The child’s right to health and the courts

1 Introduction

The child’s right to health has started to come into its own. In addition to being set out in a wide range of international and regional human rights instruments, the right is included in a growing number of national constitutions. This has resulted in it being the subject of ever-greater levels of judicial and quasi-judicial attention. However, the extent of the protection afforded to the child’s right to health by such bodies has by no means been uniform. While some judicial and quasi-judicial bodies have not hesitated to address children’s right to health and construe it in such a way as to impose extensive obligations on the state, others have been far more reticent. This raises the question of how the approaches of such bodies have differed – and why.

This chapter considers the way in which the child’s right to health has been interpreted and applied by a wide range of domestic courts and international judicial and quasi-judicial decision-making bodies.¹ In doing so, the chapter identifies the role that has been, and may be, played by the courts in fleshing out the substantive content of the child’s right to health.² In particular, the author focuses on the courts’ role in delineating the state’s duty to fulfil the right to health of children. That is, the duty of the state to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realisation of that right.³ The adjudication of this state obligation arguably poses the greatest challenge to judicial and quasi-judicial decision-making bodies, requiring as it does the evaluation of whether the state has taken adequate positive steps (and, frequently, has allocated sufficient resources) to facilitate the child’s right to health. Indeed, regardless of the frequently exaggerated and inaccurate claims about the alleged institutional incapacity of courts to deal with the positive obligations imposed by economic and social rights,⁴ concerns about the judicial review of state ‘inaction’⁵ and resource allocation have been central to objections to the legal legitimacy of economic and social rights adjudication, including that involving the right to health (see e.g. Hogan 2001: 189). It is thus fitting that this chapter should focus on if, and how, courts have risen to the challenge of the obligation to fulfil.

The substantive aspects of the right to health may be broken down into two main elements: the right to healthcare or health services (which is generally understood as the provision of preventative, curative and rehabilitative medical services) and the right to the underlying preconditions for health, including access to safe and potable water, adequate supplies of safe food, access to health-related education and information (Heyns 2000).⁶ In this chapter, the main focus will be on the child’s right to healthcare or health services, although the underlying preconditions will be dealt with where relevant.

Rather than simply focusing on how the courts have construed the obligations imposed by the child’s right to health, the author will also seek to identify trends in the approaches adopted towards the child’s right to health by such bodies. What perceptions of children as rights-holders and members of democratic society underpin such approaches? How do the courts advance particular conceptions of children and their rights through their decision-making? A key element of analysing the courts’ role in relation to the child’s right to health is a consideration of how that right has been enshrined in the different instruments, which the courts then interpret and apply. This is necessary due to the implications that the particular formulation of a rights provision may have for the court’s treatment of such. Furthermore, the way in which the child’s right to health is enshrined is frequently reflective of legal or societal perceptions of children and their rights, which may be confirmed or rejected by the court.

Before beginning my analysis, I note that international, regional and domestic law deal extensively with the health rights of particular groups of children⁷ – most notably those of children living with disabilities⁸ or working children.⁹ This chapter, however, will concentrate on the right to health of the ‘child’ generally, focusing only on the health rights of particular groups of children (for instance, children in state custody) where these arise in cases under discussion in the framework of the general right to health of children. Similarly, this chapter will deal exclusively with the state’s obligation to give effect to the child’s right to health, and will not consider the horizontal application of that right to parents, carers or other non-state actors.¹⁰ Finally, the author will not deal with court decisions concerning the overriding of a child’s refusal of necessary treatment¹¹ or cases in which a child seeks medical treatment in the face of parental opposition.¹² While such decisions undoubtedly have clear implications for multiple aspects of the child’s right to health, including the state’s obligation to ensure that children have opportunities to participate in decisions affecting their health,¹³ space constraints render an adequate discussion of them beyond the scope of this chapter.

