ‘entrusted power’ more generally. As such, it leaves room for addressing non-State actors, which is of essential importance when it comes to health sector corruption.7 This is also important in light of the fact that the health sector is increasingly privatised (see Section 5.3 under ‘privatisation’).
Yet with this clear definition at hand it will not always be easy to define whether a certain act actually constitutes an act of corruption. As Savedoff observes, the definition of what constitutes ‘corruption’ may vary from the one society to the other (Savedoff 2007). While in some countries a certain act, e.g. informal payments to doctors, may clearly constitute an act of corruption, in others it may be considered an essential part of the country’s culture and society.8 In this connection, it has been suggested that corruption may effectively reduce bureaucracy and speed the implementation of administrative practices conforming to the economic forces of the market (IDEA n.d.) As such, some have argued that corruption may actually benefit the economies of developing countries, and that it is a Western notion in the way it is currently defined (Savedoff 2007: 2). A parallel can be drawn here with the discussion as to whether human rights are universal notions or rather subject to cultural relativism (Baehr 1999, Howard 1997). The present chapter takes a two-pronged approach to this discussion. On the one hand, it identifies a broad set of human rights obligations of various actors in the health sector in relation to corruption (Section 5.5). On the other hand, however, it only identifies the most serious acts of corruption as human rights violations (see Section 5.6).
2.2 Treaty law on corruption
International economic institutions like the World Bank and the IMF have made tackling corruption into a focal point of their policies.9 In addition, a number of international treaties address the issue of corruption.10 Most importantly, in 2003 the General Assembly adopted the United Nations Convention against Corruption, which entered into force in 2005 and has now been ratified by more than 100 Member States (UN 2003). The Convention does not contain a general definition of corruption.11 It first enumerates a number of preventative measures that Member States are required to take in order to prevent corruption from occurring (UN 2003: Chapter II). Subsequently, in its chapter entitled ‘Criminalisation and Law Enforcement’ it identifies and defines five acts of corruption as criminal acts:
(a) the bribery of national and foreign public officials and bribery in the private sector (the promise, solicitation or acceptance of an undue advantage);12
(b) embezzlement, misappropriation or other diversion of property by a public official (of any property or any other things of value entrusted to the public official by virtue of his or her position);
(c) trading in influence (the promise, solicitation or acceptance of an undue advantage with a view to obtaining an undue advantage from the public official);
(d) abuse of functions (the performance or failure to perform an act, in the discharge of his or her functions, with the purpose of obtaining an undue advantage); and
(e) illicit enrichment (a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income)
(UN 2003: Chapter III)
Without discussing the scope and effects of this treaty elaborately, it is observed that, contrary to the Council of Europe framework, which also embraces a civil law convention (Council of Europe 1999b), this convention only defines criminal acts. Sandgren criticises the emphasis on criminal law when it comes to combating corruption (Sandgren 2005:726). But, as Carr observes, the UN convention is quite comprehensive in the sense that it requires States Parties to put in place, maintain and coordinate anti-corruption policies (Carr 2006: 40). Yet there may be a certain tension between the penal tools provided for by this Convention that seek to punish wrong-doing and the more policy-oriented measures aimed at addressing the ill-effects of corruption. Furthermore, the UN Convention is directed primarily at Member States, not at non-State actors. When it comes to health sector corruption, it is of crucial importance to address non-State actors, including hospitals, insurance companies and commercial suppliers of medical healthcare goods and services (see Section 5.5). Nonetheless the Convention involves society as a whole and the private sector more particularly by urging Member States to prevent corruption involving the private sector, to promote the active participation of private actors in the fight against corruption and to raise public awareness of the matter (UN 2003: Arts 12, 13, ‘Participation of society’). As such, Member States have so-called ‘obligations to protect’ individuals against the corrupt acts of third parties, including healthcare providers of goods and services (see Section 5.3).
It goes beyond the scope of this chapter to elaborately discuss the UN anticorruption treaty and others like it. Yet these instruments can be important tools in addressing health sector corruption. They can also help to further identify the link between health sector corruption and human rights. We will use the above-mentioned identification of corrupt acts in discussing State obligations as regards health sector corruption (see the obligations to ‘respect’ in Section 5.3).
3 The characteristics of health sector corruption
Transparency International identifies three main characteristics of the health sector that make it so vulnerable to corruption (Transparency International 2006: xvii). It refers first to the imbalance of information that prevails in the health system. While healthcare providers possess more information on health, drugs and illness than their patients, suppliers of medical and healthcare goods and services know more about their products than the public officials entrusted with spending decisions. Second, it refers to the uncertainty in ‘health markets’ as a factor for health sector corruption. As the report explains, the uncertainty inherent in selecting, monitoring, measuring and delivering healthcare services makes it difficult to detect and assign responsibility for abuses (Transparency International 2006: 5). Third, the complexity of health systems is a factor that exacerbates health sector corruption. The report refers in particular to the large number of parties involved, which makes it more difficult to generate and analyse information in a transparent manner (Transparency International 2006: xvii).
As mentioned, the complexity of the health sector is partly due to the large number of actors involved in the health sector and the complexity of their multiple forms of interaction. According to Savedoff and Hussmann, all abuses involve transactions between two or more actors (Savedoff and Hussmann 2006: 5). In the anti-corruption literature, a distinction is generally made between five main categories of actors:
(a) regulators (health ministries, parliaments, supervisory commissions, accrediting and licensing bodies);
(b) payers (social security organisations, public and private insurers, financial intermediaries, public and private donors);
(c) providers (hospitals, doctors and medical associations, pharmacists);
(d) consumers (patients, patient support groups, disease-related advocacy groups);
(e) suppliers (commercial suppliers of medical and healthcare goods and services, including pharmaceutical companies and biotechnology companies, as well as producers of medical equipment and medical device companies)
(Savedoff and Hussmann 2006: 8–10)13
Based on discussions with health sector professionals, this author would also include:
(f) researchers and educators (groups and organisations that address medical and healthcare research, including medical schools and their parent universities, medical journals, medical education companies).14
4 Health sector corruption and human rights
At the core of our analysis lies the international human ‘right to health’. The term ‘right to health’ is shorthand for the ‘right to the highest attainable standard of health’ as provided in Article 12 of the UN International Covenant on Economic, Social and Cultural Rights (ICESCR). As pointed out by the former Special Rapporteur on the Right to Health, the right to health is a firmly established feature of binding international law (UN 2004: para 15). In addition to Article 12 ICESCR, the right to health is recognised by provisions in a number of other international human rights instruments, including Article 25 of the Universal Declaration on Human Rights (UDHR); Article 5(e) of the International Convention of All Forms of Racial Discrimination (CERD); Articles 11.1 and 12 of the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) and Article 24 of the Convention on the Rights of the child (CRC). At the regional level we come across the right to health in Article 11 of the (revised) European Social Charter (ESC), in Article 16 of the African Charter of Human and Peoples’ Rights and in Article 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights. Furthermore, over 100 national constitutional provisions include a right to health (UN 2004: para 15). Finally, an increasing amount of case law on the right to health generated by national and international judicial bodies points to the increasing enforceability or ‘justiciability’ of the right to health (UN 2004: para 16).
An elaborate explanation of the right to health is provided by UN General Comment 14 on the right to health, which is an explanatory document on Article 12 ICESCR adopted by the Committee on Economic, Social and Cultural Rights (CESCR), the treaty-monitoring body to the ICESCR (CESCR 2000). Although strictly speaking not legally binding, this document is the most authoritative document on the right to health. Therefore, this chapter closely follows the approach taken in the General Comment. The General Comment does not address the issue of corruption explicitly, but it does provide a suitable framework for addressing this issue in relation to the health sector.
As the General Comment explains, the right to health is closely related to, and dependent upon, the realisation of other human rights (CESCR 2000: para 3). With respect to corruption in the health sector, the following other human rights are of particular importance: the right to life, the principle of non-discrimination, freedom of expression and the right to information, the right to political participation and the right to a remedy.15 While the right to health lies at the core of our analysis on corruption in the health sector, the other rights support and reinforce this right. For example, serious acts of corruption in the health sector can lead to infringements of people’s health (right to health), but can also result in a person’s death (right to life). Furthermore, freedom of expression and the right to information overlap with the right to health in the sense that they embrace the notion of expressing and accessing health-related information that is of crucial importance when it comes to combating health sector corruption. For example, on some occasions the corrupt act leads to an attempt to cover up this act, and as such to a violation of freedom of expression and the right to information (see Section 5.1 under access to information). Furthermore, the right to health includes a prohibition of discrimination in access to health services and as such is connected to the principle of non-discrimination. This is important, because corruption may directly and indirectly affect vulnerable groups, as will be pointed out below in Section 5.2. The right to (political) participation reinforces the right to health in the sense that it gives people the right to have a say in important decisions regarding the (organisation of the) health sector (see section 5.1). And finally, in relation to the right to a remedy, the right to health reflects the notion that individuals whose health has been adversely affected by a health practitioner or other actor in the health sector should have adequate means of redress.