Section 2 of this chapter centres on children as bearers of the right to health, highlighting the implications that the perceived characteristics of childhood and the position of children in society have had, and may have in future, on the courts’ construal of that right. Section 3 is a brief analysis of the child’s right to health under international law. In Section 4, the author addresses the very different ways in which the child’s right to health has been enshrined in national constitutions. Section 5 discusses whether the accepted heightened vulnerability of children with regard to their right to health has resulted in their being accorded priority vis-à-vis other groups when it comes to the courts’ delineation and enforcement of that right. Before moving on to consider the direct treatment of the child’s right to health by courts, Section 6 analyses courts’ approaches to the state’s duty to fulfil the child’s right to health. Section 7 draws together the key questions addressed in the chapter, and presents conclusions on the role of the courts in enforcing the child’s right to health.

2 Children and the right to health

Before discussing the courts’ approach to the child’s right to health, it is necessary to consider the child as a right-to-health-bearer in the broader context. Much has been written with regard to whether children are or should be right-holders, and the basis upon which such rights should be granted. The author’s aim is not to reopen that debate.¹⁴ Rather, this chapter proceeds on the understanding that children have been accorded legal rights to health under international, regional and domestic law, on the basis of their status as human persons who are children, and that these rights require implementation by the state.

The position of children in relation to the right to health differs from that of many other groups of right-holders in several ways. The most obvious of these is the fact that children are frequently more vulnerable to violations of their rights, and are less able to protect themselves – or capable of taking advantage of protections that are available – than are members of other groups. Because of their nature and condition, children have a reduced capacity to meet their health needs by either obtaining or creating sustenance from the resources of their environment (Wringe 1981: 135–6). Furthermore, they are less likely to have the skills necessary to gain a stake in the health-related resources, and other resources of the community, by negotiating special rights for themselves (i.e. rights that arise from transactions or relationships (Ibid)). In addition, children are often affected in a different way from adults by violations of their right to health (Office of the High Commissioner of Human Rights 2001). The physical and psychological effects that children suffer as a result of violations of their right to health will generally be greater than those experienced by adults due to their lower level of physical and mental development.¹⁵ This is true both in relation to (a) the immediate impact that violations of the right to health may have on a child’s physical and psychological state, and (b) the long-term detrimental effects on the child’s development and future capacity for autonomy resulting from such a violation.

The idea that children are in a particular position with regard to the right to health as a result of the biological and socially constructed characteristics of childhood has frequently informed, and been reflected in, the way that the child’s right to health has been enshrined in domestic constitutions and international human rights instruments. Perceptions of children and childhood have also often implicitly and/or explicitly influenced how courts have interpreted and applied such provisions. For instance, in its Advisory Opinion on the Juridical Condition of the Child,¹⁶ the Inter-American Court of Human Rights stated that ‘education and care for the health of children require various measures of protection and are the key pillars to ensure enjoyment of a decent life by the children, who in view of their immaturity and vulnerability often lack adequate means to effectively defend their rights’ [emphasis added].¹⁷ This statement clearly reflects a perception of children as vulnerable, largely passive, beings who require positive intervention on their behalf to ensure the realisation of their rights. However, the Court had previously commented in its Advisory Opinion that

Here, the Court specifically justified the paternalistic best-interests principle in terms of, amongst other things, the need to develop the child’s potential – that is, to maximise the child’s future capacity for autonomy.

The exclusion of children from the democratic decision-making processes that determine budgetary allocations and policies also considerably weakens their ability to ensure that their right to health is enforced. If political organs cannot be held to account by children, they are likely to be less attentive to their rights and interests than they would be in relation to those of other, enfranchised vulnerable groups (for instance, the elderly). Awareness of the position of children ‘outside democracy’ has encouraged the courts to play an active role in asserting the child’s right to health in some cases. In one Colombian case involving the child’s right to health, the Constitutional Court stated that, in a rights-based social state, the political community owes preferential treatment to those who find themselves in circumstances of clear weakness and who are impeded from participating, under equal conditions, in the adoption of public policies that are applicable to them.¹⁹ The Court held that the reason that justifies giving precedence to the application of the ‘democratic principle’ (which provides that the elected political organs are those responsible for tax policies and budgets) at the time of assigning positive rights is ‘irrelevant in the case of the fundamental rights of minors’.²⁰ According to the Court, the democratic principle cannot oppose the claim to essential demands of a group of the population that is unable to participate in public debate and that, as a result, does not have its own voice in the adoption of political decisions that affect it.