While this chapter primarily uses the framework of the right to health to analyse health sector corruption, it is recognised that the corrupt acts that are identified may equally lead to violations of the rights identified above. Given the lack of enforceability of economic, social and cultural rights (Toebes 1999: c. IV; Coomans 2006), claims based on rights to life and a fair trial and freedom of expression may on some occasions be more successful than claims based on a right to health.
As mentioned above, the right to health is an inclusive right which not only extends to timely and appropriate healthcare services, but also to the underlying determinants of health, such as access to safe, potable water and adequate sanitation, healthy occupational and environmental conditions, and access to health-related education and information. This implies that when we analyse corruption in relation to a right to health, it is not only the healthcare sector that should, in principle, be under scrutiny, but also e.g. water provision and the occupational and environmental health sectors. A discussion of the underlying conditions inherent in the right to health would be beyond the scope of this chapter. However, it can be argued that the framework developed here can equally be applied, for example, to corruption in the provision of water services (Transparency International 2008).
5 Applying the human rights framework
5.1 The ‘AAAQ’
The General Comment on the Right to Health identifies a set of principles that apply at all levels of the health sector and that are also important in relation to the problem of corruption: availability, accessibility, acceptability and quality of health facilities (the so-called ‘AAAQ’ (CESCR 2000: para 12)). One finds similar principles in the UN General Comments on the substantive rights in the ICESCR, as well as in a national health law context.16 In addition, (political) participation17 and accountability are important for addressing health sector corruption. Although not elaborately discussed in the General Comment (CESCR 2000: paras 11 and 59–62), they are increasingly referred to in the health and human rights literature as important principles underlying the right to health (Potts n.d.)
As pointed out by the former Special Rapporteur on the Right to Health, Paul Hunt, while this framework is especially relevant to policy analysis, the identification of obligations further on in this chapter (obligations to ‘respect, protect and fulfil’) is more suited to legal analysis (UN 2004: para 39). In a policy context it does not make a great deal of difference whether a particular obligation requires negative (obligation to respect) or positive State behaviour (obligations to protect and fulfil). This distinction is of much greater relevance in legal analysis, since ‘negative’ State obligations may be more easily enforceable before a court of law than the more ‘programmatic’ or ‘positive’ State obligations (Toebes 1999: 239).
5.1.1 Availability
Availability requires that health facilities, goods and services, as well as programmes, have to be available in sufficient quantity. Corruption may affect the availability of health goods and services. Money that is used to bribe regulators, healthcare providers (of goods as well as services) could have been spent on health facilities directly. Therefore, States need to ensure that the availability of health goods and facilities is not negatively affected by acts of corruption in the health sector.
5.1.2 Accessibility
Accessibility requires that health facilities, goods and services are accessible to all persons without discrimination. Accessibility has four overlapping dimensions:
Non-discrimination requires that health facilities, goods and services are within safe physical reach of all sections of society, especially vulnerable or marginalised groups (see below in Section 5.2). First of all, health sector corruption can generally mean that fewer dues are paid into the system, thereby reducing public expenditure on health (FIDH 2005: 24). Research points out that in countries where corruption is endemic, the poorer sections of the population and those who live in rural areas suffer longer waiting periods at public health clinics and are also more frequently denied vaccines than are rich and urban sections of the population (Azfar and Gurgur 2006: 38). Health sector corruption can also lead to discrimination more directly when healthcare providers and professionals treat patients differently according to their income and their contacts with the medical profession (FIDH 2005: 24). Altogether, therefore, States need to ensure that individual patients or certain sections of the population are not disadvantaged by acts of corruption in the health sector.
Physical access implies that health facilities, goods and services are within safe physical reach of all sections of the population, especially vulnerable or marginalised groups, such as ethnic minorities and indigenous populations. Health sector corruption may lead to choices that are less favourable to the community, e.g. hospitals may be built in remote or wealthy areas of a city rather than in the vicinity of the communities that need them most. Therefore, States need to ensure that decisions to build health centres and hospitals are not negatively affected by health sector corruption.
Economic access (affordability) implies that health facilities, goods and services must be affordable to all, whether publicly or privately provided. Corruption can affect the affordability of health services in many ways. At a macro-economic level, health services may become more expensive if the health sector is affected by corruption. Public officials can demand fees for drugs that have been provided free of charge by pharmaceutical companies or donor organisations. At the level of healthcare provision doctors can make healthcare services more expensive by demanding informal payments (‘under-the-table payments’). They may also refuse to attend patients who do not have insurance. Altogether, States need to ensure that the affordability of healthcare services is not negatively affected by health sector corruption.
Access to information requires that patients and the public as a whole have the right to seek, receive and impart information and ideas. At the level of the system as a whole, corruption will lead to skewed information about health needs and use of facilities going to planners, leading to misallocation of resources. The level of healthcare provision is vulnerable to corruption because it is characterised by the above-mentioned ‘asymmetric information’: for example, healthcare providers are better informed than their patients on issues like diagnosis and treatment (Savedoff and Hussmann 2006: 4–5).
When seeking health services, patients should be in a position to make informed choices and select appropriate providers at appropriate prices and standards of quality (U4 2006: 13). Patients should be informed of their rights, of the services available, and of prices and conditions of access (U4 2006: 13). They should also be informed about the health services that they are entitled to free of charge and about the eligibility criteria for certain medical programmes. Also, patients have to be informed about the toxicity or adverse effects of drugs.18 In turn, doctors need to have accurate, complete and unbiased information about the harms of specific tests and treatments, in order to make the best medical decisions for their patients.19 Whistle-blowers in the health sector should be in a position to report to the competent authorities any facts that constitute health sector corruption (UN 2003: art 33). Altogether, States need to ensure that health information is available at all levels of the health sector, and that the provision of such information is not negatively affected by health sector corruption.
5.1.3 Acceptability
Health facilities must be respectful of medical ethics, and they must be culturally appropriate. Among other things, health facilities must be designed to respect confidentiality and improve the health status of those concerned. Due to the above-mentioned ‘imbalance of information’, the health professional’s position is more powerful than that of the patient. For example, under pressure from a pharmaceutical company, a health professional may be tempted to prescribe drugs to a patient that are not in his or her best interests. States should put in place guarantees that ensure that health professionals do not abuse their position of power, and thereby disrespect the ‘acceptability’ of the health service for the patient.
5.1.4 Quality
Health facilities must be scientifically and medically appropriate, and of good quality. Corruption can affect the quality of medicines, for example, when regulators are bribed to carry out less than rigorous checks, or when hospital administrators purchase cheaper, less effective drugs and embezzle the proceeds.
States should ensure that the quality of health services is guaranteed at all levels of the health sector and that the quality of health services is not negatively affected by health service corruption.
Participation20
The public must have a say in important decisions concerning the health sector, for example, the decision to privatise or decentralise (parts of) the health sector. States should ensure political participation in decision-making on the organisation of the health sector. Political participation is not only realised through a democratic system of elections, but also by providing for public enquiries regarding planned health sector reform (see also Potts n.d.).
When it comes to the health budget, it has been pointed out that the public and/or civil society can be actively included in all stages of the budget cycle for the health sector. Public budget hearings can be held at the local level to involve citizens in the way public services are delivered (U4 2006:23).
Accountability
Potts explains the concept of ‘accountability’ as a broad process, which requires governments to show, explain and justify how they have discharged their obligations regarding the right to health. According to Potts, an effective accountability process comprises the following essential elements: monitoring, accountability mechanisms, remedies, and participation (Potts n.d.: 13–17 and Vian 2008). Monitoring is aimed at providing governments with the information that they need to create transparent health policies, as well as providing rights-holders with essential health-related information (Potts n.d.: 13–17). ‘Accountability mechanisms’ can be judicial or quasi-judicial (for example, a health ombudsman or other independent complaint mechanism), as well as administrative, political or social in character (Potts n.d.: 17–27). States should establish supervisory bodies which monitor the actions and decisions of actors in the health sector, be they public or private actors, ranging from hospitals to health equipment providers, and impose sanctions upon them where necessary.