It is also worth noting the strong linkage between non-discrimination and the child’s right to health. Like all economic and social rights, violations of the child’s right to health are often the result of deeply-rooted systemic inequality.²¹ Those children who are most likely to suffer violations of their right to health are frequently also victims of discrimination – whether on the grounds (or a combination of grounds) of disability, socio-economic status, race, ethnicity, nationality, or other status. Furthermore, children whose right to health has been violated may become victims of discrimination on that ground also (for instance, as a result of stigmatic attitudes about persons living with mental illness or HIV/ AIDS).²² The issue of non-discrimination has been a particular feature in right to health cases that centre on the unequal availability of certain treatments within a particular country (see, for example, Ely Yamin 2003: 349). This is largely due to the linkage between the access to such treatment and the resources that are available to an individual or her family. It is notable that both the Committee on Economic, Social and Cultural Rights (CESCR) and the Committee on the Rights of the Child (ComRC) have emphasised that the state is under an immediate obligation to ensure that the child’s right to health is exercised without discrimination of any kind.²³

At this stage, it is important to establish why the child’s right to health is useful in responding to the specific position and right-to-health-related needs of children that are outlined above. First, the child’s right to health serves as a springboard for children (and others) to hold government to account, whether at the domestic or the international level. Claims based on that right serve to challenge – and offer litigants the opportunity to recalibrate – the power relationship between children and right-to-health duty-bearers. In addition, where children are recognised as rights-bearers, they are promoted from merely being the object of the rights and duties of others, and are afforded the respect and dignity associated with the status of ‘right-holder’ (Freeman 1992). Furthermore, recognition and enforcement of the child’s right to health by bodies such as those under consideration is a key avenue by which children’s health-related issues may be put on the agenda of otherwise indifferent and unresponsive law- and policy-makers. Finally, while it has frequently been argued that the existence of economic and social rights-related legislative entitlements renders express economic and social rights protections unnecessary, it is important to note that such non-rights-based entitlements are often narrowly phrased and do not afford full coverage to all aspects of economic and social rights. In contrast, the protection afforded by the child’s right to health is comprehensive and wide-ranging.

Having looked at the position of the child in relation to enjoyment of the right to health and the importance of that right, it seems appropriate to turn to consider how that right has been set out and interpreted at the international level. This will provide the necessary backdrop to an analysis of how the national and regional guarantees have been dealt with by judicial and quasi-judicial bodies.

3 The child’s right to health under international law – a brief discussion

The most celebrated and authoritative statement of the right to health under international human rights law is Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The steps that States must take so as to give effect to that right include those necessary for the reduction of the stillbirth rate and of infant mortality, and for the healthy development of the child.²⁴ These child-specific duties are addressed in greater detail by the Committee in General Comment quote 14 on the Right to the Highest Attainable Standard of Health.²⁵

The right to health in all its forms, including the child’s right to health, must contain the interrelated and essential elements of availability, accessibility, acceptability and quality.²⁶ Like all rights, the child’s right to the highest attainable standard of health imposes three levels of duty on the state – the obligations to respect, protect and fulfil.²⁷ The obligation to respect requires States to refrain from interfering with the enjoyment of socio-economic and cultural rights.²⁸ The obligation to protect requires States to take measures that prevent third parties from interfering with the enjoyment of such rights. The obligation to fulfil involves States taking steps to facilitate individuals and communities in enjoying the right, and, when an individual or group is unable to realise the right themselves, to provide that specific right.²⁹ The first two obligations are immediate in nature. The duty to fulfil the right to the highest attainable standard of physical and mental health also includes duties of an immediate nature. For instance, the immediately realisable ‘minimum core’ obligations imposed by the right. However, the primary duty imposed by Article 12 ICESCR is one of progressive realisation, limited by the state’s maximum available resources.³⁰ There is also a corresponding prohibition on retrogressive measures in all but very limited circumstances.