Providing remedies implies that States provide for a mechanism of redress when people have been affected by health sector corruption.21 A problem that arises in the context of corruption is that on many occasions the victim of the corrupt act has participated in the act: the individual who ‘had’ to pay the bribe participated in the wrongdoing. In such situations it seems more effective to search for other accountability mechanisms.
5.2 Identification of vulnerable groups
Pursuant to its Arts 2.2, 3 and 12, the ICESCR prohibits any discrimination in access to health services on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status. The General Comment on the Right to Health points out that inappropriate health resource allocation can lead to discrimination that may not be overt (CESCR 2000: para 18). As health sector corruption may enhance inappropriate health resource allocation, it can lead to discrimination indirectly. But health sector corruption can also lead to discrimination directly, for example when so-called ‘informal payments’ are unaffordable to certain sections of the population.
The following are examples of population groups that are particularly vulnerable when it comes to health sector corruption:
Poor people are the most susceptible when officials hoard drugs or waste resources on the wrong kind of medicines (Cohen 2006: 84). They may also be refused medical services based on their inability to afford the bill afterwards. And, as mentioned above, they also have the most difficulty affording the informal payments that are often required to receive the medical care they need.
Persons with chronic diseases and disabled persons. Given their condition, persons with chronic diseases and disabled persons often require more health services than others – and for an indefinite period. This makes them particularly vulnerable to being excluded from health insurance, for example.
HIV-positive persons and persons with AIDS are likely to suffer due to health sector corruption because they are highly dependent on the availability and affordability of anti-retroviral drugs (ARVs). It is reported that, particularly in low-income countries, a lot of corruption surrounds the procurement and distribution of ARVs. Money available for ARVs is embezzled during all stages of the procurement and distribution chain, by government officials, doctors and others involved in this process (Tayler and Dickinson 2006: 104). It is reported that where ARVs are provided free of charge, requests for ‘top-up payments’ are nevertheless common, as is trade in ARVs derived from patients or leaked out of the health system. There is also an extensive market in fake ARVs (Tayler and Dickinson 2006: 105–106).
People living in remote areas. Building a health centre in a remote area may put a strain on the healthcare budget where it would be more lucrative to build health centres and hospitals in central areas. As such, persons living in remote areas are vulnerable to health sector corruption when the commercial aspects of a planning decision are taken into account rather than the general geographic accessibility of healthcare services.
Women. Given their specific health needs in relation to their sexual and reproductive function, women often require more healthcare services than men. As such, they can be affected disproportionately by the effects of health sector corruption, for example when they do not have the money to afford informal payments exacted for assistance at the birth.
Other factors need to be taken into account as well, for example the fact that women often face a disproportionate burden caring for sick family members, which reduces their participation in the paid labour force (UN 2004: para 57 (a)). As such, they may lack the means to afford healthcare services, in particular when informal payments are required.
The General Comment on the Right to Health stresses the need to develop and implement a comprehensive national strategy for promoting women’s health, including a policy to provide high-quality, affordable healthcare, of which sexual and reproductive services also form a part (CESCR 2000: para 21). Such strategies should not be affected by acts of corruption in the health sector.
Another issue that should be mentioned is that women constitute a large proportion of healthcare personnel. As such, they can also be affected disproportionately when health sector corruption negatively affects the timely payment of proper wages.
5.3 State obligations
On the basis of this framework, a set of legal obligations can be identified that are incumbent upon States and possibly upon other actors in the health sector. As it is States that ratify human rights treaties, and not other actors in the health sector, States and their governments bear the primary responsibility for realising these obligations towards individuals.
In this regard, the General Comment distinguishes between so-called State obligations to ‘respect’, to ‘protect’ and to ‘fulfil’ the right to health. The obligation to respect the right to health is a negative obligation to refrain from interfering directly or indirectly with the enjoyment of the right to health. The obligation to protect requires States to take legislative and other measures that prevent third parties, including private insurers, private healthcare providers, and suppliers from interfering with the guarantees under the right to health. Finally, the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realisation of the right to health (CESCR 2000: paras 34–37).