It is in the context of the Convention on the Rights of the Child (CRC), however, that the substantive content of the right to health of the child has been considered most fully. Like Art 12 ICESCR, Art 24 is essentially concerned with the right to health as a right to health-related goods and services – i.e. as a ‘medicalised’ conception of health. This is in strong contrast to, for example the ‘social medicine’ focus of the World Health Organization (WHO) Constitution (Meier and Fox 2008: 260). Numerous aspects of the right to health are dealt with in the CRC, both implicitly in the obligation imposed on states parties by Art 6 to ensure, to the maximum extent possible, the survival and development of the child, and expressly in provisions such as Art 24.³¹ My analysis here will focus primarily on Art 24, however. The importance of the child’s right to health in the overall schema of children’s rights is indicated by the fact that it has been the subject of two General Comments of the Committee on the Rights of the Child (ComRC 2003a, 2003b).³² It has also been dealt with extensively in three other non-health-specific General Comments.³³

Art 24 has been described as ‘the most elaborate and specific provision on the right to health’ (Doek 2001: 162). It establishes that States Parties recognise 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 Parties are obliged to strive to ensure that no child is deprived of his or her right of access to healthcare services. The obligation to ensure full implementation of this right includes taking measures to reduce infant and child mortality; to ensure the provision of the necessary medical assistance and healthcare to all children, with emphasis on the development of primary healthcare; to combat disease and malnutrition, including within the framework of primary healthcare;³⁴ to ensure appropriate pre-natal and post-natal healthcare to mothers; and to develop preventive healthcare, guidance for parents and family planning education and services. Art 24(3) imposes a duty on States Parties to ‘take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children’. Art 24 emphasises the role of international cooperation in relation to the child’s right to health, enjoining States Parties to promote and encourage such cooperation with a view to progressively realising the right. Although aspects of the child’s right to health are also dealt with in a range of other CRC provisions, my analysis here will focus primarily on Art 24.

Art 4 of the CRC states that, with regard to the economic, social and cultural rights contained in the instrument, States Parties shall undertake such measures ‘to the maximum extent of their available resources’ and, where needed, within the framework of international co-operation. This is reflected in the language used in the provisions themselves. In addition, Art 24 explicitly refers to the obligations of states ‘to pursue full implementation’ of this right. In General Comment No. 5 on General Measures of Implementation for the Convention on the Rights of the Child, the Committee on the Rights of the Child states that ‘[t]he second sentence of Article 4 reflects a realistic acceptance that lack of resources – financial and other resources – may hamper the full implementation of economic, social and cultural rights in some States’, and that this introduces the concept of the ‘progressive implementation’ of such rights (ComRC 2003c: para 8).³⁵

The Committee has also made it clear that the obligation on states to implement protection ‘to the maximum extent of their available resources’ requires states to demonstrate that they have done so and, where necessary, have sought international cooperation.³⁶ Whatever their economic circumstances, states are required to take all possible measures towards the realisation of the rights of the child, with particular regard to the most disadvantaged groups.³⁷ The Committee has highlighted the similarity of its approach to the Interpretation of Art 4 CRC to that of the CESCR in relation to the issue of maximum available resources under ICESCR.

The Committee on the Rights of the Child has strongly emphasised the linkage between the right to survival and development set out in Art 6 of the CRC and the economic and social rights set out in that instrument.³⁸ The close linkage between Arts 6 and 24 is demonstrated in the Committee’s General guidelines for the Form and Content of Periodic Reports.³⁹ In the section of the guidelines on ‘basic health and welfare’, the Committee asks states to provide relevant information in respect of both Arts 6 and 24 (ComRC 2005a: para 31).

Like all rights set out in the CRC, the child’s right to health must be interpreted in the light of the general principles of the Convention: the duty of non-discrimination (Art 2), the best interests of the child [Art 3(1)], the child’s right to life, survival and development (Art 6) and the child’s right to express her/his views freely in all matters affecting her/him (Art 12). The Committee has incorporated these principles into its interpretation of Art 24 and the other health-related provisions of the CRC. For instance, the Committee has emphasised that all decision-making concerning a child’s health and actions undertaken in relation to health services must take account of the best-interests principle.⁴⁰

The key focus of this chapter is the role played by domestic courts and other judicial and quasi-judicial decision-making bodies in relation to the interpretation and application of the child’s right to health. Clearly, the role played by such bodies is contingent on their ability to address and take account of the child’s right to health in their decision-making – whether in the framework of abstract judicial review or in adjudication based on concrete situations. It is regrettable that the Committee does not, as yet, have an associated complaints mechanism, which would enable rights victims to bring complaints before that body. In addition, the relatively recent adoption of the Optional Protocol to the ICESCR means that the CESCR has not yet had an opportunity to hear any complaints brought under that Protocol. This has limited those Committees’ ability to flesh out the child’s right to health in the context of the real-life experiences of children. It has not, however, prevented them from highlighting the need for the provision of domestic legal remedies for violations of the rights set out in the instruments they monitor. For instance, in its General Comment No. 5, the Committee on the Rights of the Child states that economic, social and cultural rights, as well as civil and political rights, must be regarded as justiciable.⁴¹ In addition, the CESCR has stated that courts should take account of Covenant rights where this is necessary to ensure that the State’s conduct is consistent with its Covenant obligations: ‘[n]eglect by the courts of this responsibility is incompatible with the principle of the rule of law, which must always be taken to include respect for international human rights obligations’.⁴² Crucially, for the purposes of this chapter, when a court is faced with a choice between an interpretation of domestic law that would place the State in breach of the Covenant and one that would enable the State to comply with the Covenant, international law requires the choice of the latter.⁴³

4 The child’s right to health under national constitutions

In addition to being set out in the international and regional human-rights instruments set out above, the child’s right to health has been included in a large number of national constitutions. This is consistent with the significant evidence of a growing tendency towards the express delineation of children’s rights in constitutions (for more, see Tobin 2005), including the right to health. This is undoubtedly attributable to the influence of the CRC and the growing awareness of children’s rights at the domestic level that has followed that instrument’s entry into force. In addition, there is a growing tendency towards the constitutionalisation (and judicial recognition and enforcement) of jusiticiable economic and social rights at both the national and international levels. A survey of 86 national constitutions reveals that 18 explicitly enshrine the child’s right to health or healthcare services or aspects thereof.⁴⁴ In some, the child’s right to health is located under the umbrella of the general right to health provision.⁴⁵ In others, it forms part of the children’s rights guarantee. In a number of constitutions, it is arguably covered in both.⁴⁶ While some provisions outlining the child’s right to health are judicially enforceable, others are not, due to, for example, being included in the constitution as a directive principle of social policy.⁴⁷ Where the child’s right to health is included as a justiciable provision in the constitutional framework, there is far greater scope for judicial protection of that right. However, even where such a right is not justiciable, it still establishes a policy imperative for the legislative and administrative action and exhibits a national commitment to the right to health (Kinney 2004: 301).

Some constitutions explicitly refer to the ‘right’ of the child to healthcare, while others adopt the approach of delineating the state’s duties in such a way as to make it clear that they correspond to a right inhering to the child.⁴⁸ A number of constitutional provisions are phrased in terms of a prohibition on interference with the enjoyment of the right to health. For instance, Art 48 of the 1993 Cambodian constitution directs the state to ‘protect children from acts that are injurious to their … health, and welfare’.⁴⁹ Another constitutional provision that is similar in approach, but which reflects a particular concern with how interference with the child’s right to health might arise, is Art 34(3) of the Ugandan Constitution (1995): ‘No child shall be deprived by any person of medical treatment … by reason of religious or other beliefs’. Both of these provisions are primarily concerned with the obligations of the state to respect and protect children’s rights. Other constitutions, however, clearly envisage the state moving beyond a preventive or protective role to take steps towards the full realisation of the child’s right to health. An example of such an approach was Art 49 of the 1998 Ecuadorian Constitution, which stated, amongst other things, that the state will ‘ensure and guarantee’ the child’s right to comprehensive health – language that suggests strongly that the state must move beyond merely preventing interference with the enjoyment of that right.⁵⁰

A large number of the constitutions surveyed contain provisions that refer or relate to the child’s right to special measures of protection or assistance or the child’s right to development (whether physical, mental, cultural, spiritual or other), which could be interpreted to encompass some elements of the right to health. In fact, a number of ‘protection/development’ provisions explicitly require the state to take measures related to the child’s right to health.⁵¹ The argument that the child’s right to health should be afforded protection by such ‘general protection’ provisions is particularly strong where the right to health of ‘everyone’ is enshrined elsewhere in the constitution.⁵² For instance, Art 37 of the Constitution of Suriname (1987) provides that ‘[y]oung people shall enjoy special protection for the enjoyment of economic, social and cultural rights among which are: a. Access to education, culture and work; b. Vocational schooling; c. Physical training, sports and recreation’, while the right to health of ‘everyone’ is set out in the preceding Art 36. It would seem surprising if one were able to argue successfully that the right to health was not included in the ‘economic, social and cultural’ rights referred to in Art 37.⁵³ A significant number of other constitutions include an obligation on the state to protect minors from hazardous working conditions.⁵⁴ It is notable, however, that many ‘special protection’ constitutional provisions are premised on the notion of children as passive objects in need of special protection rather than as active subjects of rights (Tobin 2005: 105–110).

There are a couple of additional points to be made regarding how constitutions afford protection to children’s rights, which reflect particular attitudes towards children and their rights. First, child-rights-related issues, including the right to health, are often dealt with in the context of constitutional provisions focusing on the rights of a number of vulnerable groups such as older persons.⁵⁵ Similarly, the linkage that is frequently made between childhood and maternity, or children and mothers, in constitutional provisions is also evident in the context of the right to health.⁵⁶

Inevitably, constitutional articles on the child’s right to health vary in terms of prescriptiveness and detail. Having stated in Art 44 that the right to health is a basic right of children, Art 50 of the Colombian Constitution (which forms part of a series of detailed provisions related to the right to health) provides that:

In contrast, Art 22(2) of the Nepalese Final Interim Constitution (2007) consists simply of the broad statement that ‘every child shall have the right to … basic health’, with no additional information on how that right is to be realised. Art 16(2) of that instrument adds little information, merely stating that ‘every citizen shall have the right to get basic health service free of cost from the State as provided for in the law’.

The right to health of the child has also been recognised indirectly within domestic constitutional frameworks that do not deal explicitly with the right to health and/or children’s rights by means of explicit constitutional recognition that particular international human rights treaties ratified by the relevant state form part of and/or take precedence over domestic law.⁵⁷ One recent example is Art 22 of the Republic of Kosovo constitution (2008), which provides that the CRC is directly applicable in Kosovo and, in the case of conflict, has priority over provisions of laws and other acts of public institutions. Under a number of Latin American regimes, instruments enshrining the child’s right to health are accorded constitutional priority and the rights enshrined therein form part of the constitutional rights framework (frequently referred to as ‘hierarchy’ (Courtis 2008a: 165)).⁵⁸ This domestic reliance upon international standards that form part of the constitutional hierarchy has been a particular feature of the Argentine and Colombian cases on the child’s right to health, which we will consider in more detail below. A slightly different approach is evidenced in Section 18 of the Timor-Leste Constitution (2002), which provides that ‘children shall enjoy all rights that are universally recognised, as well as all those that are enshrined in international conventions commonly ratified or approved by the State’.⁵⁹ One such convention is the CRC.

This section has discussed the different ways in which the child’s right to health has been enshrined both at the international and the domestic levels, as well as the perceptions of children that underpin those protections. My analysis will now turn to how such standards have been applied by the courts.

5 The child’s right to health: imposing an additional claim to protection and creating priority?

We have already spoken of the child’s particular vulnerability vis-à-vis other right-holders when it comes to violations of their right to health and, indeed, of any of their rights. This vulnerability or particular disadvantage of children in relation to the right to health has been reflected in the way that the child’s right to health has been enshrined in some domestic and international instruments. The best-known example is Section 28(1)(c) of the South African Constitution. While the right of ‘everyone’ to have access to healthcare set out in Section 27(1) is expressly qualified by available resources and a duty of progressive (rather than immediate) realisation, the right of children to basic healthcare services is not.⁶⁰ This latter right prima facie imposes a direct and immediate obligation upon the State to meet the economic and social rights needs of those groups, although, as we will see in section 6